Opinion
DOCKET NO. A-5405-13T3
05-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAREN B. THOMAS, a/k/a DAREN BASHIR THOMAS, a/k/a MARYLAND BETHEA, a/k/a THOMAS DAREN, a/k/a JOHN DOE, a/k/a RAHIM B. ROBINSON, a/k/a TYRONE ROSEBOURGH, a/k/a DARREN THOMAS, a/k/a DARREN R. THOMAS, a/k/a TARIQ E. SMITH, a/k/a DERRICK JOHNSON, a/k/a DARRIN THOMAS, a/k/a DARYL JOHNSON, a/k/a RAHIM ROBI, Defendant-Appellant.
S. Emile Lisboa, IV, argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel and on the brief; Jane M. Personette, on the brief). Claudia Joy Demitro, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Demitro, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-07-0619. S. Emile Lisboa, IV, argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel and on the brief; Jane M. Personette, on the brief). Claudia Joy Demitro, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Demitro, of counsel and on the brief). PER CURIAM
Defendant Daren B. Thomas appeals from his June 18, 2014 judgment of conviction. He challenges the denial of suppression of blood tests taken by hospital personnel after he caused a severe accident while driving under the influence. We affirm.
I.
The following facts are taken from the testimony at the suppression hearing. At about 11:40 p.m. on June 10, 2012, defendant was driving his Toyota at a high speed on U.S. Routes 1 and 9 in Elizabeth when he rear-ended an SUV, which then collided with two other vehicles. The Toyota and the SUV spun around, and defendant's heavily-damaged Toyota ended up facing traffic in the middle of the southbound three lanes of the highway. Defendant suffered at least a dislocated hip and several facial lacerations. His fiancée and passenger, Rebecca Singleton, suffered severe facial lacerations, was bleeding, and did not have a pulse. The police had to temporarily shut down Routes 1 and 9 in both directions.
Approximately fifteen emergency medical technicians (EMTs) and six police officers responded to the scene. The EMTs assessed the injuries to the vehicles' occupants while the police officers stopped traffic on both sides of the highway and engaged in crowd control because onlookers began gravitating to the scene.
Due to the severity of the accident, both defendant and Singleton were pinned in the vehicle and had to be extricated. Indeed, the fire department had to cut off the passenger door to get Singleton out of the vehicle. The EMTs had to perform a "rapid extraction," because it was dark and it was unknown if any flammable fluids were leaking underneath the vehicle. As a result, the EMTs first removed defendant from the vehicle and placed him on a backboard while Singleton was being cut out.
While removing defendant, EMTs Axal Ortiz and Mike Diaz smelled the odor of marijuana emanating from the vehicle and noticed a green, leafy substance all over defendant's lap. Ortiz shouted to his supervisor that both he and Diaz smelled marijuana. Diaz asked defendant if he had been "smoking and drinking," and defendant responded, "yes, yes." Ortiz then asked defendant whether he had been smoking "a little bit of weed?" Defendant responded, "yes."
Defendant was then placed in an ambulance and transported to the University of Medicine and Dentistry, which was less than ten minutes away. Ortiz and Diaz accompanied defendant to the hospital. Upon arriving at the hospital, defendant became combative and started trying to get off the backboard. He began ripping the straps off the backboard, yelling he wanted to get off the stretcher, and demanding to know where Singleton was. Ortiz and Diaz then left defendant in the care of the emergency room staff and left the hospital.
While leaving the hospital, Ortiz and Diaz spoke with Officer Paul Tillotson. Tillotson was ordered by Patrol Sergeant Robert Brennan to go to the hospital with a "DUI kit" to determine if defendant was driving under the influence. Brennan gave this order because he had learned from another officer on the scene that there was a "strong odor" of marijuana emanating from defendant, and that he had admitted to drinking.
When Officer Tillotson arrived at the hospital, he asked Registered Nurse Kelly Semple to perform a blood draw on defendant. Semple testified that, regardless of whether the police had asked her, she would have drawn defendant's blood because of his injuries and because it is standard hospital procedure for blood to be drawn from a patient involved in a severe car accident so that proper medical treatment can be administered.
Four minutes after defendant arrived at the hospital, Semple drew a total of six vials of blood. Four of the vials were for the hospital lab to determine defendant's electrolyte and blood counts, determine his blood type in case he needed a transfusion, and to "check and see how [his] bleeding times were." Semple handed the remaining two vials to Officer Tillotson. Neither Officer Tillotson nor any other police officer assisted Semple with the blood draw, even though defendant continued to be agitated and combative.
While Semple was performing the blood draw, defendant described his pain as being a "10 out of 10." After drawing the six vials of blood, Semple administered a standard dose of Fentanyl, a pain medication. Semple also injected defendant with a muscle relaxer and a paralytic so she could intubate him and administer anesthesia. Defendant required anesthesia for medical purposes, because if he had a broken neck from the accident he could become paralyzed if he continued to thrash around.
The police sent the two vials of defendant's blood to the New Jersey State Police Laboratory for analysis. The tests revealed no alcohol in defendant's blood; however, his blood tested positive for marijuana and phencyclidine (PCP).
On June 10, 2012, defendant was charged with possession of under fifty grams of marijuana, N.J.S.A. 2C:35-10(a)(4); driving while intoxicated, N.J.S.A. 39:4-50; and three other motor vehicle offenses. Two days after the accident, Singleton succumbed to her injuries and died at the hospital. On July 10, 2013, defendant was charged with second-degree vehicular homicide, N.J.S.A. 2C:11-5.
Defendant filed a motion to suppress the results of the blood analysis, arguing that his blood had been unlawfully seized. The trial court denied suppression in a written opinion on February 10, 2014. Thereafter, defendant pleaded guilty to second-degree vehicular homicide and driving while intoxicated. Defendant was sentenced to eight years in prison with 85% parole ineligibility. Defendant now appeals, arguing:
POINT I — THE FORCIBLE SEIZURE OF BLOOD SAMPLES FROM MR. THOMAS WITHOUT HIS CONSENT OR A SEARCH WARRANT VIOLATED THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND, ACCORDINGLY, SUCH EVIDENCE MUST BE SUPPRESSED.
POINT II — A PRE-McNEELY ANALYSIS COMPELS THAT THE EVIDENCE BE SUPPRESSED.
POINT III — CONSIDERATIONS OTHER THAN McNEELY COMPEL EXCLUSION OF THE BLOOD EVIDENCE.
II.
Defendant first argues the trial court erred in failing to suppress the results of his warrantless blood draw pursuant to Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). We must hew to our standard of review.
We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" Deference to those findings is particularly appropriate when 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.'" Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record.Moreover, we owe no deference to a trial court's "'interpretation of the law' because '[l]egal issues are reviewed de novo.'" Ibid. (quoting State v. Vargas, 213 N.J. 301, 327 (2013)).
[State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).]
III.
Defendant argues that Officer Tillotson was required to obtain a search warrant before asking Semple to perform a blood draw for the purposes of determining whether defendant was driving under the influence. The Fourth Amendment to the United States Constitution, and the New Jersey Constitution, protect against "unreasonable searches and seizures," and generally require a warrant issued upon probable cause. U.S. Const. amend IV; N.J. Const. art. I, ¶ 7. "Warrantless searches are 'prohibited unless they fall within a recognized exception to the warrant requirement.'" State v. Adkins, 221 N.J. 300, 310 (2015) [hereinafter Adkins II] (citation omitted). "One exception to that requirement is the presence of exigent circumstances." Ibid.
In assessing whether exigent circumstances exist to justify a warrantless search, the relevant factors 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." State v. Johnson, 193 N.J. 528, 553 (2008). "Traditionally, no one factor is dispositive and exigency must be assessed on a case-by-case basis under a totality-of-the-circumstances standard." Adkins II, supra, 221 N.J. at 310.
"In the context of the exigent-circumstances exception, the United States Supreme Court [first] addressed the constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in" Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Adkins II, supra, 221 N.J. at 310. In Schmerber, supra, the defendant was involved in an accident, suffered injuries, and was transported to a hospital for treatment. 384 U.S. at 758, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912. Without getting a warrant, police told hospital officials to draw a sample of the defendant's blood; that sample was used to determine the defendant's blood alcohol content (BAC). Id. at 758-59, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912-13.
The Court in Schmerber held that the "compulsory administration of a blood test" is a search under the Fourth Amendment. Id. at 767, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918. However, the Court further held that a warrantless seizure of the defendant's blood was reasonable because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the 'destruction of evidence.'" Id. at 770, 86 S. Ct. at 1835, 16 L. Ed. 2d 919-20 (citation omitted).
Some courts believed Schmerber "created a rule that the dissipation of alcohol constituted a per se exigency justifying a warrantless search." Adkins II, supra, 221 N.J. at 311. "To resolve the split in authority," the Court decided McNeely. Ibid. The Court reaffirmed Schmerber as "fit[ting] comfortably within our case law applying the exigent circumstances exception," but held a different result applied in a simple DWI traffic stop. McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1560, 185 L. Ed. 2d at 706.
In McNeely, the defendant's vehicle was stopped for traffic violations. Id. at ___, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702. After he performed poorly in field sobriety tests and declined a breathalyzer, the officer transported him to a hospital for blood testing, without securing a warrant. Id. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d at 702.
The Court in McNeely held that the natural metabolization of alcohol does not create a per se exigency for all drunk-driving cases, and that "exigency in this context must be determined case by case based on the totality of the circumstances." Id. at ___, 133 S. Ct. at 1556, 185 L. Ed. 2d at 702. "[I]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." Id. at ___, 86 S. Ct. at 1561, 185 L. Ed. 2d at 707.
Here, the trial court declined to apply McNeely because we had held that it was not retroactive. See State v. Adkins, 433 N.J. Super. 479, 493 (App. Div.) [hereinafter Adkins I], rev'd and remanded, 221 N.J. 300 (2015). However, in Adkins II, our Supreme Court found that McNeely's "totality of the circumstances analysis would be given pipeline retroactivity to all blood draws from suspected drunk drivers." State v. Jones, 441 N.J. Super. 317, 320 (App. Div. 2015) [hereinafter "Jones II"] (citing Adkins II, supra, 221 N.J. at 317). As this case was pending in the trial court, and thus "in the pipeline," when McNeely was decided on April 13, 2013, we apply the United States Supreme Court's totality-of-the-circumstances test.
In Adkins II, our Supreme Court instructed that, in reviewing cases in the pipeline,
the exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases 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 II, supra, 221 N.J. at 317.]
"Under the totality of the circumstances analysis," Jones II, supra, 441 N.J. Super. at 321, there was sufficient exigency in the instant case to justify a warrantless blood draw on defendant approximately one hour after causing a severe accident that resulted in life-threatening injuries. We find the facts here analogous to the facts of our recent decision in Jones, where we found exigent circumstances for a warrantless blood draw in a pipeline case. In Jones, the defendant,
In State v. Jones, 437 N.J. Super. 68 (App. Div. 2014) [hereinafter Jones I], decided before the decision in Adkins II, we declined to determine whether McNeely would apply retroactively because "the application of McNeely to the facts of [the] case [did] not require the suppression of the results of defendant's blood test." Id. at 77-78. Our Supreme Court later summarily remanded the case to us for reconsideration in light of Adkins II, and we reached the same result in Jones II, supra, 441 N.J. Super. at 320-21. --------
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 Emergency Medical Service (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.
[Ibid. (citation omitted).]
Similar to the defendant in Jones, here defendant drove his Toyota into an SUV, propelling it into at least two other vehicles on a busy highway. The approximately fifteen EMTs, several firetrucks, and six police officers responding to the scene had to tend to the injured, transport them to hospitals, deal with the damaged vehicles, temporarily close and later reopen U.S. Route 1 and 9, and control a gathering crowd. Singleton and defendant were pinned in the Toyota, both had facial lacerations, defendant had a dislocated hip, and Singleton had no detectable pulse. Both had to be rapidly extricated from the vehicle due to the risk of flammable liquids leaking and causing a fire or explosion. Defendant had to be removed from the vehicle and transported to the hospital. Singleton had to be cut out of the vehicle and transported to the hospital. The occupants of the SUV also had to be taken to the hospital. The blood sample from defendant was drawn approximately one hour after the accident occurred.
Thus, the circumstances here were comparably exigent to those in Jones. As in Jones, "[t]he 'special facts' that supported a warrantless blood sample in Schmerber and were absent in McNeely, were present in this case: an accident, injuries requiring hospitalization," and at least an hour-long police investigation. Jones II, supra, 441 N.J. Super. at 320 (quoting Jones I, supra, 437 N.J. Super. at 81). "'Therefore, it was not necessary for the officers to shoulder the further delay entailed in securing a warrant that would have threatened the destruction of the blood alcohol evidence.'" Ibid. (quoting Jones I, supra, 437 N.J. Super. at 81). "Viewing the circumstances here objectively, we are satisfied the officer 'might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence[.]'" Id. at 321 (quoting Schmerber, supra, 384 U.S. at 770, 86 S. Ct. at 1835, 16 L. Ed. 2d at 919-20).
Here, the observations of the EMTs and admissions of defendant regarding drug use made it at least as necessary to draw blood promptly. "As the United States Supreme Court has noted, traces of illegal drugs are continuously eliminated from the bloodstream. The delay in obtaining a warrant could result in the disappearance of the evidence of drug use." Rawlings v. Police Dep't of Jersey City, 133 N.J. 182, 191 (1993) (citing Skinner v. Railway Labor Execs'. Ass'n, 489 U.S. 602, 623, 109 S. Ct. 1402, 1416, 103 L. Ed. 2d 639, 663 (1989)). Moreover, the medical need for defendant to receive a pain killer, paralytic, muscle relaxer, and anesthesia at the hospital further necessitated the drawing of defendant's blood promptly, before it was tainted by the presence of those drugs. Thus, there was sufficient exigency to justify warrantless blood draw.
Defendant argues that so many police officers responded to the scene that one of them could have easily requested a telephonic warrant to seize defendant's blood. The defendant in Jones made a similar argument, and the motion judge suppressed the blood draw evidence because the State had not established that "'this three-car accident with one serious injury and one minor injury, was such that all the attention of all the police officers the entire time they were all there was required to attend to duties at the scene such that it would have been impossible for any one of them to have had the time to call for a search warrant telephonically.'" Jones I, supra, 437 N.J. Super. at 74 (citation omitted) (emphasis deleted). We reversed, finding "that the motion judge applied a more stringent test than that required by McNeely." Id. at 79.
We stressed in Jones I that McNeely reaffirmed that a warrantless blood draw was appropriate in Schmerber because "time spent investigating an accident and transporting an injured suspect to the hospital causes delay; [and] obtaining a warrant will result in further delay." Id. at 79. "Recognizing that some delay is inevitable, even in a telephone warrant situation, the [McNeely] Court stated, 'We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process.'" Id. at 79 n.6 (quoting McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1562, 185 L. Ed. 2d at 709).
Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest.
[McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1562, 185 L. Ed. 2d at 709 (citation omitted).]
To show that a telephonic warrant should have been procured, defendant cites State v. Pena-Flores, 198 N.J. 6 (2009), overruled in part, State v. Witt, 223 N.J. 409 (2015). However, in Witt, our Supreme Court recounted the findings of the Supreme Court Special Committee on Telephonic and Electronic Search Warrants, which stated that "'[t]he average request for an automobile warrant took approximately 59 minutes,'" and that the State Police reported that it took "on average, 1.5 to 2 hours." Witt, supra, 223 N.J. at 436 (citation omitted). The exigencies here made it reasonable to avoid such further delay.
Accordingly, we reject defendant's attempt to analogize this case to the routine DWI arrest in McNeely. McNeely was "a routine motor vehicle stop," Jones II, supra, 441 N.J. Super. at 321, and "'a routine DWI case' in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency." McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1557, 185 L. Ed. 2d at 703 (citation omitted). "There was no accident; no injured defendant who needed to be extricated from [his] heavily damaged car; no other injured person who had to be transported to the hospital; no concentration of disabled cars and emergency vehicles [on] a busy [highway]; and no police investigation beyond the DWI arrest." Jones I, supra, 437 N.J. Super. at 78. Those factors were all present here, as well as at least one person with life-threatening injuries in the middle of a major highway. Given these exigencies, it was not unreasonable for the police to ask the hospital to draw defendant's blood without awaiting a warrant. Id. at 78-79.
IV.
Defendant also argues that, even if McNeely does not require suppression, the evidence from the blood draw should have been suppressed under State v. Ravotto, 169 N.J. 227 (2001). We agree with the trial court that Ravotto does not require suppression here. There, a defendant was driving drunk and overturned his vehicle. Id. at 231-32. The defendant did not suffer any injuries; however, the police took him to the hospital and sought a blood draw, despite his offering to take a breathalyzer. Id. at 232-33. The "[d]efendant was terrified of needles and voiced his strong objection to the procedures used on him. He shouted and flailed as the nurse drew his blood. Several persons, including the police, and mechanical restraints were needed to hold [the] defendant down." Id. at 241.
Our Supreme Court analyzed the facts in Ravotto under the standards employed in excessive force cases. Id. at 235-36. The Court held that "the force used by the police to extract [the] defendant's blood was unreasonable under the totality of the circumstances." Id. at 241. The Court further held that the defendant's "manifest fear of needles, [and] his violent reaction to the bodily intrusion engendered by the search," outweighed "the State's interest in prosecuting [the] defendant on a quasi-criminal charge," particularly given defendant's willingness to take a breathalyzer test. Id. at 242-43.
Here, the facts are clearly distinguishable from Ravotto. Most importantly, as the trial court found, there was no evidence that any "law enforcement officer assisted in the taking of blood from defendant at the hospital." Thus, the issue in Ravotto of whether "the police used unreasonable force in obtaining defendant's blood sample" is not presented here. Id. at 231. According to Nurse Semple, defendant was restrained in accordance with medical standards and it was already necessary to draw his blood in order to administer medical treatment. Moreover, unlike in Ravotto, defendant here did not vocalize a fear of needles or of having his blood drawn. Instead, defendant was combative and agitated because he wanted to determine where Singleton was located. Further, the crime being investigated here was a possible vehicular homicide, as Singleton did not have a pulse when the police arrived, the EMTs observed a green leafy substance on defendant's lap, and defendant admitted to smoking marijuana and to "drinking." Finally, defendant did not offer to take a breathalyzer or any other test to determine whether he had been intoxicated with drugs or alcohol.
As we find the blood draw reasonable under a totality of the circumstances, we need not remand this case as authorized by Adkins II, supra, 221 N.J. at 317, or reach whether the State could have obtained the results from the hospital pursuant to the independent source doctrine. Defendant's remaining arguments that consent or a court order were required are without sufficient merit to warrant further discussion in a written opinion. Rule 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION