STATE OF NEW JERSEY v. MICHAEL CASSELLA

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL CASSELLA, a/k/a

MICHAEL J. CASELLA AND

MIKE CASSELLA,

Defendant-Appellant.

___________________________

Argued telephonically February 7, 2014 Decided March 11, 2014

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 12-01-0075.

Donald M. Lomurro argued the cause for appellant (Lomurro, Davison, Eastman & Mu oz, P.A., attorneys; Michael J. Fasano and Richard P. Lommuro, on the briefs).

John McNamara, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; Mr. McNamara, on the brief).

PER CURIAM

Defendant Michael Cassella appeals from the November 13, 2012 order, which denied his motion to suppress the results of a blood test and an empty methadone bottle obtained without a warrant. We affirm.

A grand jury indicted defendant for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and second-degree vehicular homicide, N.J.S.A. 2C:12-5a. Defendant was also charged with the disorderly persons offense of being under the influence of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10b; driving while intoxicated (DWI), N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; and speeding, N.J.S.A. 39:4-99.

The charges against defendant stemmed from a motor vehicle accident that caused the death of on-duty Officer Joseph Wargo of the Mount Arlington Police Department. The accident occurred on Route 80 in Roxbury Township at approximately 12:12 a.m. on October 16, 2011. Defendant's vehicle struck Officer Wargo's patrol vehicle head-on at a high rate of speed, causing the patrol vehicle to careen into the woods and catch on fire.1 Officer Wargo was entrapped and seriously injured. The New Jersey State Troopers on the scene were focused on extricating him and saving his life. After the extrication, Officer Wargo was transported to Morristown Memorial Hospital by medical evacuation helicopter at approximately 12:50 a.m.

In the meantime, Troopers were investigating the accident and speaking to defendant, who exhibited signs of being under the influence of a narcotic. Defendant admitted to the Troopers that he was a recovering heroin addict and had taken methadone earlier that day. He also directed a Trooper to the middle console of his vehicle to obtain his wallet containing his identification. In addition to the wallet, the Trooper seized an empty methadone bottle, which he saw in plain view in the console. Defendant's vehicle was impounded at the scene and subsequently searched pursuant to a search warrant.

A Trooper drove defendant to Morristown Memorial Hospital. They arrived there at approximately 2:00 a.m. Defendant's blood sample, taken at 2:45 a.m., revealed the presence of methadone, codeine, morphine, and Alprazolam.

Defendant did not dispute there was probable cause for his arrest for DWI. Rather, he argued that he did not consent to the taking of the blood sample and there were no exigent circumstances to justify obtaining the sample without a warrant. He also argued that the empty methadone bottle was illegally seized from his vehicle without a warrant.

The motion judge held there was probable cause to arrest defendant, and based on the totality of the circumstances, there were exigent circumstances created by dissipation of narcotics in the blood to justify obtaining the blood sample without a warrant. The judge also determined that the document search and plain view exceptions justified the warrantless seizure of the empty methadone bottle or, alternatively, the inevitable discovery exception applied.

Following the denial of his motion to suppress, defendant pled guilty to first-degree aggravated manslaughter and DWI. On March 1, 2013, the judge imposed a twenty-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also suspended defendant's driver's license for seven months following his release from prison.

On April 17, 2013, the United States Supreme Court decided Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). The Court held that dissipation of alcohol in the blood alone is insufficient to constitute an exigent circumstance under the exigency exception to the Fourth Amendment warrant requirement. Id. at ___, 133 S. Ct. at 1557-58, 185 L. Ed. 2d at 703-04.

On April 24, 2013, defendant filed this appeal, primarily contending that McNeely should be applied retroactively.2 While this appeal was pending, we decided State v. Adkins, 433 N.J. Super. 479 (2013), in which we held that McNeely should not be applied retroactively under State retroactivity law to suppress the results of blood tests taken without a warrant. Id. at 486. Citing State v. Harris, 211 N.J. 566, 590 (2012), we also concluded in Adkins that the exclusionary rule did not apply to suppress the results of blood tests taken without a warrant because "there was no mistake by the police, good faith or otherwise. At the time of the search, their conduct was lawful under well-established case law in this State." Id. at 491.

We adopt the well-reasoned and comprehensive analysis expressed in Adkins. The Troopers here relied on then-binding State case law that held that dissipation constituted a per se exigency when there was probable cause of intoxication. And, there is no dispute that the Troopers had probable cause to arrest defendant for DWI.

We have considered defendant's contention that the search of his vehicle was unlawful in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that the inevitable discovery exception to the exclusionary rule applied to the seizure of empty methadone bottle found defendant's vehicle. State v. Sugar (II), 100 N.J. 214, 235 (1984).

1 Defendant was traveling westbound at approximately eighty-nine miles per hour when he lost control of his vehicle and crossed the grass median into the eastbound lanes. After the impact, his vehicle came to rest perpendicular to the eastbound center and right lanes.

2 We granted defendant's motion for leave to file an appeal as within time.