STATE OF NEW JERSEY v. SUNDEEP S. SEKHON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SUNDEEP S. SEKHON,

Defendant-Respondent.

___________________________________

June 4, 2014

Argued April 29, 2014 - Decided

Before Judges Messano, Sabatino and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-02-0410.

Julie H. Horowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Horowitz, on the brief).

Joseph A. Levin argued the cause for respondent (Law Offices of Joseph A. Levin, LLC, attorneys; Mr. Levin, on the brief).

PER CURIAM

This interlocutory appeal arises out of a fatal one-car accident occurring in Absecon at about 10 p.m. on June 4, 2011. Defendant Sundeep S. Sekhon drove the car off the road and struck a utility pole, snapping it in half. Defendant's cousin, who was a passenger in the front seat, died in the crash. Police who responded to the scene detected alcohol on defendant's breath, and his eyes appeared bloodshot. Defendant admitted to them that he had consumed two drinks earlier that night.

Defendant did not report any injuries to the police. Nevertheless, he agreed to be taken to a local hospital a few miles away to be checked for internal injuries. The officer at the scene was unable to conduct a sobriety test because defendant was taken away in an ambulance. Once defendant arrived at the hospital, a police officer and a nurse drew his blood without his consent and without seeking a telephonic warrant. The blood sample yielded a .062 blood alcohol content ("BAC"), which is below the presumptive legal limit of .08, see N.J.S.A. 39:4-50(a), but which is still evidential that defendant was drinking and may have been driving while under the influence. Defendant was then indicted for second-degree vehicular homicide, N.J.S.A. 2C:11-5. That indictment is pending and the case is awaiting trial.

Defendant moved to suppress the blood test results, relying on the United States Supreme Court's April 17, 2013 decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), which held that, given modern technology and the increased ease and speed in which a warrant more often can be procured, exigency can no longer be presumed in blood draw cases. The Court held that a warrant is required by the Fourth Amendment unless the totality of circumstances show exigency and there is probable cause to believe that defendant is intoxicated. Id. at ___ U.S. ___, 133 S. Ct. at 1563, 185 L. Ed. 2d at 709.

After conducting an evidentiary hearing, the Law Division judge granted the motion to suppress. In his oral ruling on September 25, 2013, the judge concluded that McNeely should be applied to this case, since the indictment was pending at the time McNeely was decided in 2013. Applying the McNeely standards, the judge concluded for numerous reasons that there were no exigent circumstances here1 and that the police could easily have reached a judge by phone and obtained a warrant within about twenty minutes.

About three months after the trial court's ruling, another panel of this court issued a published opinion in December 2013 in State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013), certif. granted, ___ N.J. ___ (2014), holding that the exclusionary rule does not require suppression of warrantless blood tests after a motor vehicle stop that occurred before McNeely was decided, if the police acted in good faith reliance on then-existing New Jersey law allowing such warrantless blood extractions and there was probable cause to believe that the driver was under the influence.

The State moved for leave to appeal in this case, which we granted. In seeking to overturn the trial court's suppression order, the State mainly relies on Adkins. The State further contends that, even if McNeely applies to this 2011 motor vehicle stop, the trial court erred in finding no exigent circumstances here. Defendant, on the other hand, argues that Adkins was wrongly decided and should not be applied here. He further argues that, assuming that Adkins is inapplicable, there are ample reasons to sustain the trial judge's findings of lack of exigency.

After oral argument in this appeal, the New Jersey Supreme Court granted certification in Adkins on May 20, 2014. Given that development, we apply Adkins as the current controlling precedent, subject, of course, to the Supreme Court's ultimate disposition of that case and the Court's guidance on how "pipeline" cases such as this one involving pre-McNeely blood draws should be resolved. The trial court's suppression order is therefore reversed.

For sake of completeness, however, we do note that if contrary to Adkins, the requirements of McNeely do apply to this 2011 blood draw, there is sufficient credible evidence in the record to support the trial judge's conclusion that it was feasible to obtain a timely search warrant to authorize blood draw in this case, and that the situation was not so exigent to justify a non-consensual, warrantless extraction. State v. Locurto, 157 N.J. 463, 470-72 (1999) (noting the deference appellate courts owe to factual findings of trial judges based on substantial credible evidence in the record). There were ample police personnel involved at the scene of the accident to secure the location and enable an officer to initiate the steps to secure a telephonic warrant. We see no reason to disturb the trial judge's conclusion that the police likely could have reached a judge on emergent duty within about twenty minutes and presented a warrant application.

Reversed and remanded. We do not retain jurisdiction.

1 Defendant does not contest the presence of probable cause.