Date: 05-24-2016

Case Style: STATE OF NEW JERSEY VS. DAREN B. THOMAS

Case Number: A-5405-13T3

Judge: George S. Leone

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Claudia Joy Demitro, Deputy Attorney General, John J. Hoffman, Acting Attorney General

Defendant's Attorney: S. Emile Lisboa, IV and Brian J. Neary of Law Offices of Brian J. Neary with Jane M. Personette, on the brief).

Description: 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
A-5405-13T3 3
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
A-5405-13T3 4
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
A-5405-13T3 5
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
A-5405-13T3 6
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.
A-5405-13T3 7
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.
[State v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192 N.J. 224, 24344 (2007)).]
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)).
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
A-5405-13T3 8
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,
A-5405-13T3 9
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.
A-5405-13T3 10
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,
A-5405-13T3 11
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,
A-5405-13T3 12
where we found exigent circumstances for a warrantless blood
draw in a pipeline case.1 In Jones, the 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 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).]
1 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.
A-5405-13T3 13
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
A-5405-13T3 14
(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,
A-5405-13T3 15
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
A-5405-13T3 16
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 latenight 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.
A-5405-13T3 17
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
A-5405-13T3 18
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
A-5405-13T3 19
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.

Outcome: 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.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

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