STATE OF NEW JERSEY v. CEZARY LIPERT

NOT FOR PUBLICATION WITHOUT THE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.

CEZARY LIPERT, a/k/a CEASAR J.

LIPERT,

Defendant-Appellant.

___________________________________

August 17, 2015

Submitted March 24, 2015 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 12-03-0314.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After the denial of his motion to suppress oral statements and the results of a blood alcohol test, defendant pleaded guilty to fourth-degree operating a motor vehicle during a period of license suspension, N.J.S.A. 2C:40-26(a); and driving while under the influence of intoxicating liquors, N.J.S.A. 39:4-50. On appeal, defendant contends that statements he made to a police officer near the scene of a two-car collision were the product of a custodial interrogation, and therefore should have been suppressed because the officer did not provide a Miranda1 warning before questioning. He also argues that the results of a blood test should have been suppressed because the blood was drawn from defendant without a warrant, and without exigent circumstances, after he was transported to a hospital on complaints of chest pain. Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.

I.

We discern the following facts from the record of the suppression hearing on February 14, 2013. The sole witness was Denville Police Officer David Longo.

Longo testified that at around 1:20 p.m. on October 6, 2011, he and a partner responded to a 9-1-1 report of a motor vehicle accident on Diamond Spring Road. Once on the scene, Longo observed a Honda CRV parked on the side of the northbound lane. It had been struck on the driver's side. About 100 feet beyond the Honda was a Toyota Sienna with front-end damage. Gouge marks in the pavement led from the Honda to the Toyota.

The 9-1-1 caller, who was at the scene, apparently spoke to Longo in person, and directed his attention to an individual later identified as defendant walking northbound, away from the vehicles. Longo and his partner approached in their patrol car, got out, and walked toward defendant. Longo repeatedly commanded defendant to stop. Defendant eventually complied. Longo then asked defendant a series of questions. Longo asked where defendant was going, and defendant said he was going home. He asked defendant if he was involved in an accident and defendant said he was. Defendant also confirmed that he was driving the Toyota. Longo asked defendant if he needed an ambulance, and, at that time, defendant replied no.

During this questioning, defendant was not physically restrained. Longo noted that a strong smell of alcoholic beverage emanated from defendant's mouth, and he was unsteady on his feet. Longo asked for defendant's driver's license, and defendant stated he did not have one because he was from Europe. Longo elicited defendant's name and date of birth. Longo then asked defendant if he had been drinking. Defendant admitted he had. Longo inquired further, and elicited defendant's statement that he had consumed six beers, beginning at 9:00 a.m. that morning. Longo then asked defendant to perform field sobriety tests. At some point, Longo conducted a protective pat down search of defendant, and seized his cell phone.2

Sometime after he was asked to perform the field sobriety tests, defendant complained of chest pains and said he needed a "nitro pill." Longo asked dispatch to send an ambulance, which arrived about ten minutes later, and transported defendant and Longo to St. Clare's Hospital, about a mile away.

Once defendant was admitted to the hospital, Longo advised him that he was under arrest for driving while intoxicated. A blood kit was brought to the hospital from police headquarters. Longo informed defendant that his blood would be drawn to determine his blood alcohol content (BAC). Longo gave the kit to a nurse, who drew blood from defendant. Although Longo did not obtain defendant's express consent, defendant did not object or protest, and remained "calm and compliant" during the test. The blood draw occurred roughly thirty minutes after Longo's initial contact with defendant. The test reflected a BAC of .251.

Longo testified that a breath test was not feasible at the hospital, because the department's testing devices were at headquarters, and the department did not have portable machines. Defendant was not brought to headquarters because he needed medical attention at the hospital. Longo also did not request a telephonic warrant to authorize the blood draw, although he stated he was trained in how to request such a warrant. Asked why he did not request a warrant in this case, Longo replied, "[I]n those circumstances there was not a need for a search warrant." He explained that he was trained that a warrant was not needed under the circumstances presented.

Longo thereafter advised defendant of his Miranda rights, and defendant orally acknowledged that he understood his rights, and agreed to waive them. Longo explained that he did not administer the Miranda warning at the accident scene because he did not consider defendant in custody, and Longo was just trying to ascertain what happened. Defendant answered Longo's questions from a drunk-driving questionnaire, in which he confirmed that he had six beers starting at 9:00 a.m. He stated he had the last drink at 10:00 a.m., and had not eaten anything that day.

Defendant was indicted in April 2012, and charged with operating a motor vehicle during a license suspension, N.J.S.A. 2C:40-26a. In addition to the DWI violation, he was charged with several other motor vehicle violations.

After resolution of the suppression motion, defendant entered his plea on March 13, 2013. At defendant's request, his sentencing was adjourned until September 2013.3 On the fourth-degree offense, he was sentenced in accord with the plea agreement to one year of probation, conditioned upon a 180-day jail term. He received a concurrent 180-day jail term on the DWI conviction, which was defendant's third or more such violation. Defendant's driving privileges were suspended for two years on the criminal conviction, and ten years on the DWI. The remaining motor vehicle violations were dismissed as part of his plea agreement.

II.

In his Miranda motion, defendant argued that the pre-warning statements should be excluded because defendant was in custody. As for the motion to suppress the blood test results, defendant argued that suppression should be ordered because the State failed to demonstrate exigency under the totality of the circumstances. Defendant argued that the dissipation of alcohol did not by itself satisfy the exigency requirement.4

The State argued defendant was not in custody so as to require Miranda warnings. Regarding the blood test, the State argued that the police action was justified by exigent circumstances, which included not only the natural dissipation of alcohol in defendant's system, but also defendant's medical distress, which required his immediate transport to the hospital.

The judge determined that Miranda warnings were not required before Longo's on-the-scene questioning because the interrogation was not custodial. She relied on the principles set forth in Miranda that "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process" does not require Miranda warnings. Miranda, supra, 384 U.S. at 477, 86 S. Ct. 1629, 16 L. Ed. 2d at 725. The judge applied the factors identified in State v. Smith, 374 N.J. Super. 425, 431 (App. Div. 2005), for determining whether a suspect is in custody: "the time, place and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect."

The court reasoned that the questioning occurred in the middle of the day; Longo was prompted by another individual to question defendant; after asking defendant to stop, Longo asked him a number of questions about the accident, and whether he needed an ambulance. The questioning occurred outside. It lasted just "moments." And there was no evidence defendant was restrained. The court concluded, "[T]he nature and degree of the pressure applied to the Defendant as testified by the officer do not rise to the level of a custodial interrogation."

With respect to the motion to suppress the results of the blood sample, the trial court found that exigent circumstances justified the blood draw. At the time of the court's decision, the United States Supreme Court had not yet decided Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) although it had been argued. The Supreme Court in McNeely clarified that Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) did not stand for the proposition that the natural dissipation of alcohol in the bloodstream presents a "per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases." McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702. Our Supreme Court later recognized that its pre-McNeely decisions "provide[d] a basis for . . . a belief" that, "Schmerber . . . per se permitted warrantless blood draws in all cases on the basis of alcohol dissipation alone." State v. Adkins, 221 N.J. 300, 316 (2015) (citing State v. Ravotto, 169 N.J. 227 (2001); State v. Dyal, 97 N.J. 229 (1984)).

The trial judge reviewed Ravotto and Dyal, as well as Schmerber. The court noted that exigent circumstances were found in Schmerber; the defendant drove his car into a tree, was taken to a hospital, and then subjected to a blood draw, where delay to obtain a warrant threatened the destruction of the evidence. The trial judge also observed that the Ravotto Court found a blood draw unreasonable because the defendant expressed a strong fear of needles, offered to give a breath sample, and physically resisted the blood draw; however, none of those circumstances were present in this case. Applying these authorities, the court concluded that exigent circumstances were present justifying the warrantless blood draw.

III.

Defendant presents the following issues on appeal

POINT I EVEN IF MISSOURI V. MCNEELEY IS NOT TO BE APPLIED TO THIS APPEAL BECAUSE THE SEIZURE OCCURRED PRIOR TO THE UNITED STATES SUPREME COURT'S DECISION, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE RESULTS OF THE BLOOD ALCOHOL TEST PERFORMED ON DEFENDANT BECAUSE THE SEIZURE OF THE EVIDENCE WAS NOT IN CONFORMITY WITH THE LAW AS IT EXISTED AT THE TIME OF THE SEIZURE.

POINT II THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S ORAL STATEMENTS MADE TO OFFICER LONGO WERE ADMISSIBLE BECAUSE THEY WERE OBTAINED IN VIOLATION OF MIRANDA V. ARIZONA "IN-CUSTODY" AND "INTERROGATION" CRITERIA.

After the Court issued its decision in Adkins, defendant supplied a supplemental letter, pursuant to Rule 2:6-11(d), arguing that McNeely compels reversal of the court's order denying suppression of the blood test results. On the other hand, in two Rule 2:6-11(d) letters, the State argues that the blood draw should be sustained under McNeely, consistent with decisions of another panel of our court in State v. Jones, 437 N.J. Super. 68 (App. Div. 2014) (Jones I), and ___ N.J. Super. ___ (App. Div. 2015) (Jones II).

IV.

We consider first the alleged Miranda violation. We engage in a "searching and critical" review of a trial court's denial of a motion to suppress an alleged violation of Miranda in order to protect a defendant's constitutional rights. State v. Hreha, 217 N.J. 368, 381-82 (2014) (internal quotation marks and citation omitted); State v. Patton, 362 N.J. Super. 16, 43 (App. Div.), certif. denied, 178 N.J. 35 (2003). Nonetheless, we defer to the trial court's fact-findings, if supported by sufficient, credible evidence in the record. Hreha, supra, 217 N.J. at 382.

We discern no error in the court's finding that Longo's questioning of defendant was not a custodial interrogation. The familiar Miranda warnings were required to combat the inherent coerciveness of custodial interrogation. "[A] custodial interrogation by law enforcement officers is inherently coercive" in part because of the "inherent psychological pressure on a suspect in custody." State v. P.Z., 152 N.J. 86, 102 (1997). "Miranda turns on the potentially inquisitorial nature of police questioning and the inherent psychological pressure on a suspect in custody." Ibid.

A court must consider the totality of the circumstances in determining whether an interrogation is custodial. Id. at 102, 113. For example, an interrogation is not rendered custodial simply because it occurs in a police station. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977); see also State v. Downey, 206 N.J. Super. 382, 396-97 (App. Div. 1986) (finding initial rounds of questioning at police station were not custodial because the defendant retained freedom of action). On the other hand, an interrogation may be considered custodial, despite the absence of a formal arrest or physical restraints. P.Z., supra, 152 N.J. at 103. "The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors." Ibid. A court must consider how a reasonable person under the circumstances would have perceived his or her situation. State v. Carlucci, 217 N.J. 129, 144 (2014).

We reiterate the Mirandaprinciple cited by the trial court: "General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process" does not require Mirandawarnings. Miranda, supra, 384 U.S.at 477, 86 S. Ct.at 1629, 16 L. Ed. 2d at 725. The United States Supreme Court, as well as our courts, have distinguished between detaining a citizen in the course of an investigatory stop, pursuant to Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968), and placing a citizen in custody so as to trigger Mirandarequirements. SeeBerkemer v. McCarty, 468 U.S. 420, 435-442, 104 S. Ct. 3138, 3147-52, 82 L. Ed. 2d 317, 331-36 (1984); Smith, supra, 374 N.J. Super.at 432-35.

In Berkemer, an officer conducting a traffic stop asked the defendant whether he had been using intoxicants; the officer had already decided he was going to arrest the defendant, but had not yet conveyed that to the defendant, nor placed him in his patrol car. The defendant admitted he had used intoxicants. His statement was admissible notwithstanding the absence of a Mirandawarning. Berkemer, supra, 468 U.S. at 423, 441-42, 104 S. Ct. at 3141, 3151-52, 82 L. Ed. 2d at 324, 335-36.

The Court noted that features of an ordinary traffic stop generally do not implicate the concerns that underlie adoption of the Mirandawarning: the traffic stop is ordinarily brief, and "questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." Id.at 437-38, 104 S. Ct.at 3149, 82 L. Ed. 2d at 333. Also, in a typical traffic stop, the motorist does not "feel[] completely at the mercy of the police." Id.at 438, 104 S. Ct.at 3149, 82 L. Ed. 2d at 333. "[T]he atmosphere surrounding an ordinary traffic stop is substantially less 'police dominated' than that surrounding the kinds of interrogation at issue in Mirandaitself . . . ." Id.at 438-39, 104 S. Ct.at 3149, 82 L. Ed. 2d at 334.

As we explained in Smith

Despite the restraint on freedom of action involved in Terryand traffic stops, an officer is not required to give Mirandawarnings before asking questions reasonably related to dispelling or confirming suspicions that justify the detention. Berkemer, supra, 468 U.S.at 439-40, 104 S. Ct.at 3150, 82 L. Ed. 2d at 334. Mirandawarnings are required only if the stop, due to its duration or other attendant circumstances, "is fairly characterized as the functional equivalent of an arrest." Berkemer, supra, 468 U.S.at 442, 104 S. Ct.at 3150, 82 L. Ed. 2d at 336. . . . State v. Dickey, 152 N.J.468, 478 . . . (1998) (Terrystop becomes a de factoarrest when officer's conduct is unreasonably intrusive). Minimally intrusive curtailments of freedom of action reasonably related to securing the safety of the officer and others present at the scene during the investigation do not convert a proper Terrystop into a formal arrest. . . .

Because Terry and traffic stops necessarily involve some restraint on freedom of action, the question is not whether a reasonable person would feel free to leave at the inception of the questioning. The question is whether a reasonable person, considering the objective circumstances, would understand the situation as a de facto arrest or would recognize that after brief questioning he or she would be free to leave.

[Smith, supra, 374 N.J. Super. at 431-32.]

See also State v. Ebert, 377 N.J. Super. 1, 9-10 (App. Div. 2005) (stating no Miranda warning required when officer questions apparently intoxicated driver who cannot locate her car in a restaurant parking lot); State v. Pierson, 223 N.J. Super. 62, 65-68 (App. Div. 1988) (finding that interrogation was not custodial, so as to trigger Miranda, where officer conducted traffic stop, and questioned the defendant while he was in his car, and accompanied him to a nearby building to confirm his assertion that he was there to see his girlfriend); State v. Weber, 220 N.J. Super. 420, 424 (App. Div.), certif. denied, 109 N.J. 39 (1987); State v. Green, 209 N.J. Super. 347, 350-51 (App. Div. 1986).

Applying these principles, we discern no error in the trial court's determination that defendant was not in custody. It is of no moment that Longo suspected defendant of DWI soon after approaching him. Although Longo commanded defendant to stop, the detention was not prolonged. There is no evidence that Longo was overbearing, or threatening. Defendant was standing on the side of the road in the middle of the day in the presence of at least one other civilian. Defendant was not physically restrained. Longo did not inform defendant he was under arrest until after he arrived at the hospital, at which point Longo administered the Miranda warning. In sum, we affirm the trial court's denial of defendant's motion to suppress his oral statements.

V.

We also affirm the trial court's denial of the motion to suppress the blood test results.

We are bound by McNeely, as defendant's case was in the pipeline when McNeely was decided. Adkins, supra, 221 N.J. at 303. Under McNeely

dissipation of alcohol from a person's bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body's natural dissipation of alcohol.

[Adkins, supra, 221 N.J. at 312.]

Although dissipation of alcohol is "one factor," it is nonetheless entitled to "substantial weight." Id. at 312, 317. Moreover, the surrounding events may lend added support to a finding of exigency. The warrantless blood draw was justified in Schmerber, which involved an automobile accident investigation, and the transport of the defendant to a hospital. Schmerber, supra, 384 U.S. at 758-59, 86 S. Ct. at 1829-30, 16 L. Ed. 2d at 912-13. By contrast, McNeely involved "unquestionably a routine DWI case in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency." McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d at 703 (internal quotation marks and citation omitted).

Law enforcement may present "their basis for believing that exigency was present in the facts surrounding the evidence's potential dissipation and police response under the circumstances to the events involved in the arrest." Adkins, supra, 221 N.J. at 317. Furthermore, in pipeline cases in which police "may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from [the] Court," courts shall "focus on the objective exigency of the circumstances that the officer faced in the situation." Ibid.

Applying these principles, the panel held in Jones I and Jones II that a warrantless blood draw was justified by the totality of the circumstances. The defendant in that case was in an automobile accident that involved numerous law enforcement, fire-fighting, and medical personnel. The defendant had to be extricated from her vehicle, was unconscious at the scene, and had to be taken to a nearby hospital. The defendant emitted the odor of alcoholic beverages. After the defendant regained consciousness, an officer questioned the defendant, who admitted consuming at least one alcoholic drink. Blood was drawn at about an hour and fifteen minutes after the crash. The investigation at the accident scene continued for several hours. Jones I, supra, 437 N.J. Super. at 71-72.

The panel held that exigent circumstances were present. "Viewing the circumstances here objectively, we are satisfied the officer 'might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the "destruction of evidence."'" Jones II, supra, ___ N.J. Super. at ___ (quoting Schmerber, supra, 384 U.S. at 770, 86 S. Ct. at 1835, 16 L. Ed. 2d at 919-20).

We reach the same conclusion here, notwithstanding that the collision in this case was not as serious as that described in Jones I and Jones II.5 Longo testified that he believed he was not required to obtain a warrant based on his training. We thus "focus on the objective exigency of the circumstances that the officer faced in the situation." Adkins, supra, 221 N.J. at 317.

Dissipation of alcohol was a substantial factor. Defendant stated that he had consumed six beers in the morning. Thus, significant time had already passed before the accident occurred. Another thirty-minutes passed before the blood draw at the hospital.

Other factors also supported a finding of exigency. Defendant was involved in an automobile collision. While Longo's partner remained at the accident scene, Longo accompanied defendant to the hospital because defendant complained of chest pains. Longo had placed defendant under arrest at the hospital, before the blood test, based on the probable cause that already existed. Longo was the only officer at the hospital. Presumably, Longo was responsible for taking defendant into custody upon his release from the hospital. It is obvious that obtaining a warrant would have involved delay and additional personnel, which could have further threatened the destruction of the blood alcohol evidence. We are satisfied these circumstances justified the warrantless blood draw.

Affirmed.

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

2 Longo did not address the pat down in his testimony. However, it was apparently an undisputed fact set forth in one or both of the parties' submissions to the court, as the judge referred to the pat down in her findings.

3 Defendant unsuccessfully sought a "stay" of the custodial portion of the sentence pending appeal.

4 Defendant also challenged admission of his statements on the grounds that his intoxication rendered them involuntary. The court rejected that argument, citing State v. Wade, 40 N.J. 27, 35, cert. denied, 375 U.S. 846, 84 S. Ct. 100, 11 L. Ed. 2d 73 (1963), and State v. Warmbrun, 277 N.J. Super. 51, 64 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Defendant does not renew that argument on appeal. Defendant also successfully moved to suppress the evidence seized from his cell-phone.

5 Although the Court in Adkins, supra, contemplated that pipeline cases would generally require remands for law enforcement to present their basis for believing an exigency existed, 221 N.J. at 317, we discern no necessity for a remand in this case. The record is sufficient, and the State argued below that facts in addition to the dissipation of alcohol justified the blood draw.