STATE OF NEW JERSEY v. DERRICK D. GILLIAM

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        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).
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                                        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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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.




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                                        4
      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.


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                                     6
                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
                                       7
            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.




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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.




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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.




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                                      11
      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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                                       13
                                           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

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                                      14
            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


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                                      15
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


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                                        16
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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                                       17
            [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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                                      18
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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                                       19
            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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                                         20
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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                                      21
      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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                                       22
      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'


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                                        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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                                      24
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."


                                                                           A-1354-18T2
                                       25
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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                                      26
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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                                      28
      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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                                        31
     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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