STATE OF NEW JERSEY v. DERRICK D. GILLIAM
Annotate this CaseNOT 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-1354-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK D. GILLIAM,
Defendant-Appellant.
______________________
Argued November 9, 2020 – Decided January 11, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 13-08-
0837.
Christopher Wilds, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Alison Perrone, First Assistant
Deputy Public Defender, of counsel; Christopher
Wilds, on the briefs).
Dana R. Anton, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Christine A. Hoffman, Acting
Gloucester County Prosecutor, attorney; Dana R.
Anton, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Derrick D. Gilliam appeals from an October 31, 2018 judgment
of conviction that was entered after he pled guilty to second-degree reckless
vehicular homicide, N.J.S.A. 2C:11-5(a). The trial judge sentenced defendant
to a five-year prison term, subject to a parole ineligibility period under the No
Early Release Act, N.J.S.A. 2C:43-7.2, and consecutive to a federal prison
sentence defendant was already serving.
On appeal, defendant challenges the trial judge's orders denying his
motion to suppress the results of a warrantless blood draw allegedly taken
without exigent circumstances and denying his motion to suppress his statement
to police, which was allegedly obtained in contravention of Miranda,1 after he
had invoked his rights to remain silent and to counsel.
Having considered the facts from the record in light of the applicable
principles of law, we vacate defendant's conviction, reverse the denial of his
motion to suppress the blood draw results, and remand for a trial because there
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1354-18T2
2
were no exigent circumstances to support the warrantless blood draw. However,
we affirm the denial of his motion to suppress his statement because defendant
never invoked his right to remain silent or to have counsel present and his waiver
of those rights was knowing and voluntary.
I.
On April 12, 2013, after drinking at a bar in Glassboro, defendant and his
friend decided to drive to Philadelphia, Pennsylvania. At approximately
midnight, according to defendant, while driving near the college in Glassboro at
fifteen miles per hour, he struck a pedestrian outside of a house where a party
was taking place.
Defendant immediately stopped, and everyone from the party—which the
victim had evidently been attending—came outside to see what happened. At
some point, defendant's friend left the scene before police arrived. Later, the
victim died from the injuries he sustained after being hit by defendant's car.
Local police officers responded to the scene at approximately 12:30 a.m.,
which they described as being "very loud and chaotic" and located in a "high
traffic area." The police "closed off" the road until their investigation ended at
1:37 a.m. At the scene, emergency medical services (EMS) and paramedics
were assisting the victim, who was unconscious the entire time. During this
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3
time, police described defendant as "agitated and argumentative." As part of the
investigation, the police discovered an open bottle of alcohol in defendant's
vehicle, detected an odor of alcohol emitting from defendant, and heard him tell
a bystander had consumed one alcoholic drink prior to the accident.
Defendant, who was not injured, was taken to police headquarters within
twenty minutes of the polices' arrival at the scene, where they arrived at roughly
1:00 a.m. At the time, police described defendant as rambling and "fluctuating"
in mood. When an officer attempted to administer a field sobriety test,
defendant started yelling and refused the test, causing the officer to abandon the
attempt. The police did not attempt to administer an Alcotest. The officers
placed defendant under arrest for obstruction based on his lack of cooperation
and then took defendant to a hospital for a blood draw.
At the hospital, defendant continued to be uncooperative and balked at
permitting the blood draw. He stated that he wanted to make a phone call to ask
some questions, although he did not state who he wanted to call. The officers
did not permit the phone call at that time. Defendant eventually signed a form,
indicating his consent, and at 1:56 a.m. the blood draw was completed, without
force.
A-1354-18T2
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After the blood draw, defendant was taken to police headquarters where
he was processed and placed in an interview room where a video-taped
interrogation was conducted. After initially balking, defendant eventually
consented to a waiver of his Miranda rights and gave a statement to police
describing the events that led to the incident, which defendant blamed in part on
the victim.
A Gloucester County Grand Jury later returned an indictment charging
defendant with first-degree vehicular homicide, N.J.S.A. 2C:11-5(b)(3), and
fourth-degree obstruction, N.J.S.A. 2C:29-1A. Thereafter, defendant filed
motions to suppress his statement to police that he alleged was taken in violation
of his Miranda rights, and the results of the warrantless blood draw. After
conducting a hearing on October 19, 2017, the trial judge denied the motion to
suppress defendant's statement, and on November 30, 2017, the judge denied the
motion to suppress the blood draw's results.
Defendant pled guilty on September 11, 2018, to the vehicular homicide
charge, which was amended to a second-degree offense. The remaining count
of the indictment was dismissed. Although defendant pled guilty, he reserved
the right to appeal the denial of his suppression motions. The trial judge
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sentenced defendant and entered the judgment of conviction. This appeal
followed.
On appeal, defendant raises the following points of contention:
POINT I
OFFICERS VIOLATED [DEFENDANT'S] RIGHTS
BY CONDUCTING A WARRANTLESS BLOOD
DRAW BECAUSE A) OFFICERS IMPERMISSIBLY
CREATED THEIR OWN EXIGENT
CIRCUMSTANCES, B) OTHER THAN THE SELF-
CREATED EXIGENCY, THE CIRCUMSTANCES
DID NOT JUSTIFY A WARRANTLESS BLOOD
DRAW, AND C) OFFICERS HAD SUFFICIENT
TIME TO OBTAIN A WARRANT. (RAISED
BELOW).
A. OFFICERS IMPERMISSIBLY
CREATED THEIR OWN EXIGENT
CIRCUMSTANCES.
B. OTHER THAN OFFICERS' SELF-
CREATED EXIGENCY, CIRCUMSTANCES
SURROUNDING [DEFENDANT'S] ACCIDENT DID
NOT JUSTIFY A WARRANTLESS BLOOD DRAW.
1. "CHAOTIC" SCENE OF THE
ACCIDENT.
2. FLEEING PASSENGER AND
[DEFENDANT'S] UNCOOPERATIVE BEHAVIOR.
3. OFFICERS' BELIEF ABOUT
OBTAINING A WARRANT.
A-1354-18T2
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C. THE OFFICERS HAD TIME TO SECURE
A WARRANT.
POINT II
THE TRIAL COURT ERRED IN DENYING
[DEFENDANT'S] MOTION TO SUPPRESS
STATEMENTS OBTAINED IN VIOLATION OF HIS
MIRANDA RIGHTS. (RAISED BELOW).
A. LAW ENFORCEMENT FAILED TO
SCRUPULOUSLY HONOR [DEFENDANT'S]
INVOCATION OF HIS RIGHT TO REMAIN
SILENT.
B. LAW ENFORCEMENT FAILED TO
SCRUPULOUSLY HONOR [DEFENDANT'S]
INVOCATION OF HIS RIGHT TO COUNSEL
DURING HIS CUSTODIAL INTERROGATION.
C. [DEFENDANT'S] EVENTUAL WAIVER
OF HIS RIGHTS WAS NOT MADE KNOWINGLY
AND VOLUNTARILY.
In a pro se supplemental brief, defendant also argues the following:
POINT I
[DEFENDANT'S] 4TH AMEND[MENT] RIGHT
PROHIBITING UNREASONABLE SEARCHES AND
SEIZURES WAS VIOLATED WHEN THE COURT
BELOW FAILED TO PROPERLY APPLY LAW AND
FACTS TO THE CASE AT HAND, AND USED THE
LESSER SOME EVIDENCE STANDARD INSTEAD
OF SUBSTANTIAL EVIDENCE STANDARD, THUS
RESULTING IN THE DENIAL OF APPELLANTS
MOTION TO SUPPRESS, AND VIOLATING THE
U.S. CONST'S 4 & 14th AMEND[MENTS], N.J.
A-1354-18T2
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CONST'S ART I, PARA 5 & 7, THE N.J. FAIRNESS
AND RIGHTNESS DOCTRINE. [RAISED BELOW].
II.
A.
We begin our review by addressing the denial of defendant's motion to
suppress the blood draw results. In our review, we give deference to the trial
judge's findings of fact that "are supported by sufficient evidence in the record."
State v. Zalcberg, 232 N.J. 335, 344 (2018) (quoting State v. Hubbard, 222 N.J.
249, 262 (2015)). Where the facts are not sufficiently supported, or they are
"clearly mistaken, . . . [and] the interests of justice require," we will "examine
the record, make findings of fact, and apply the governing law." Ibid. (alteration
in original) (quoting Hubbard, 222 N.J. at 262-63). However, we review the
trial judge's "interpretation of the law . . . de novo." Ibid. (quoting State v.
Hathaway, 222 N.J. 453, 467 (2015)).
B.
With these guiding principles in mind, we turn to the record of the hearing
held by the trial judge as to the suppression of defendant's blood draw results.
At the hearing, Corporal Stephen E. Cavallaro and Detective Jack Manning
testified on behalf of the State. Cavallaro stated that he was dispatched to the
scene, on April 12, 2013, at 12:30 a.m. He described the location as a busy
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intersection in a college town. Cavallaro stayed at the scene but only for
approximately fifteen to twenty minutes because it was "chaotic," as "[t]here
was a lot going on with the EMS personnel, emergency apparatus, [and] a lot of
noise from the ambulances."
Cavallaro stated that defendant was "agitated at the scene" and because of
all the chaos, he did not get close enough to smell alcohol on defendant's breath.
However, he did hear defendant tell a bystander that before the incident, he only
had one drink.
Shortly before 1:00 a.m., Cavallaro decided to go back to police
headquarters. Before he left, Cavallaro arranged for one of his sergeants to drive
defendant there in a separate car. Once there, Cavallaro smelled alcohol on
defendant's breath. He described defendant's behavior as "up and down,"
"agitated," "excited," and "rambling." He also said defendant argued with other
arrestees at the station that night.
According to Cavallaro, when he attempted to conduct a field sobriety
test, defendant refused and was uncooperative. He also did not administer an
"Alcotest," which was partly due to defendant's lack of cooperation and the
severity of the accident.
A-1354-18T2
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Defendant's uncooperativeness led Cavallaro to arrest defendant for
obstruction. Once they began processing defendant, Cavallaro and the other
officers "started planning out how [they] were going to obtain a blood sample,"
which was needed due to "the nature of the injuries and [Cavallaro's] belief that
[defendant] was intoxicated." It was Cavallaro's understanding that for serious
incidents there was a need to draw blood and that the officers would first attempt
to get consent from defendant, but if defendant refused, the officers could use
"reasonable force necessary to obtain the blood" at a hospital.
While those discussions were going on, defendant sat handcuffed to a
bench. At approximately 1:36 a.m., defendant was told that he would be taken
to the hospital for a blood draw.
According to Cavallaro, a search warrant was not needed. Even if it was,
he was not aware of any procedure for obtaining a telephonic warrant, about
which he never received any training, and, in any event, the police did not "have
the resources to write a search warrant" the night of the incident, as police
headquarters was "very busy" and there were not many officers available at the
time. He and the other officers were also concerned about the passenger who
fled the scene. For those reasons, the police never applied for a search warrant.
A-1354-18T2
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Cavallaro testified that defendant had expressed that he did not want to
get his blood drawn on several occasions. He also indicated that defendant was
only provided with a "Certificate of Request to Withdraw Specimen" once at the
hospital. After looking at the form, defendant stated that he wanted to make a
phone call but did not specify who he wanted to call. Cavallaro could not recall
whether defendant wanted to speak to an attorney or someone else but confirmed
he would not allow defendant to make the call until after the blood draw.
According to Cavallaro, once defendant was informed that the officers
could use force to get his blood drawn, and he could not make a phone call,
defendant became more cooperative and signed the form, but he still told the
nurse on several occasions to stop the blood draw before eventually telling her
to come back and complete it at 1:56 a.m.
Defendant was brought back to police headquarters at 2:31 a.m. At 2:45
a.m., he was placed in a room to be interviewed. He was still not given the
opportunity to make a telephone call as he had requested at the hospital.
Manning testified that he was a patrol officer at the time of the incident
and specialized as a crash investigator. He too was dispatched to the scene at
approximately 12:40 a.m. and stated that it was chaotic.
A-1354-18T2
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In his ensuing investigation, Manning observed the placement of
defendant's vehicle, the position of the victim, and the open bottle of alcohol in
the vehicle as unusual. Besides asking defendant if he needed an ambulance,
Manning did not speak to defendant at the scene. In their brief exchange,
defendant was cooperative but Manning "note[d] an odor of alcohol on his
breath."
Manning spent an hour at the scene investigating and was notified before
returning to police headquarters that defendant refused to do a field sobriety test
and that a blood draw was to be conducted. Upon returning to headquarters,
Manning informed defendant a "blood draw was mandatory," and "that he didn't
really have a right to refuse." According to Manning, there was a specific policy
that required a blood draw for "serious crashes [and] crashes with serious
injuries." Later, when defendant initially refused to allow his blood draw at the
hospital, Manning contacted the prosecutor's office to find out "what level of
force [the officers were] authorized to use."
Manning confirmed that he was familiar with procedures for telephonic
warrants, which detectives were generally allowed to obtain. He acknowledged
that the prosecutor's office and the criminal division in general were required to
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have someone available at all hours "to assist in preparing and making search
warrant applications," as stated in an Attorney General's directive.
After the witnesses completed their testimony, the parties presented their
oral arguments to the trial judge. The focus of those arguments was whether
exigent circumstances existed warranting the blood draw.
The trial judge entered an order denying the motion on November 30,
2017, which was later supplemented by the judge's written decision filed on
January 2, 2018. At the outset, the judge gave a factual background and found
both witnesses to be credible. Considering the totality of the circumstances, the
judge held the officers were in "an emergency situation that justified the
warrantless blood draw."
In reaching this decision, the judge relied on "the chaotic scene, the fact
that there were several civilians present at the scene, the severity of the crash,
the fact that the passenger had fled the scene[,] . . . the uncooperative and
argumentative behavior of . . . [d]efendant[,] . . . the officers' testimony that
they objectively believed it was an emergency situation," and the "potential
dissipation of the alcohol." He found the matter to be distinguishable from "a
routine DWI stop," where there would not be exigent circumstances excusing
the lack of a warrant.
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C.
Both the United States Constitution and the New Jersey Constitution
guarantee freedom from unreasonable searches and seizures by the government.
U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Taking a "blood sample for the
purpose of alcohol-content analysis constitutes a search" under the Fourth
Amendment. Zalcberg, 232 N.J. at 345 (citing Schmerber v. California, 384 U.S. 757, 758 (1966)).
Generally, a warrantless search is invalid unless it falls under the exigent
circumstances exception. State v. McNeely, 569 U.S. 141, 148 (2013) (holding
that dissipation of blood alcohol levels does not give rise to a per se exigency
justifying a warrantless blood draw). In Zalcberg, the New Jersey Supreme
Court explained how to determine if exigent circumstances exist, stating:
There is no defined formula for determining whether
there are exigent circumstances, and the term may take
on different shape and form depending on the facts of a
given case. . . . Absent a precise definition, applying
the exigency doctrine demands a fact-sensitive,
objective analysis based on the totality of the
circumstances. . . . However, some factors to be
considered in determining exigency include the
urgency of the situation, the time it will take to secure
a warrant, the seriousness of the crime under
investigation, and the threat that evidence will be
destroyed or lost or that the physical well-being of
people will be endangered unless immediate action is
taken. . . . The exigent-circumstances exception is
A-1354-18T2
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frequently cited in connection with warrantless blood
draws.
[Zalcberg, 232 N.J. at 345 (internal quotation marks
and citations omitted).]
See also State v. Adkins, 221 N.J. 300, 310 (2015) (describing the same
considerations).
If a police officer "can reasonably obtain a warrant" for a blood test
"without significantly undermining the efficacy of the search, [then] the Fourth
Amendment mandates that they do so." McNeely, 569 U.S. at 152 (citing
McDonald v. United States, 335 U.S. 451, 456 (1948)). See also Zalcberg, 232 N.J. at 347. If the "warrant process will not significantly increase the delay
before the blood test is conducted because an officer can take steps to secure a
warrant while the suspect is being transported to a medical facility by another
officer . . . there would be no plausible justification for an exception to the
warrant requirement." McNeely, 569 U.S. at 153-54.
In Zalcberg, the Court concluded that the circumstances in that case
presented sufficient exigent circumstances to support a warrantless blood draw.
Zalcberg, 232 N.J. at 351. There, police responded to a serious motor vehicle
accident in 2011 that required assistance from "emergency medical and fire
personnel." Id. at 338. Because the accident took place on a busy highway near
A-1354-18T2
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a "heavily trafficked" area, "several officers were deployed to block off access
to the road and to direct traffic." Id. at 339.
When they arrived, emergency personnel determined that they could not
access the vehicle being driven by the defendant, which was necessary to render
aid to defendant and her passengers. Ibid. Equipment had to be brought in to
remove a portion of the vehicle's roof so as to remove its occupants, who were
then air lifted to a hospital. One of defendant's passengers later died from her
injuries. Ibid.
As a result of observations made by emergency personnel at the scene,
police suspected that the defendant had been under the influence of alcohol
while driving. "Because defendant was incapacitated as a result of her injuries
and therefore unable to undergo field sobriety tests, the officers decided that it
would be prudent to obtain a sample of defendant's blood," which the responding
officers understood was a "common practice" in serious accidents. Ibid.
Although "[w]arrants were then available telephonically . . . none of the police
officers present believed that a search warrant was required to obtain a blood
sample and none of them had been trained in obtaining one." Ibid.
Instead of applying for a warrant, an officer went to the hospital where the
defendant had been taken, waited there for "[a]bout an hour," and then had a
A-1354-18T2
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nurse perform the blood draw. Id. at 340. Later, a grand jury indicted the
defendant and charged her with second-degree vehicular homicide and other
charges. Ibid.
In reversing our opinion that affirmed the trial judge's granting of the
defendant's motion to suppress the blood draw results, the Court concluded the
"circumstances established . . . that there existed objective exigency justifying
the officers' warrantless taking of defendant's blood sample." Id. at 351. The
Court described the exigent circumstances it found as follows:
Defendant's accident was a serious one, requiring the
presence of several emergency-services units, the
extrication of injured parties from a vehicle with the
"Jaws of Life," and the need to transport victims via
helicopter to a local hospital. The accident occurred on
a typically busy state highway on the night of a nearby
event that drew unusually high traffic. In addition to
investigating the role played by alcohol in the crash, the
officers present had to direct car flow, examine the
wreckage, interview parties and witnesses, and
document their actions, among other essential tasks.
We conclude that any delay in seeking to obtain
defendant's blood sample after the establishment of
probable cause is attributed to the complexity of the
situation and the reasonable allocation of limited police
resources—not a lack of emergent circumstances, as
argued by defendant. We further find that the hour for
which the officer was forced to wait at the hospital
before obtaining the blood sample does not undermine
the State's claim of exigency.
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[Ibid.]
The Court also "afford[ed] 'substantial weight' to the 'potential dissipation of'
the alcohol in defendant's blood." Id. at 352 (quoting Adkins, 221 N.J. at 303).
The Court rejected the defendant's argument that there was no exigency
because the police were able to secure a warrant telephonically. In doing so, the
Court relied upon the fact "that the officers' lack of awareness of any formal
procedure through which they could obtain a telephonic warrant, coupled with
their pre-McNeely belief that they did not need such a warrant, suggests that
there was no reasonable availability of a warrant." Id. at 352. See also Adkins,
221 N.J. at 313, 317 (giving McNeely pipeline retroactivity and acknowledging
that before McNeely, New Jersey "case law played a leading role in dissuading
police from believing that they needed to seek, or explaining why they did not
seek, a warrant before obtaining an involuntary blood draw from a suspected
drunk driver").
As the Zalcberg Court explained, "[p]rior to McNeely, [which was
decided on April 17, 2013,] New Jersey, like many states, 'provided de facto, if
not de jure, support for law enforcement to believe that alcohol dissipation in
and of itself supported a finding of exigency for a warrantless search of bodily
fluids in suspected driving-under-the-influence cases.'" Id. at 348 (quoting
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Adkins, 221 N.J. at 303). After McNeely, the concern about dissipation was
viewed as one factor that "courts must evaluate [when considering] the totality
of the circumstances in assessing exigency," ibid. (quoting Adkins, 221 N.J. at
312, 317), but that factor "may be given substantial weight." Id. at 349
(emphasis omitted) (quoting Adkins, 221 N.J. at 303).
As the Adkins Court explained, under these circumstances, "when police
may have believed that they did not have to evaluate whether a warrant could be
obtained, based on prior guidance from our Court that did not dwell on such an
obligation, we direct reviewing courts to focus on the objective exigency of the
circumstances that the officer faced in the situation." Adkins, 221 N.J. at 317
(emphasis added). In State v. Jones, 441 N.J. Super. 317, 321 (App. Div. 2015),
another case involving a pre-McNeely arrest of a defendant suspected of driving
while intoxicated (DWI), we followed the Adkins Court's directions and held
that the warrantless blood draw taken in that case was supported by the police
officer's reasonable belief "that he was confronted with an emergency, in which
the delay necessary to obtain a warrant, under the circumstances, threatened 'the
destruction of evidence.'" Id. at 321 (quoting Schmerber, 384 U.S. at 770).
We described the facts in Jones as follows:
The exigency of the circumstances did not depend
solely upon the fact that alcohol dissipates in the blood.
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Defendant drove her vehicle into a car stopped at a
traffic light, propelling it into a third car in front of it at
approximately 7:00 p.m. at a busy intersection. . . .
Eleven police officers, at least two [EMS] vehicles and
four EMS personnel, two fire trucks and an unknown
number of firefighters responded to the accident scene.
Defendant was in her vehicle unconscious and
bleeding. . . . It took approximately one-half hour to
extricate her from her heavily damaged car. . . . Both
defendant and an occupant from one of the other
vehicles, who was injured in the accident, were taken
to the hospital for treatment. . . . Defendant did not
regain consciousness until she was at the hospital. . . .
The investigation at the accident scene took several
hours. . . . The damage caused to a nearby building
struck by defendant after hitting the vehicle raised a
concern that the building might collapse. . . . The blood
sample from defendant was drawn by a nurse
approximately one hour and fifteen minutes after police
responded to the accident scene and, upon testing, had
a blood alcohol content of 0.345.
[Ibid. (citations omitted).]
The facts to which we applied Adkins' "objective exigency" test were
substantially different than the facts in the case now before us. We initially
observe that like the events in Zalcberg and Jones, defendant's arrest occurred
before McNeely was decided, albeit just five days earlier. Under these
circumstances, Zalcberg prevents us from faulting the police in this matter for
believing that warrants were not required for a blood draw to the extent they had
a legitimate concern about the dissipation of defendant's blood alcohol level due
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to the passage of time created by exigent circumstances. As the United States
Supreme Court explained in its pre-McNeely opinion in Schmerber, a
warrantless search was permitted if a delay could have "threatened 'the
destruction of evidence,'" as defendant's blood alcohol level would start to
diminish as time was spent investigating the incident. 384 U.S. at 770-71
(stating that a warrantless blood draw was permissible because the officer
"might reasonably have believed that he was confronted with an emergency").
Contrary to the trial judge's conclusion in this case, we discern no
emergency that existed when the police made the decision to drive defendant to
the hospital to secure the warrantless blood draw. The facts surrounding the
scene of the accident that the trial judge relied upon did not bear upon the
determination of whether exigent circumstances existed once defendant was
removed from the scene within minutes of Cavallaro's arrival. After defendant's
removal from the accident scene, exigent circumstances pertinent to the decision
to obtain the blood draw had to be determined from the circumstances that
existed at the police station. It is evident from the record that those
circumstances did not give rise to a finding that an emergency existed or that
police had a legitimate concern about dissipation such that police could not
apply for a warrant.
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If, as the officers testified, it was a policy in serious accident cases where
alcohol use was suspected to have blood drawn from the driver without a
warrant, there was no reason for Cavallaro to bring defendant to headquarters—
rather than the hospital. Cavallaro testified that he was aware defendant had had
at least one drink and that an open bottle of alcohol had been found in the car.
If dissipation was a concern, there was no reason to first attempt to administer
field sobriety tests at the police station or to wait for the arrival of Manning
before taking defendant for a blood draw. Moreover, under these circumstances
it would not have been necessary to return defendant to the police station before
calling a prosecutor as the police eventually did, albeit not for help in getting a
warrant but to determine the amount of force they could use to obtain the blood
draw. Despite the policy about serious accidents being known to the officers
and Cavallaro's belief a warrant was unnecessary, there was no rush to obtain
the blood draw.
We are unpersuaded by the State's reliance upon defendant's
uncooperative or argumentative behavior as creating exigent circumstances that
gave rise to concern about dissipation, especially since they waited to take him
to the hospital for some time after it became apparent that defendant was
misbehaving.
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Unlike in Zalcberg, police did not have to divert manpower from
managing the accident scene to attend to defendant. The record indicates there
was adequate personnel to manage the scene in the absence of Cavallaro, who
was attending to defendant at headquarters. Before Manning's return to police
headquarters, Cavallaro sat with defendant at the headquarters without any
compunction to bring him to the hospital for a blood draw.
Also, unlike Zalcberg, defendant was not injured; he was only transported
to the hospital for the blood draw. Moreover, there was no evidence explaining
how defendant's passenger fleeing the scene impacted the need to quickly obtain
defendant's blood in order to avoid dissipation. Here, unlike Zalcberg, officers
leisurely removed defendant from the "chaotic" scene, brought him to police
headquarters, attempted to secure his cooperation with field sobriety tests,
charged him with obstruction, and only then—after he continued to be
confrontational—took him to the hospital for the blood draw.
Here, to the extent the circumstances surrounding defendant's blood draw
necessitated urgency, that necessity existed solely due to the police officers' self-
created delay. This police-created exigency did not excuse the officers'
obligation to obtain a warrant before drawing defendant's blood. See State v.
Walker, 213 N.J. 281, 295 (2013) (stating that "in order to justify the officers'
A-1354-18T2
23
warrantless home arrest here, the State must establish: (1) the existence of
exigent circumstances, and (2) that those exigent circumstances were not police-
created"); State v. Hutchins, 116 N.J. 457, 471 (1989) ("Where agents create the
exigency themselves, warrantless activity is per se unreasonable." (quoting
United States v. Webster, 750 F.2d 307, 327-28 (5th Cir. 1984))).
Under these circumstances, we are compelled to reverse the denial of
defendant's motion to suppress the blood draw results, vacate his guilty plea,
and remand for trial.
III.
We turn our attention to the trial judge's denial of defendant's motion to
suppress his statement to police. Here, we find no error and affirm.
A.
In our review of a trial judge's decision on a motion to suppress a
statement, we generally defer to the judge's factual findings when they are
supported by credible evidence in the record. State v. Tillery, 238 N.J. 293, 314
(2019). Deference to those factual findings is appropriate "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)). Deference is
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required even if the trial court's factual findings "are based solely on its review
of a video recording." Id. at 386. However, we review de novo the trial court's
legal conclusions that flow from established facts. Tillery, 238 N.J. at 314.
B.
At the hearing on defendant's motion to suppress his statements, Detective
Michael Powell testified on behalf of the State and defendant's videotaped
statement was played for the judge. The facts derived from the hearing are
summarized as follows.
During the interrogation, Powell stated that defendant was arrested for
obstruction, and that at the time there were no other charges against him. He
stated that he did not "even know what [the other officers would be] charging
[him] with." Defendant was given a Miranda form and was asked to read,
acknowledge, and initial each right he was giving up.
After reading the form, defendant asked if he "need[ed] an attorney or
something," to which Powell responded, "If you want an attorney, you're more
than welcome to have one." In response, defendant stated that he had "never
been arrested a day in [his] life. [He did not] know how this work[ed]. [He did
not] want to jam [him]self up." Powell clarified that defendant had "every right
to have an attorney. If [he] want[ed] one, [Powell would] stop right now."
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Powell also stated that he just wanted to know what happened that night, and
defendant stated that he understood. Powell reiterated to defendant that "[i]f
[defendant did not] want to talk to [him] and [defendant] want[ed] an attorney,
that's why [he was] reading [defendant his] rights." Defendant stated "[t]hat's
fine" and that he could "get an attorney when [he left]" the interview and
continued to read from the Miranda form.
After reading and acknowledging that he understood his rights, defendant
stated that he was willing to speak to Powell and signed and initialed the form.
Before questioning continued, Powell asked defendant whether he was sure he
wished to continue speaking to Powell and told him that he did not have to
answer any questions to which he did not want to respond.
In response to Powell's questions, defendant described the events of the
evening leading to the accident, including that before the incident he had one
alcoholic beverage and that the victim had run in front of his car. He also
implied that his arrest was "race motivated," as he was a black man who hit a
white man. He further stated that he had "never been through this process" and
had previously asked to make a phone call.
Continuing with his description of what occurred, defendant stated that he
believed the victim and his friends were playing a joke when the victim decided
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to run in front of defendant's car. During his statement, defendant noted that he
was not refusing a field sobriety test, he first just wanted to know why the
officers wanted to administer one. Powell explained that the test was not
administered at the scene because "a lot of people [were] around," which
defendant stated he understood.
At the conclusion of the testimony and the playing of the videotape, the
trial judge considered the parties' arguments as to whether defendant waived his
Miranda rights or invoked them during his interrogation. After considering the
evidence and arguments, the trial judge denied defendant's motion.
In his oral decision, the judge stated that defendant did not have a right to
an attorney at the time of the blood draw, therefore, any attempt to contact an
attorney during the blood draw did not create a Fifth Amendment issue. At the
time of the interrogation, defendant was "clearly informed on his rights," which
he voluntarily and knowingly waived. The judge stated that there was "nothing
to indicate . . . any force . . . was being used by Detective Powell" in attempt to
have defendant waive his rights.
C.
Defendant contends that his statements during the custodial interrogation
should be suppressed, as the officers failed to honor defendant's invocation of
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27
his right to remain silent by asking to make a phone call when he was at the
hospital, and of his right to counsel during the interrogation when he stated he
did not want to "jam [him]self up," even if his invocation was ambiguous. He
additionally argues that Powell led him "to believe that he could avoid further
criminal charges only by making a statement as to the accident," also warranting
the suppression of his statement. We disagree.
"The right against self-incrimination is guaranteed by the Fifth
Amendment to the United States Constitution and this state's common law, now
embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."
S.S., 229 N.J. at 381 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)).
Miranda rights exist to combat the inherent and compelling pressures present in
custodial interrogation, "which work to undermine the individual's will to resist
and to compel him to speak where he would not otherwise do so freely." 384 U.S. at 467.
A suspect may waive Miranda rights, so long as the waiver is made
knowingly, intelligently, and voluntarily. Miranda, 384 U.S. at 444; State v.
A.M., 237 N.J. 384, 397 (2019) ("[T]he prosecution [must] 'prove beyond a
reasonable doubt that the suspect's waiver [of rights] was knowing, intelligent
and voluntary.'" (quoting State v. Presha, 163 N.J. 304, 313 (2000))).
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A court evaluates whether the State has satisfied its burden by considering
the "totality of the circumstances." A.M., 237 N.J. at 398. Under the totality-
of-the-circumstances analysis, a court considers factors such as the defendant's
"age, education and intelligence, advice as to constitutional rights, length of
detention, whether the questioning was repeated and prolonged in nature and
whether physical punishment or mental exhaustion was involved." Ibid.
(quoting State v. Miller, 76 N.J. 392, 402 (1978)).
Even if the officer reads a defendant his or her Miranda rights, the waiver
of those rights is invalid if the defendant did not waive them knowingly,
intelligently, and voluntarily. Fare v. Michael C., 442 U.S. 707, 724 (1979).
See also Moran v. Burbine, 475 U.S. 412, 421 (1986) (requiring the prosecution
to show a defendant had "a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it").
Even after waiving Miranda rights, if during an interrogation a defendant
makes "a request, 'however ambiguous,' to terminate questioning[, remain
silent,] or to have counsel present[, the request] must be diligently honored."
State v. Hartley, 103 N.J. 252, 263 (1986) (quoting State v. Kennedy, 97 N.J.
278, 288 (1984)). "[A]ny words or conduct that reasonably appear to be
inconsistent with defendant's willingness to discuss his case with the police are
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29
tantamount to an invocation" of the right to remain silent and a desire to cease
questioning. S.S., 229 N.J. at 382, 384 (quoting State v. Bey, 112 N.J. 123, 136
1988) (holding a defendant invoked his right by stating: "No, that's all I got to
say. That's it"); State v. Johnson, 120 N.J. 263, 281 (1990) ("[A] suspect who
ha[d] 'nothing else to say,' . . . asserted [his] right to remain silent." (citations
omitted) (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987))).
"If, however, 'following an equivocal indication of the desire to remain
silent,' the police are reasonably unsure whether the [defendant] was asserting
that right, they 'may ask questions designed to clarify whether the [defendant]
intended to invoke his right to remain silent.'" Johnson, 120 N.J. at 283 (quoting
Christopher, 824 F.2d at 841-42). The police are entitled to resume questioning
if, in response to clarifying questions, the defendant indicates he is not invoking
his right; in which case, any confession obtained thereafter is admissible. See
ibid. ("[I]f the suspect makes clear that he is not invoking his Miranda rights . . .
substantive questioning [may] be resumed." (quoting State v. Wright, 97 N.J.
113, 120 n.4 (1984))).
Applying these guiding principles, we observe at the outset that a blood
draw "is non-testimonial in nature" and is "not covered by the privilege against
self-incrimination," State v. Stever, 107 N.J. 543, 558 (1987), in the same
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30
manner that a routine request, attendant to an arrest or custody, that a suspect
submit to a blood-alcohol test is not interrogation within the meaning of
Miranda. Id. at 553. Here, at the time of defendant's blood draw, there was no
interrogation, and therefore, the privileges against self-incrimination did not
apply.
Once the interrogation began at the police station, statements by defendant
created some confusion about whether he understood the rights he was
relinquishing and whether he was invoking his right to counsel. However,
Powell appropriately clarified whether defendant wanted to speak to an attorney
when he stated, "If you want an attorney, you are more than welcome to have
one"; "if you want one, we'll stop right now"; and "[i]f [defendant did not] want
to talk and . . . want[ed] an attorney, that's why [Powell was] reading [defendant
his] rights." In response to Powell's invitations for defendant to end the
conversation so that he could secure counsel, defendant clearly stated that he
would obtain an attorney after the interrogation was over. Further, the evidence
established that, as found by the trial judge, defendant read, initialed, signed and
understood the Miranda form, waiving his Miranda rights. Defendant
unequivocally understood and waived his Miranda rights.
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Additionally, at the time of the interrogation, Powell correctly informed
defendant that he was arrested for obstruction and that he was unsure of any
other charges that might later be brought against him. Powell, based on what he
knew at the time, informed defendant of the seriousness of the victim's injuries.
At the time of the interrogation, the victim had not died and the blood draw
results were not available. Based on the totality of the circumstances, defendant
was fully aware of the situation when he decided to waive his Miranda rights.
Under these circumstances, we conclude the judge properly ruled that
defendant's statements could be admitted into evidence.
Affirmed in part; reversed in part and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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