STATE OF NEW JERSEY v. RAFAEL CAMEY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4376-16T2


STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

RAFAEL CAMEY,

     Defendant-Respondent.
_______________________________

              Submitted October 30, 2017 – Decided December 28, 2017

              Before Judges Ostrer and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              14-11-0923.

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for appellant (Tom Dominic Osadnik,
              Assistant Prosecutor, of counsel and on the
              brief).

              Sutnick and Sutnick, LLC, attorneys for
              respondent (Laura C. Sutnick, on the brief).

PER CURIAM

        Upon leave granted, the State appeals from an April 26, 2017

order of the trial court denying its motion to admit defendant's

DNA evidence under the inevitable discovery rule, denying its
motion to compel a buccal swab, and granting the defense motion

allowing certain personnel records to be admissible at trial.                We

affirm.

                                        I.

     On Monday, September 30, 2013, the Passaic Police Department

received a call reporting a dead woman near a bank of the Passaic

River.    The 911 call came from T.M.,1 who had previously provided

police with information.         On October 1, 2013, the police brought

T.M., who appeared to be under the influence of narcotics, to the

police station to give a formal statement.           There, she identified

the deceased as "the new girl on the block," whom she had last

seen the prior evening at around 11:00 p.m. with a "violent Mexican

male."    T.M. asserted the man had previously attacked both her and

another woman, A.M.H.       T.M could not identify anyone from the

police database, but agreed to contact the police if she saw the

individual again.

     On   October   4,   2013,    the    police   spoke   with   A.M.H.,   who

identified her previous attacker as E.M., who is not defendant.

The police interviewed E.M. and took a buccal swab.                That same

day, T.M. was interviewed a second time, again appearing to be

under the influence of narcotics.            She reasserted that she had


1
   To protect the identity of the informant and others not a party
to this appeal, we use initials.

                                        2                             A-4376-16T2
seen the victim in the company of a "violent Mexican male" the

night before police found her body.                Later that day, police

interviewed    and    took   buccal   swabs     from    approximately     sixteen

homeless men in the area.

      On October 18, 2013, police interviewed T.M. a third time,

and she again stated she last saw the deceased with a "violent

Mexican male."       On October 20, 2013, T.M. called the police to

report   she   had   seen    the   "violent     Mexican     male"   and   shortly

thereafter, made an on-scene identification of defendant.

      Defendant, who speaks Spanish and attended only two years of

primary school in Guatemala, was confronted by police and removed

from a bar where he was drinking.             The police informed defendant

they wanted to speak with him, patted him down, and transported

him to the police station in the back of a police vehicle.                   There,

a   Spanish-speaking     detective     read     defendant     a   Miranda 2 form,

asking   throughout     if   he    understood    what    he   was   being     told.

Defendant nodded his head repeatedly but indicated multiple times,

"I don't understand," or "I don't know."               At one point, he stated

"No, it's ok.        If I get paid in check and I go to the bank."

Defendant was then directed to sign the form, and after doing so,

he gave a statement.



2
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                       3                                    A-4376-16T2
     The police informed defendant they were going to take his DNA

with a buccal swab.      He responded, "No, no, no exactly.           There is

no problem.   I don't know who . . . said that.                  Who because I

cannot be in the street."        The police gave him the buccal swab

consent form, written in English, with no accompanying explanation

of the form or of his right to refuse to give the sample.                     He

subsequently signed the form, and the police took a buccal swab.

The police did not enter the specimen information into the police

computer until November 17, 2013 and did not take it to the lab

until January 13, 2014.

     Six months after her initial statement, on March 18, 2014,

T.M. again spoke to the police, reasserting she last saw the

deceased with the "violent Mexican male" and identified defendant

from a photo lineup made up of photographs of people the police

had investigated up to that point.

     Defendant     was   again   brought   to     the   police    station   for

questioning   on   April   8,    2014.     Like    before,   defendant      was

confronted by the police, this time at a laundromat, informed that

the police wanted to speak with him, patted down, and transported

to the police station in the back of a police vehicle.                 Once at

the station, a detective read him his Miranda rights in Spanish.

As before, defendant demonstrated a lack of understanding of his

rights. He nodded his head throughout the explanation, but stated,

                                     4                                 A-4376-16T2
"I don't understand," or "I don't know."      Additionally, he made

comments that he either did not know any attorneys or could not

afford to pay an attorney.      Eventually, defendant signed the

Miranda form and gave a second statement.

     On June 25, 2014, the police received DNA results from swabs

taken from the deceased's body.      Defendant's DNA tested as a

positive match.   That same day, the police conducted a third

interview with defendant.   Again, a detective read him his Miranda

rights from the Spanish form, which defendant signed.     Defendant

then gave a third statement.

     After conducting Miranda hearings, the Honorable Marilyn C.

Clark, J.S.C., suppressed defendant's consent to take the buccal

swab as well as all three statements in their entirety, ruling

such evidence inadmissible for any purpose.    The judge found each

time defendant was brought to the police station, he was subjected

to an illegal detention because he was taken into custody without

probable cause and without a warrant.     The subsequent custodial

interrogation required effective Miranda warnings.     The warnings

given by the police prior to each statement were not effective

because defendant did not understand his rights and did not make

a knowing and voluntary waiver.      The judge found defendant's

limited education, his consumption of alcohol before at least one

of the statements, and the deficiencies in his understandings of

                                 5                          A-4376-16T2
the proceedings notable.      She found the police conduct "offensive

to due process," and demonstrated blatant disregard for the most

basic of constitutional safeguards.

     The judge suppressed the results of the buccal swab as the

product of an illegal detention and invalid consent because the

consent form was in English and was never translated for defendant.

He was never informed that he had the right to refuse and that the

swab would be used in a criminal investigation.

     The State thereafter moved to admit the buccal swab evidence

under the theory of inevitable discovery, and the judge conducted

further hearings.       Detective Sergeant Bordamonte (Bordamonte)

testified that had defendant not consented to give a buccal swab,

he would have eventually sought a search warrant.             He further

testified the buccal swab was not sent to the lab for DNA testing

until January 13, 2014 because they had "other investigations" and

he intended to take the swab to the lab when he had "downtime."

     During the same hearing, the judge considered defendant's

motion for admission of Bordamonte's personnel records regarding

an Internal Affairs (IA) investigation.          The records established

Bordamonte's   prior    violations       of   police   department    rules,

including   instances    of   bias   against     perceived   undocumented

immigrants and generally unprofessional conduct, including alleged

instances of dishonesty to his superiors.

                                     6                              A-4376-16T2
       In a detailed and well-reasoned oral decision, Judge Clark

denied the State's motion to admit defendant's DNA evidence under

the theory of inevitable discovery, using the standard set forth

in State v. Sugar, 
100 N.J. 214, 238 (1985).                  Further, the judge

denied the State's motion to compel defendant to give a buccal

swab   and   granted       the   defense       motion   permitting    Bordamonte's

personnel records to be used at trial.

       In declining to allow the DNA evidence under the theory of

inevitable    discovery,         Judge   Clark    stated,    "under   all   of   the

circumstances and . . . after much thought I am not convinced that

[Bordamonte]       would    have    applied       for   a   search    warrant    for

[defendant's] DNA."         The judge emphasized Bordamonte's long police

history,     his    correspondingly        low     number   of   search     warrant

applications,3 and his minimization of the actions leading to and

the results of the IA investigation.                The judge opined, assuming

Bordamonte applied for a search warrant, she "would have been very

concerned about whether the application met the standard required"

to obtain defendant's DNA.           She stated, "many important basic and



3
   Bordamonte testified that in twenty-three years as a detective,
and being involved in "100 homicides and 1,000 street crimes," he
had sought between twenty and twenty-five search warrants.
Further, he did not testify that he had ever applied for a search
warrant to obtain DNA. Moreover, though buccal swabs were taken
from approximately twenty males involved in the case besides
defendant, no search warrants were obtained.

                                           7                                A-4376-16T2
potentially fruitful investigative steps including those involving

legal processes were not taken nor apparently even considered

during this investigation.     Conversely, a number of investigatory

steps that were taken . . . [were] in blatant disregard for

constitutional safeguards."

     Next, Judge Clark denied the State's motion to compel the

buccal swab under the same inevitable discovery standard.             The

judge recognized "a person arrested for murder and/or sexual

assault must submit to a DNA sample upon arrest."             Defendant,

however, was arrested because of an invalid DNA consent and the

previously suppressed statements.        Moreover, the judge rejected

the suggestion an affidavit reporting T.M.'s identification of

defendant would have been sufficiently trustworthy to meet the

standard required to support a search warrant given her criminal

history, narcotics impairment, and inconsistent statements; were

the judge presented with such an affidavit she would have required

T.M. to appear and give testimony to assess her credibility.

     The judge found Bordamonte's personnel records admissible

pursuant   to   proper   limiting   instructions,   stating   "[i]f   this

matter goes to trial [Bordamonte's] angry and threatening remarks

about illegal immigrants and other remarks to the people in that

cited episode . . . are relevant to his credibility in this case,

particularly because [defendant] is an illegal immigrant."

                                     8                           A-4376-16T2
     We granted the State's motion for leave to appeal the judge's

order.   On appeal, the State argues:

            POINT I: THE TRIAL COURT ERRED IN DENYING THE
            STATE'S MOTION FOR BUCCAL SWAB UNDER THE
            INEVITABLE DISCOVERY DOCTRINE.

            POINT II: THE TRIAL COURT ERRED IN ALLOWING
            REFERENCE   TO   INTERNAL   AFFAIRS   RECORDS
            REGARDING THE STATE'S LEAD DETECTIVE.

                                    II.

     The State contends defendant's DNA sample would have been

inevitably discovered, notwithstanding the invalid consent, and

the judge erred in denying its motion.         We disagree.

     "Appellate courts reviewing a grant or denial of a motion to

suppress must defer to the factual findings of the trial court so

long as those findings are supported by sufficient evidence in the

record."    State v. Hubbard, 
222 N.J. 249, 262 (2015) (citations

omitted).     "In   the   typical   scenario   of   a   hearing   with   live

testimony, appellate courts defer to the trial court's factual

findings because the trial court has the 'opportunity to hear and

see the witnesses and to have the feel of the case, which a

reviewing court cannot enjoy.'"       State v. S.S., 
229 N.J. 360, 374

(2017) (quoting State v. Elders, 
192 N.J. 224, 244 (2007)).                We

disregard those findings only when a trial court's findings of

fact are clearly mistaken.     Hubbard, 
222 N.J. at 262. However, the



                                     9                              A-4376-16T2
trial court's legal interpretations will be reviewed de novo.    Id.

at 263.

     Both the United States and New Jersey Constitution protect

individuals against unreasonable searches and seizures.         U.S.

Const., amend IV; N.J. Const., art. I, ¶ 7.   "Warrantless seizures

and searches are presumptively invalid as contrary to the United

States and the New Jersey Constitutions."     State v. Pineiro, 
181 N.J. 13, 19 (2004) (citation omitted).   Where evidence is obtained

as a result of a constitutional violation, the exclusionary rule

applies based on the "fruit of the poisonous tree" doctrine. State

v. James, 
346 N.J. Super. 441, 453 (App. Div. 2002).

     In State v. Sugar (Sugar II), 
100 N.J. 214, 237 (1985), our

Supreme Court adopted the doctrine of inevitable discovery, which

instructs consideration of whether the evidence in question "would

have been obtained lawfully and properly without the misconduct,"

as an exception to the fruit of the poisonous tree doctrine.     See

Nix v. Williams, 
467 U.S. 431, 448 (1984).      The Sugar II court

held the State was

          required . . . 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 the discovery of the
          evidence; and (3) the discovery of the
          evidence through the use of such procedures

                               10                           A-4376-16T2
              would have occurred wholly independently of
              the discovery of such evidence by unlawful
              means.

              [Id. at 238.]

Subsequently, in State v. Sugar (Sugar III), 
108 N.J. 151, 157

(1987), the Court set the State's burden of proof at "clear and

convincing."

      Through    that   lens,   Judge   Clark   correctly   considered       the

relevant inquiry was not whether Bordamonte could have obtained a

search warrant, but whether he would have.         See Sugar II, 
100 N.J.

at 238.   The judge found the State did not demonstrate the police

would have sought a search warrant after evaluating the entirety

of the investigation, including the apparent lack of urgency,

dearth of search warrants for DNA swabs taken from other suspects,

and the blatant disregard for basic police procedures that should

have been utilized during defendant's interviews.                 Furthermore,

the   judge    considered     Bordamonte's   testimony,     his    history    of

obtaining search warrants, and the conduct depicted in the IA

records, and was "not convinced that [Bordamonte] would have

applied for a search warrant for [defendant's] DNA.                The most I

can say is that he certainly could have and possibly would have."

On that basis, the judge determined the State did not meet the

first element of inevitable discovery.




                                     11                                A-4376-16T2
     When a trial judge makes credibility determinations, even

without   specifically       articulating       detailed     findings       of

credibility,   we    are   not   free    to   make   our   own   credibility

determination.      State v. Locurto, 
157 N.J. 463, 472-75 (1999).

Here, it was integral to the judge's determination that she did

not find Bordamonte to be a credible witness.          We do not find her

determination to be an abuse of discretion.

     Additionally, the judge determined the State did not satisfy

the second element - whether "the pursuit of those procedures

would have inevitably resulted in the discovery of the evidence."

The judge was not satisfied any search warrant application the

police would have brought based on the evidence presented would

have met the standard required for an investigative detention

under Rule 3:5A-1, let alone the more stringent standard for a

search warrant.

     Were we to disagree with the judge's factual and credibility

determinations, we would not disturb those findings merely because

"'[we] might have reached a different conclusion were [we] the

trial tribunal' or because 'the trial court decided all evidence

or inference conflicts in favor of one side' in a close case."

Elders, 
192 N.J. at 244 (quoting State v. Johnson, 
42 N.J. 146,

162 (1964)); see S.S., 
229 N.J. at 374.



                                    12                               A-4376-16T2
     In light of the record and the judge's detailed conclusions,

we cannot say the trial judge abused her discretion in denying the

State's motion to admit the evidence as an inevitable discovery

and to compel a buccal swab.

                                         III.

     We reject the assertion that the judge's consideration of

Bordamonte's IA investigation is unduly prejudicial and lacks

relevance   or   probative      value.          We   review      the    trial   judge's

evidentiary rulings under the abuse of discretion standard.                        State

v. Erazo, 
126 N.J. 112, 131 (1991); State v. Ramseur, 
106 N.J.
 123, 265-66 (1987).

     The    State     asserts      the    admission         of    the     report     was

impermissible under several rules of evidence, including N.J.R.E.

404(b)   and   403.     At   the    outset,          we   note   that     "hearsay     is

permissible in a suppression hearing subject to N.J.R.E. 104(a)"

and the rules of evidence, except Rule 403 and rules of privilege,

do not apply.       State v. Bivins, 
226 N.J. 1, 14 (2014) (citing

State v. Watts, 
223 N.J. 503, 519 n.4 (2015)).

     Under Rule 403, "relevant evidence may be excluded if its

probative value is substantially outweighed by the risk of," among

other things, undue prejudice to the defendant.                        Here, the judge

stated clearly that the records were relevant to Bordamonte's



                                         13                                     A-4376-16T2
credibility, and the state has not asserted that the risk of

prejudice substantially outweighs the relevance.

     Moreover, we do not find any error present as a result of the

judge's consideration of these records fatal to her conclusions.

Indeed, the judge appears to have considered the IA record only

as an afterthought, after considering the police investigation and

the conduct of the officers, Bordamonte's testimony, and his

inconsequent history of utilizing search warrants, stating "[i]n

addition     to    all   of    this    I    am     significantly    disturbed         by

[Bordamonte's]       responses    .    .    .     [w]hen    questioned    about     his

personnel records."

     However,       in   the   event       this    matter    proceeds     to    trial,

Bordamonte's records may only be used for proper purposes as

provided under N.J.R.E. 404(b), or as otherwise allowed in the

rules   of        evidence.       Additionally,             appropriate    limiting

instructions must be given to the jury where necessary.                    See State

v. G.S., 
145 N.J. 460, 473-74 (1996).

     Affirmed.




                                           14                                  A-4376-16T2