STATE OF NEW JERSEY v. BRUCE C. PARSON

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

BRUCE C. PARSON, a/k/a MAHFUWZ

SHAHID, a/k/a SHAHID MAHFUWZ,

a/k/a MAHFUWS SHAHID, a/k/a

MAHFUWZ SHADID,

Defendant-Appellant.

___________________________________

June 16, 2014

Submitted May 6, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-12-2192.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Bruce Parson appeals the denial of his motion to suppress DNA evidence obtained from a buccal swab. He also challenges his sentence as excessive. We affirm.

I

On April 22, 2011, defendant was arrested for burglary. During its investigation of three other burglaries, which occurred on February 2, March 23, and April 8, 2011, the Jersey City Police Department (police) found evidence of blood and perspiration at two of the crime scenes. Samples of this evidence were forwarded for analysis to the New Jersey State Police Office of Forensic Sciences (State Police). As defendant had been previously convicted of a crime and provided a blood sample for DNA testing, see N.J.S.A. 53:1-20.24(a), his DNA profile was on file in the Combined DNA Index System (CODIS).

In a letter to the police dated October 24, 2011, the State Police advised that a search of the CODIS database suggested a possible match between the samples taken from the two crime scenes and defendant. The letter went on to say, however, that "[n]o conclusion can be reached regarding Bruce [C.] Parson as a possible contributor to the DNA profile(s) identified in the casework samples without submission of his/her buccal swab control." Without obtaining a search warrant or defendant's consent, on December 8, 2011, the police took a buccal swab from defendant, who was still in custody as a result of his arrest for the April 22, 2011 burglary.

On December 20, 2011, defendant was indicted for third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), for the April 22 incident. On February 22, 2012, defendant was indicted for third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, for the incident on March 23.

While neither of these indictments was generated as a result of any evidence derived from the buccal swab, on March 20, 2012, the State Police issued a report stating there was a "positive identification" between defendant's buccal swab and the evidence found at the scene of the March 23, 2011 burglary, providing incontrovertible evidence defendant had been at that location.

Meanwhile, on February 23, 2012, the State Police issued a report indicating there was a conclusive match between the defendant's DNA and the evidence collected from the scene of the April 8, 2011 burglary, providing incontestable proof defendant had been at the location of that crime scene, as well. Thereafter, defendant was indicted for third-degree burglary, N.J.S.A. 2C:18-2, and theft by unlawful taking, N.J.S.A. 2C:20-3. On June 26, 2012, an accusation was filed against defendant for third-degree burglary, N.J.S.A. 2C:18-2(a), which allegedly occurred on February 2, 2011.

Unaware the police had obtained a buccal swab on December 8, 2011, the prosecutor requested and defendant consented, in open court, to giving a buccal swab on April 2, 2012. This swab was not tested.

On June 26, 2012, the trial court denied defendant's motion to suppress the test results of the buccal swab taken on December 8, 2011. Immediately following the court's decision, defendant pled guilty to burglary in connection with all three indictments. Defendant also pled guilty to the accusation, which was filed that day. In exchange for pleading guilty, the State agreed to recommend that defendant serve seven years, with a three and one-half year period of parole ineligibility, for the burglary committed on April 22, 2011. As for the remaining burglaries, the State agreed to request five years, with a two and one-half year period of parole ineligibility, to run concurrently with the sentence imposed for the April 22, 2011 burglary. On August 24, 2012, defendant was sentenced in accordance with the plea agreement.

II

Defendant raises the following two points for our consideration.

POINT I THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE PROPER PROCEDURES WOULD HAVE BEEN FOLLOWED, AND THAT SUCH PROCEDURES WOULD HAVE INEVITABLY LED TO THE RECOVERY OF THE UNLAWFULLY SEIZED EVIDENCE. FURTHER, THE EVIDENCE USED AGAINST THE DEFENDANT IS NOT THE SAME AS THE EVIDENCE THAT THE STATE ASSERTED WOULD HAVE BEEN INEVITABLY DISCOVERED.

POINT II THE JUDGE MADE NO FINDINGS AND ENGAGED IN NO ANALYSIS IN IMPOSING THE EXTENDED TERM AND DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

A

In his brief, defendant argues the taking of the buccal swab on December 8, 2011 was an unlawful search and seizure because a search warrant had not been obtained and, as defendant was in custody, the circumstances were not exigent. See State v. Edmonds, 211 N.J. 117, 129-30 (2012). He seeks a reversal of the order denying his motion to suppress and a remand for further proceedings. We note the test results of the swab taken on December 8, 2011 pertain only to the crimes alleged to have been committed on March 23, 2011 and April 8, 2011.

The State asserts the taking of the December 8, 2011 swab was not an unlawful search and seizure but, even if it were, the evidence is admissible by operation of the doctrine of inevitable discovery (doctrine). See State v. Sugar, 100 N.J. 214, 240 (1985). Specifically, the State argues that, had it sought a search warrant or a court order under Rule 3:5A-41 to obtain a buccal swab, it likely would have succeeded. The State further contends that the buccal swab consensually taken from defendant on April 2, 2012 would have yielded the same evidence as that found in the December 8, 2011 buccal swab, making the test results of the latter swab admissible under the doctrine.

First, the taking of a buccal swab to obtain DNA evidence is a "search" under the Fourth Amendment to the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. State v. O'Hagen, 189 N.J. 140, 149 (2007) (citing Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1412-13, 103 L. Ed. 2d 639, 659-60 (1989)). Generally, a warrant is required to take a buccal swab unless there exists one of the recognized exceptions to the warrant requirement. Id. at 149-50. Here, none of those exceptions existed and, therefore, the taking of a buccal swab from defendant on December 8, 2011 was unlawful. The issue is whether the evidence derived from such taking can be admitted under the doctrine.

The doctrine permits evidence to be "admissible even though it was the product of an illegal[ity], 'when . . . the evidence in question would inevitably have been discovered without reference to the police error or misconduct[.]'" State v. Sugar III, 108 N.J. 151, 156 (1987) (quoting Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 2511, 81 L. Ed. 2d 377, 390 (1984)). Our Supreme Court has expressed how the doctrine is to be applied:

We require the State to show that (1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[Id. at 156-57 (quoting Sugar, supra, 100 N.J. at 238); see also State v. Johnson, 120 N.J. 263, 289 (1990).]

The State's burden of proof is the clear and convincing standard. Id. at 157.

The fact that the State could have obtained a search warrant or court order to take a buccal swab is insufficient to render the December 8 test results admissible under this doctrine. See State v. Premone, 348 N.J. Super. 505, 509-10, 515 (App. Div. 2002). In Premone, without the benefit of a search warrant, the police looked through and found incriminating evidence in the defendant's shoulder bag. Id. at 509. During a suppression hearing, the State argued, among other things, that had it sought a search warrant, one inevitably would have been granted and thus the evidence was admissible under the doctrine. Id. at 510. We affirmed the trial court's finding that the doctrine

doesn't mean . . . simply that [the State] could have obtained the [evidence] by applying for and securing a search warrant

. . . . Otherwise, . . . you wouldn't need a search warrant simply because you could say, "I could have gotten a search warrant,"

. . . which seems to be a circular type argument.

[Ibid.]

We are nevertheless satisfied the test results of the December 8, 2011 buccal swab are otherwise admissible under the doctrine. As part of a proper, normal, and specific investigatory procedure, the State requested and defendant agreed to provide a buccal swab on April 2, 2012. As defendant even acknowledges in his brief, the test results of the April 2, 2012 swab would have been the same as the December 8, 2011 one. Finally, the evidence obtained on April 2, 2012 was gathered wholly independently of that which was obtained by the unlawful search and seizure of defendant's buccal tissue on December 8, 2011.

We conclude that, under the doctrine of inevitable discovery, the evidence obtained from the December 8, 2011 buccal swab was admissible; therefore, the trial court did not err when it denied defendant's suppression motion.

B

Defendant argues the trial court failed to articulate reasons for imposing an extended, seven-year term for one of the charges of third-degree burglary to which defendant pled. Defendant contends the court should have imposed a maximum term of five-years, with a two and one-half year period of parole ineligibility.

Pursuant to N.J.S.A. 2C:43-7(a)(4), the term for a third-degree crime is to be fixed between five and ten years; however, a court can extend the term under N.J.S.A. 2C:44-3 if the criteria in the statute are met. During sentencing, the trial court indicated it had reviewed the pre-sentence report and considered defendant's criminal history. The pre-sentence report reflects defendant had eight convictions before pleading guilty to the subject crimes, two of which were third-degree offenses that had occurred within the previous six years. The sentence the court imposed was well within its discretion, see N.J.S.A. 2C:44-3(a), to which we are obligated to give deference. See State v. Bieniek, 200 N.J. 601, 612 (2010).

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Under Rule 3:5A-4, the State may obtain an order for investigative detention if a crime has been committed and is under active investigation; there is a reasonable and well-grounded basis to believe that the person to be detained may have committed the offense; the results of the physical characteristics obtained during the detention will significantly advance the investigation and determine whether or not the individual probably committed the crime; and the physical characteristics sought cannot otherwise practicably be obtained.