STATE OF NEW JERSEY v. MICHAEL PETILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0640-15T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MICHAEL PETILLO,

Defendant-Respondent.

____________________________________

June 21, 2016

Submitted March 2, 2016 Decided

Before Judges Fuentes, Koblitz and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 14-06-0705.

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for appellant (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Law Offices of Robert L. Tarver, Jr., attorney for respondent (Mr. Tarver and Jeff Thakker, on the brief).

PER CURIAM

A Mercer County Grand Jury returned Indictment No. 14-06-0705 charging defendant Michael Petillo with one count of second degree death by auto, N.J.S.A. 2C:11-5, and two counts of third degree aggravated assault, N.J.S.A. 2C:12-1(c)(2), for operating a motor vehicle in a reckless manner, in violation of N.J.S.A. 39:4-50, thereby causing serious bodily injury. The charges stemmed from an accident that occurred on January 11, 2014, in the Township of Ewing, in which defendant allegedly caused the death of Tania Walcott-Montgomery, as well as serious bodily injury to Alecia Scruggs-Hill and Danielle Landry-Elan by recklessly operating his motor vehicle while under the influence of narcotic drugs or intoxicating liquor.

After arraignment, defendant moved to suppress all evidence obtained by the State in violation of his Fifth Amendment right against self-incrimination, including statements defendant allegedly made in response to questions from law enforcement investigators while defendant was in custody and before he was informed of his rights under Miranda.1 Defendant argues the State used this unconstitutionally gathered information to obtain a telephonic search warrant, compelling him to submit to the extraction of a blood sample to determine if he was under the influence of any intoxicating substances at the time of the accident.

Defendant's motion to suppress came for disposition before Judge Robert C. Billmeier, who was not the judge who issued the telephonic search warrant. Judge Billmeier conducted an evidentiary hearing, pursuant to N.J.R.E. 104(a), at which the State presented the testimony of State Police Trooper Quaron A. Crenshaw and moved into evidence five documentary exhibits, including the transcript of the telephonic hearing conducted by the judge who issued the search warrant and police reports related to the investigation of the accident scene.

After considering the evidence presented and the legal arguments of counsel, Judge Billmeier granted defendant's motion and suppressed the results of the chemical analysis of defendant's blood. Judge Billmeier stated his factual findings and set forth his legal analysis in a memorandum opinion dated August 13, 2015. He found Trooper Crenshaw did not advise defendant of his rights under Miranda before questioning him about his role in the accident. Although defendant was in a hospital at the time Trooper Crenshaw questioned him, Judge Billmeier found defendant was nevertheless in the custody of law enforcement because he was not free to leave. Trooper Crenshaw was thus required to obtain defendant's informed and knowing waiver of his rights under Miranda before asking him any questions about the accident.

The prosecutor did not dispute defendant was in police custody when he was questioned by Trooper Crenshaw in the hospital. However, the prosecutor claimed defendant had already been Mirandized when Crenshaw began his interrogation and learned defendant had taken Flexeril, Naproxen, and half of a Percocet. Judge Billmeier did not find competent evidence to support the State's position in this respect.

While Trooper Crenshaw testified he believed he provided Defendant his Miranda rights prior to questioning him in his hospital room, the court finds all [of] the trooper's reports confirm that Miranda rights were not given to Defendant until after the telephonic warrant had been issued by [the judge].

In light of these factual findings, Judge Billmeier held the State used "illegally obtained statements [from defendant] to obtain a telephonic search warrant" compelling defendant to submit to the measures taken by the hospital personnel to "seize" his blood for the purpose of determining whether defendant had ingested or was under the influence of intoxicating substances at the time of the accident.

By leave granted, the State now appeals arguing Judge Billmeier erred in determining "the telephonic warrant was issued based on illegally obtained evidence." We disagree and affirm substantially for the reasons expressed by Judge Billmeier in his memorandum opinion. The State's application for a telephonic warrant to obtain a sample of defendant's blood was supported exclusively by Trooper Crenshaw's sworn testimony. The warrant judge relied on the following testimony to find probable cause for the issuance of the warrant

[WARRANT JUDGE]: Could you briefly summarize the facts that set forth the basis for . . . the request? . . .

CRENSHAW: Yes . . . I'm pretty sure that we were called out to an accident on 195, 95 South at 01. There was, it came out as a two car accident. It ended up being two separate accidents. The first accident occurred when the vehicle gray Camry struck the guard rail and crossed over two lanes. . . forcing vehicle number two which was a gray Volvo to swerve off the road to the right. . . . [T]his caused vehicle number two to . . . impact the ditch and caused major trauma to three of the victims in the car. One is brain dead now and the other two are . . . closed head concussions. I then came to the hospital spoke with the . . . occupant of the gray Camry after speaking with him. He advised me that he took . . . three muscle relaxers one being Flexeril, Naproxen as well as a half of [a] . . . Percocet. . . . [H]e advised me that he thought a car hit him. He didn't hit a car. Another car did not hit him. He actually hit the guard rail . . . causing the other vehicle to swerve off the road in the ditch.

[WARRANT JUDGE]: . . . [T]he application is for [a] blood sample to be drawn from the driver of Camry is that correct?

CRENSHAW: Yes sir.

Judge Billmeier correctly found that this information was obtained by Trooper Crenshaw from questioning defendant while he was in a custodial setting in the hospital. Indeed, the State stipulated before Judge Billmeier that defendant was in police custody when Crenshaw interrogated him. The prosecutor claimed that Crenshaw advised defendant of his rights under Miranda before questioning. However, the prosecutor also candidly admitted that the State could not produce a document showing defendant voluntarily and knowingly waived his rights under Miranda and agreed to answer Crenshaw's questions.

[JUDGE BILLMEIER]: . . . Do we have any waiver in this case?

[PROSECUTOR]: We do not.

. . . .

[PROSECUTOR]: We do not. We do not, we have -- the only thing to substantiate that Your Honor is the trooper's testimony. And in that regard, again, obviously it is a question of whether the Court views him as a credible witness.

[JUDGE BILLMEIER]: But . . . my point is even if I find him credible that he gave him Miranda Rights in the hospital room before he question him, apparently it's the protocol of the New Jersey State Police not to get a waiver from any suspect, as you Mercer County Prosecutor's train your detectives to get a waiver.

[PROSECUTOR]: That's correct Judge.

Judge Billmeier specifically found that Crenshaw did not advise defendant of his rights under Miranda "until after the telephonic warrant had been issued [by the warrant judge]." Judge Billmeier also found Crenshaw was not aware of the need to obtain a warrant to compel a defendant to submit to an extraction of blood under these circumstances until he "had a conversation with his superior and was advised that under a change in the law (Missouri v. McNeely, 133 S. Ct. 1552 (2013)),[2] he should seek a telephonic warrant from the on-call Mercer County Superior Court Emergent Judge."

"We are bound to uphold a trial court's factual findings in a motion to suppress provided those 'findings are supported by sufficient credible evidence in the record.'" State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). The controlling facts found by Judge Billmeier are supported by competent evidence in the record and are thus binding on us on appeal. Even accepting, as the State claims, that Trooper Crenshaw informed defendant of his rights under Miranda before engaging in a custodial interrogation, there is absolutely no basis to find, beyond a reasonable doubt, that defendant made a knowing, intelligent, and voluntarily waiver of these rights. State v. Hubbard, 222 N.J. 249, 267 (2015) ("[T]he State bears the burden of proving beyond a reasonable doubt that a defendant's confession is voluntary and not resultant from actions by law enforcement officers that overbore the will of a defendant.").

A defendant's right to remain silent is "so venerated and deeply rooted in this state's common law that it has been deemed unnecessary to include the privilege in our State Constitution.'" State v. Diaz-Bridges, 208 N.J. 544, 563 (2012) (quoting State v. O'Neill, 193 N.J. 148, 176 (2007)).3 Here, there is no question that the judge who issued the telephonic warrant was unaware that the information provided by Trooper Crenshaw was obtained in violation of defendant's right to remain silent. Judge Billmeier thus correctly suppressed any evidence gathered by the State in violation of this "venerated" right.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The United States Supreme Court's decision in McNeely, supra, held that "in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." U.S. at , 133 S. Ct. at 1568, 185 L. Ed. 2d at 715. In State v. Adkins, 221 N.J. 300, 303 (2015), our Supreme Court held "that McNeely's pronouncement on the Fourth Amendment's requirements must apply retroactively to cases that were in the pipeline when McNeely was issued." The Adkins Court also held "that law enforcement should be permitted . . . to present to the court their basis for believing that exigency was present" under the prevailing facts and the police officer's response under the circumstances of the arrest. Id. at 317.

3 However, the privilege against self-incrimination has been codified in identical language in both statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503.