State v. Timothy Adkins (073803)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

State v. Timothy Adkins (A-91-13) (073803)

Argued December 3, 2014 -- Decided May 4, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the application of the United States Supreme Court’s decision in
Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw,
for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.

In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car
accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests
conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at
approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his
Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was
administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC
test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a
warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and
possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree
assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.

On April 17, 2013, the United States Supreme Court issued its opinion in McNeely, which held that the
natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth
Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant
filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the
court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent
circumstances before securing a sample of defendant’s blood without a warrant.

The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel
explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States
Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of
blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the
sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a
dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The
panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review,
but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith
reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.

The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that
were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The
matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency
in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential
dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the
circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the
constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384
U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a
warrant is typically required for the taking of blood, the officer might have reasonably believed that he was
confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of
evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable
manner. Id. at 770-71. (pp. 13-14)

2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of
alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme
Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally
metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme
Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-
circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a
person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws
involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing
exigency, one factor of which is the human body’s natural dissipation of alcohol. (pp. 15-16)

3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which
occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal
retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the
particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.”
Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it
will “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 412 (quoting Griffith v.
Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been
established in a United States Supreme Court decision to a case pending review in New Jersey at the time the
decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case
calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal
retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has
pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws
of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal
amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies
retroactively to cases that were in the pipeline when it was decided. (pp. 16-18)

4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s
blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s
requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first
established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the
exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led
law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created
exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly
pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of
alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States
Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court
adheres to that test without any superimposed exception. (pp. 19-23)

5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that
exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the
circumstances to the events involved in the arrest. 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 the Court that did not dwell on such an obligation, reviewing courts
should focus on the objective exigency of the circumstances that the officer faced in the situation. (pp. 23-24)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.

2
 SUPREME COURT OF NEW JERSEY
A-91 September Term 2013
073803

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY ADKINS,

Defendant-Appellant.

Argued December 3, 2014 – Decided May 4, 2015

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 433 N.J. Super. 479 (App. Div.
2013).

Richard F. Klineburger, III, argued the
cause for appellant (Klineburger and Nussey,
attorneys; Mr. Klineburger, Carolyn G.
Labin, and Rebecca L. Kolsky, on the
briefs).

Ronald Susswein, Assistant Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).

Jeffrey Evan Gold argued the cause for
amicus curiae New Jersey State Bar
Association (Paris P. Eliades, President,
attorney; Mr. Eliades, of counsel; Mr. Gold
and Thomas M. Cannavo, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

We granted certification in this matter to address the

application of the United States Supreme Court’s decision in

Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed.

1
2d 696 (2013), to a case involving a blood draw, for purposes of

determining blood alcohol content (BAC), that took place before

the McNeely decision was issued.

Police arrested defendant, Timothy Adkins, on suspicion of

drunk driving after his single-vehicle car crash caused injuries

to his passengers and he failed field sobriety tests. The

police obtained defendant’s BAC test results from a sample,

drawn by hospital personnel at police direction, without the

police first having secured a warrant or defendant’s prior

written consent.

Following issuance of the United States Supreme Court’s

decision in McNeely, supra, which held that “in drunk-driving

investigations, the natural dissipation of alcohol in the

bloodstream does not constitute an exigency in every case

sufficient to justify conducting a blood test without a

warrant,” ___ U.S. at ___, 133 S. Ct. at 1568, 185 L. Ed. 2d at

715, defendant sought suppression of his BAC results. After a

hearing in which only defendant testified, the court applied

McNeely and excluded defendant’s blood test results. On appeal,

the Appellate Division reversed, declining to apply the

exclusionary rule when officers relied on pre-McNeely New Jersey

case law that had permitted warrantless blood draws based on the

exigency inherent in the human body’s natural dissipation of

alcohol.

2
 Consistent with our decision in State v. Wessells, 209 N.J.

395 (2012), we conclude that McNeely’s pronouncement on the

Fourth Amendment’s requirements must apply retroactively to

cases that were in the pipeline when McNeely was issued. We are

constrained to adhere to the McNeely Court’s totality-of-the-

circumstances approach notwithstanding that our case law, like

that of many sister states, had 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.

Because McNeely must apply retroactively to all cases,

federal or state, pending on direct review at the time of that

decision, we must reverse the Appellate Division judgment.

However, we remand to allow the State and defendant the

opportunity to re-present their respective positions on exigency

in a hearing on defendant’s motion to suppress the admissibility

of the blood test results. We further hold that, in that

hearing, potential dissipation of the evidence may be given

substantial weight as a factor to be considered in the totality

of the circumstances. In reexamining this matter, in which law

enforcement may have relied on prior guidance from our Court

that did not identify an obligation to evaluate whether a

warrant could be obtained, we direct the reviewing court to

3
focus on the objective exigency of the circumstances faced by

the officers.

I.

In the early morning hours of December 16, 2010, defendant

was involved in a single-car accident that resulted in injuries

to defendant’s two passengers. Based on his performance on a

series of field sobriety tests conducted at the scene of the

accident, defendant was arrested on suspicion of Driving While

Intoxicated (DWI) at approximately 2:27 a.m. Defendant was

transported to the West Deptford Police Department and was

advised of his Miranda1 rights; he invoked his right to counsel.

We understand from this record that although Alcotest equipment

was present, no breathalyzer test was administered at

headquarters. The record is not clear as to why that is so.

What we do know is that police personnel conveyed him to

Underwood Memorial Hospital so that a blood sample could be

obtained. At police request, hospital staff drew defendant’s

blood at 4:16 a.m. The record does not reveal any objection by

defendant to the invasive procedure. The requesting police

officer, a hospital nurse, and defendant each signed the

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

4
Certificate of Request to Withdraw a Specimen, but defendant’s

signature was affixed two minutes after the blood was drawn.2

Defendant was issued summonses for DWI, N.J.S.A. 39:4-50;

careless driving, N.J.S.A. 39:4-97; and possession of an open

container in a motor vehicle, N.J.S.A. 39:4-51a. On August 3,

2011, a grand jury also charged defendant with fourth-degree

assault by auto, N.J.S.A. 2C:12-1(c)(2), for recklessly

operating a motor vehicle while under the influence of alcohol

and causing bodily injury.

On April 17, 2013, the United States Supreme Court issued

its opinion in McNeely, supra, which held that the natural

metabolism of alcohol in an individual’s bloodstream does not

constitute a per se exigency under a Fourth Amendment search and

seizure analysis. ___ U.S. at ___, 133 S. Ct. at 1568, 185 L.

Ed. 2d at 715. In light of McNeely, on April 22, 2013,

defendant filed the pre-trial motion to suppress the blood test

results that is at the center of this appeal.3 Following a

hearing at which only defendant testified, the court granted

defendant’s motion, finding that the police did not demonstrate

2 We note that no argument has been advanced before this Court
that defendant consented to the blood draw.

3 In addition, defendant alleged a violation of his speedy trial
rights. That motion was denied and is not before this Court.
Also, we note that a previously filed motion to suppress the
blood test results based on discovery issues had been denied.

5
exigent circumstances before securing a sample of defendant’s

blood without a warrant.

The State appealed, and the Appellate Division reversed.

State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013). The

panel explained that, prior to McNeely, New Jersey courts,

including this Court, had cited the United States Supreme

Court’s prior decision in Schmerber v. California, 384 U.S. 757,

86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), as support for the

warrantless taking of blood samples from suspected intoxicated

drivers, so long as the search was supported by probable cause

and the sample was obtained in a medically reasonable manner.

Id. at 482-83. The panel reasoned therefore that McNeely had

worked a dramatic shift in this State’s Fourth Amendment

jurisprudence and created a new rule of criminal procedure. Id.

at 484. The Appellate Division acknowledged that McNeely

ordinarily would be given “pipeline retroactivity” and would be

applied retroactively to all cases, federal or state, pending on

direct review. Ibid. However, citing Davis v. United States,

___ U.S. ___, ___, 131 S. Ct. 2419, 2434, 180 L. Ed. 2d 285, 302

(2011), the panel noted that federal law generally does not

apply the exclusionary rule when police conduct a search in good

faith reliance on previously binding precedent. Id. at 484-85.

Concluding that defendant’s blood sample would not be suppressed

under federal law, the panel determined that

6
 the real issue here is whether, given the
federal retroactivity requirement, we should,
as the State argues, apply an approach
analogous to that set forth in Davis, or
whether, as defendant argues, the result here
is dictated by State v. Novembrino, 105 N.J.
95, 157-59 (1987), which rejected a “good
faith” exception to the application of the
exclusionary rule.

[Id. at 488.]

Ultimately, the panel held that the exclusionary rule should not

be applied in this matter. Id. at 492-93. In its reasoning,

the panel relied on State v. Harris, 211 N.J. 566 (2012), as

permitting exceptions to the exclusionary rule in limited

circumstances. Id. at 490-91. The panel emphasized that, as in

Harris, the exclusionary rule’s application would not serve as a

deterrent in this case because the police relied upon valid

precedent when conducting the search. Id. at 491.

Defendant filed a petition for certification, which was

granted by this Court. 217 N.J. 588 (2014). We also granted

amicus curiae status to the New Jersey State Bar Association

(NJSBA).

II.

A.

Defendant argues that the Appellate Division misconstrued

New Jersey law when it found that McNeely dramatically changed

this State’s Fourth Amendment jurisprudence. According to

defendant, neither federal nor New Jersey law recognized a per

7
se exigency exception for warrantless blood draws of drunk

driving suspects pre-McNeely; thus, the totality-of-the-

circumstances test always has been the appropriate standard.

Nevertheless, citing Wessells, supra, 209 N.J. at 411-12,

defendant adds that federal retroactivity principles require

application of McNeely to defendant’s case.

Importantly, on the issue of McNeely’s retroactive

application, defendant and the State agree.

Consistent with his view of the prior state of federal and

New Jersey law governing warrantless blood draws on the basis of

alcohol dissipation alone, defendant argues that the officers

were not following precedent when they procured his blood.

Therefore, defendant contends that the Appellate Division erred

in declining to apply the exclusionary rule in this setting. He

asserts that Davis, supra, ___ U.S. ___, 131 S. Ct. 2419, 180 L.

Ed. 2d 285, is inapplicable, drawing support for that argument

from the Supreme Court’s post-McNeely remand in Brooks v.

Minnesota, ___ U.S. ___, 133 S. Ct. 1996, 185 L. Ed. 2d 863

(2013). That case involved a conviction based on a pre-McNeely

warrantless blood test of a drunk driving suspect. Defendant

points out (1) that the Supreme Court’s remand signaled its

intent that McNeely be applied retroactively and (2) that the

Court remanded without any mention that Davis applied.

8
 Finally, defendant asserts that the Appellate Division’s

decision is inconsistent with Novembrino, supra, 105 N.J. 95, in

which this Court declined to recognize a good faith exception to

the exclusionary rule. Defendant argues that applying the

exclusionary rule here furthers the rule’s purpose by protecting

an individual’s Fourth Amendment rights and preserving judicial

integrity through the exclusion of illegally obtained evidence.

Defendant distinguishes Harris, supra, 211 N.J. 566, noting that

Harris did not involve a warrantless search, and emphasizes this

Court’s statement in that case that it was not retreating from

Novembrino’s rejection of a good faith exception to the

exclusionary rule.

B.

The State concedes that McNeely should be given pipeline

retroactive application. The State’s arguments focus instead on

why it believes the exclusionary rule should not be applied to

suppress defendant’s blood sample.

The State relies on the principles established by the

United States Supreme Court in Davis, supra, which held that

“when the police conduct a search in objectively reasonable

reliance on binding appellate precedent, the exclusionary rule

does not apply.” ___ U.S. at ___, 131 S. Ct. at 2434, 180 L.

Ed. 2d at 302. The State submits that the outcome produced by

Davis on prior prosecutions is consistent with results reached

9
under a New Jersey retroactivity analysis when there is a change

in the law. The State requests that this Court adopt an

analogue to the Davis exclusionary-rule remedy, asserting that

there is no practical difference between exclusion of evidence

based on a retroactivity analysis premised on a change in law

and exclusion of evidence based on an exception to the

exclusionary rule.

The State further argues that although in Novembrino,

supra, 105 N.J. at 157-58, our Court specifically rejected the

good faith exception recognized in United States v. Leon, 468

U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), where the

evidence sought to be suppressed was obtained by a police

officer operating under the authority of a search warrant issued

by a judge without a sufficient basis for probable cause, the

Court has not rejected the good faith exception in all

circumstances. The State highlights Harris as demonstrating

this Court’s recognition that rigid application of the

exclusionary rule is neither constitutionally mandated nor sound

judicial policy in all circumstances.

The State adds that suppressing defendant’s blood samples

in this case will not further any of the purposes for the

exclusionary rule. Citing State v. Ravotto, 169 N.J. 227 (2001)

and State v. Dyal, 97 N.J. 229 (1984), the State argues that

although New Jersey courts have never explicitly used the term

10
“exigency per se” to describe their interpretation of the

Schmerber standard, it was universally understood that whenever

police had probable cause to believe that a driver was

intoxicated, they were authorized to obtain a blood test without

a warrant. Thus, deterrence of police misconduct is not present

here.

In sum, the State emphasizes that with McNeely there has

been a shift in New Jersey Fourth Amendment jurisprudence such

that a Davis good faith exception to the exclusionary rule’s

application is warranted in these circumstances.

C.

Amicus NJSBA agrees with defendant that McNeely did not

drastically change New Jersey’s Fourth Amendment jurisprudence

and that, therefore, no retroactivity or good faith analysis is

required. That said, NJSBA agrees with all other parties that,

if this Court finds that McNeely established a new rule of law,

federal retroactivity principles mandate that it be applied

retroactively to all cases in the pipeline, which includes this

case. Even under New Jersey retroactivity law, NJSBA asserts

McNeely would be applied to this case, noting that the purpose

of McNeely was to re-affirm the totality-of-the-circumstances-

based holding in Schmerber, and that “some reliance” by law

enforcement on a different and more indulgent view of the law in

New Jersey governing the exigency analysis when alcohol

11
dissipation is at risk does not preclude retroactive

application. Here the NJSBA contends that the State has not

demonstrated that retroactive application would be burdensome.

NJSBA further asserts that no good faith exception to the

exclusionary rule exists in New Jersey and that, were this Court

to adopt Davis, we would essentially reverse the holding in

Novembrino. NJSBA argues that the exclusionary rule serves dual

purposes, one of which is to vindicate the Fourth Amendment

right to be free from illegal searches, and to adopt Davis would

undermine that purpose.

III.

The United States Constitution and the New Jersey State

Constitution both guarantee the right to be free from

unreasonable searches and seizures. U.S. Const. amend. IV; N.J.

Const. art. I, ¶ 7. As the United States Supreme Court has

recognized, “a ‘compelled intrusio[n] into the body for blood to

be analyzed for alcohol content’ must be deemed a Fourth

Amendment search.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S.

602, 616, 109 S. Ct. 1402, 1412, 103 L. Ed. 2d 639, 659 (1989)

(alteration in original) (quoting Schmerber, supra, 384 U.S. at

768, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918). “Because [this

Court’s] constitutional jurisprudence generally favors warrants

based on probable cause, all warrantless searches or seizures

12
are presumptively unreasonable.” State v. Johnson, 193 N.J.

528, 552 (2008) (internal quotation marks omitted).

Warrantless searches are “prohibited unless they fall

within a recognized exception to the warrant requirement.”

State v. Pena-Flores, 198 N.J. 6, 18 (2009). One exception to

that requirement is the presence of exigent circumstances.

Johnson, supra, 193 N.J. at 552. In assessing those

circumstances, 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.” Id. at 553 (emphasis added). Traditionally, no one

factor is dispositive and exigency must be assessed on a case-

by-case basis under a totality-of-the-circumstances standard.

See State v. Deluca, 168 N.J. 626, 632-33 (2001).

In the context of the exigent-circumstances exception, the

United States Supreme Court addressed the constitutionality of a

warrantless blood draw from a suspected drunk driver in its 1966

decision in Schmerber, supra, 384 U.S. 757, 86 S. Ct. 1826, 16

L. Ed. 2d 908. In Schmerber, the defendant was transported to

the hospital for the treatment of injuries sustained in an

automobile accident and was subsequently arrested on suspicion

of drunk driving. Id. at 758, 86 S. Ct. at 1829, 16 L. Ed. 2d

13
at 912. Without procuring a warrant, police directed hospital

officials to draw a sample of the defendant’s blood; that sample

was used to determine the defendant’s BAC level and, ultimately,

to convict him of driving an automobile under the influence of

alcohol. Id. at 758-59, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912-

13. In finding the warrantless blood draw constitutionally

permissible, the Court concluded that although a warrant is

typically required for the taking of blood,

[t]he officer in the present case . . . 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[.] We are told that the percentage
of alcohol in the blood begins to diminish
shortly after drinking stops, as the body
functions to eliminate it from the system.
Particularly in a case such as this, where
time had to be taken to bring the accused to
a hospital and to investigate the scene of the
accident, there was no time to seek out a
magistrate and secure a warrant. Given these
special facts, we conclude that the attempt to
secure evidence of blood-alcohol content in
this case was an appropriate incident to
petitioner’s arrest.

[Id. at 770-71, 86 S. Ct. at 1835-36, 16 L.
Ed. 2d at 919-20 (citation omitted) (internal
quotation marks omitted).]

The Schmerber Court added that the defendant’s blood was drawn

by a reasonable method and in a reasonable manner. Id. at 771,

86 S. Ct. at 1836, 16 L. Ed. 2d at 920.

14
 Following Schmerber, courts were not in universal agreement

on whether the decision created a rule that the dissipation of

alcohol constituted a per se exigency justifying a warrantless

search. Compare State v. Shriner, 751 N.W.2d 538 (Minn. 2008)

(per se rule), cert. denied, 555 U.S. 1137, 129 S. Ct. 1001, 173

L. Ed. 2d 292 (2009), State v. Machuca, 227 P.3d 729 (Or. 2010)

(per se rule), and State v. Bohling, 494 N.W.2d 399 (Wis. 1993)

(per se rule), cert. denied, 510 U.S. 836, 114 S. Ct. 112, 126

L. Ed. 2d 78 (1993), with State v. Johnson, 744 N.W.2d 340 (Iowa

2008) (no per se rule), and State v. Rodriguez, 156 P.3d 771

(Utah 2007) (no per se rule). To resolve the split in authority

over the application of Schmerber, the Supreme Court granted the

State of Missouri’s petition for certiorari in McNeely, supra,

___ U.S. at ___, 133 S. Ct. at 1558, 185 L. Ed. 2d at 703. In

that case, the State of Missouri argued that “the fact that

alcohol is naturally metabolized by the human body creates an

exigent circumstance in every case.” Id. at ___, 133 S. Ct. at

1567, 185 L. Ed. 2d at 713-14. On appeal, Missouri did not rely

on any other factor in support of its claim that exigency for a

warrantless draw of blood had been established. Ibid.

In McNeely, the Court stated that Schmerber never created a

per se rule but, instead, had incorporated a totality-of-the-

circumstances test and had applied that test when assessing the

facts presented in Schmerber. Id. at ___, 133 S. Ct. at 1558-

15
60, 185 L. Ed. 2d at 704-06. The McNeely Court held that that

same totality-of-the-circumstances test remains applicable

whenever a court must assess for exigency in the circumstances

of a warrantless search of a person suspected of driving under

the influence, stating plainly that,

while the natural dissipation of alcohol in
the blood may support a finding of exigency in
a specific case, as it did in Schmerber, it
does not do so categorically. Whether a
warrantless blood test of a drunk-driving
suspect is reasonable must be determined case
by case based on the totality of the
circumstances.

[Id. at ___, 133 S. Ct. at 1563, 185 L. Ed. 2d
at 709 (emphasis added).]

Thus, the Supreme Court put to rest any ambiguity that existed

following Schmerber: dissipation of alcohol from a person’s

bloodstream is not the beginning and end of the analysis for

exigency in all warrantless blood draws involving suspected

drunk drivers. Rather, courts must evaluate the totality of the

circumstances in assessing exigency, one factor of which is the

human body’s natural dissipation of alcohol.

The present question before this Court is McNeely’s

application to the warrantless drawing of defendant’s blood,

which occurred prior to McNeely’s issuance.

IV.

In Wessells, supra, we recently addressed “both the meaning

of and the retroactive effect to be given to [a] decision of the

16
United States Supreme Court.” 209 N.J. at 397. In reviewing

the question of retroactivity, we noted that “federal

retroactivity turns on whether a new rule of law has been

announced, coupled with an analysis of the status of the

particular matter, that is, whether it is not yet final, is

pending on direct appeal, or is being collaterally reviewed.”

Id. at 411. Our holding in Wessells recognized that if a new

rule has been established “for the conduct of criminal

prosecutions” it will “be applied retroactively to all cases,

state or federal, pending on direct review or not yet final,

with no exception for cases in which the new rule constitutes a

‘clear break’ with the past.” Id. at 412 (quoting Griffith v.

Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d

649, 661 (1987)). Accordingly, we applied in Wessells a new

rule of law, concerning invocation of the right to counsel and

the procedure for a suspect’s continued interrogation, that had

been established in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct.

1213, 175 L. Ed. 2d 1045 (2010), to a case pending review in New

Jersey at the time the decision was handed down. Id. at 413.

As the Appellate Division found, and defendant and the

State acknowledge, this case calls for a similar result under

federal retroactivity law. The decision in McNeely may have

been couched in terms that clarified Schmerber’s intent –-

namely, that Schmerber envisioned a totality-of-the-

17
circumstances test would be applied in the review of warrantless

blood draws of suspected DWI drivers and that the natural

dissipation of the blood evidence would not establish per se

exigency -- but the McNeely Court nevertheless recognized that

there was sufficient cause to grant certiorari to resolve an

unsettled area of law, noting the split of authority around the

country. McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1558,

185 L. Ed. 2d at 703. In that respect, the decision represents

new law settling an area of criminal practice. Under federal

retroactivity law, the decision deserves pipeline retroactive

application. The United States Supreme Court has pronounced the

standard to be applied under the Fourth Amendment to warrantless

searches involving blood draws of suspected DWI drivers and,

under Supremacy Clause principles, we are bound to follow it as

the minimal amount of constitutional protection to be provided.

Therefore, in accord with the practice followed in

Wessells, supra, 209 N.J. 395, we hold that the Supreme Court’s

decision in McNeely applies retroactively to cases that were in

the pipeline when it was decided.

That said, the parties differ on whether the exclusionary

rule should have any applicability in suppressing defendant’s

blood test results when the police merely followed an asserted,

commonly held understanding of Schmerber’s requirements in this

State. Indeed, as defendant notes, following McNeely, the

18
Supreme Court granted a writ of certiorari in Brooks, supra, ___

U.S. at ___, 133 S. Ct. at 1996, 185 L. Ed. 2d at 863-64, a case

involving a warrantless blood test of a drunk driving suspect,

and the Court summarily vacated and remanded the decision of the

Minnesota Court of Appeals. Defendant cites Brooks as support

for his view on the intended pipeline retroactivity of McNeely.

V.

Our Court is among those that have declined to recognize

the exception to the exclusionary rule that was first

established in Leon, supra, 468 U.S. 897, 104 S. Ct. 3405, 82 L.

Ed. 2d 677.

In Novembrino, supra, we rejected a good faith exception to

the exclusionary rule, relying on Article I, Paragraph 7, of the

New Jersey Constitution. 105 N.J. at 158-59. In not following

the path recognized by Leon, our Court took the view that the

good faith exception would, over time, “tend to undermine the

motivation of law-enforcement officers to comply with the

constitutional requirement of probable cause.” Id. at 152. The

Novembrino Court concluded that suppressing evidence seized

pursuant to invalid warrants would safeguard the integrity of

the process by which warrants are sought and issued. Id. at 154

(“Our view that the good faith exception will ultimately reduce

respect for and compliance with the probable-cause standard that

we have steadfastly enforced persuades us that there is strong

19
state interest that would be disserved by adopting the Leon

rule.”).

Our State has consistently rejected a good faith exception

to the exclusionary rule. Post-Novembrino, our Court’s

adherence to its holding has remained steadfast and is not

undermined by our recent conclusion in Harris.4 In Harris,

supra, we determined that the exclusionary rule was ill-suited

to the specific circumstances of evidence secured pursuant to a

warrant issued based on a “reasonable cause” standard utilized

in the Prevention of Domestic Violence Act where the illegal-on-

sight nature of the seized evidence was immediately apparent.

211 N.J. at 580, 587, 590 (noting that police did not engage in

misconduct, did not err in execution of warrant, or disregard

warrant’s parameters). Importantly, we cautioned that the

determination “should not be understood . . . as retreating

from” the Court’s “earlier rejection of the good faith

exception” in Novembrino. Ibid.

Although the Appellate Division has applied a good faith

approach to alterations in case law when engaging in a

4 To the extent that the parties identify pre-Novembrino case law
in which the Court relied, in part, on the good faith of
officers following the law in declining to exclude evidence, we
observe that each of those earlier cases dealt with evidence
procured in connection with a statute later declared to be
unconstitutional. See, e.g., State v. Zito, 54 N.J. 206, 210
(1969) (citing State v. Gerardo, 53 N.J. 261 (1969)).

20
retroactivity analysis under New Jersey law, see, e.g., State v.

Skidmore, 253 N.J. Super. 227, 232-34 (App. Div. 1992)

(declining to exclude evidence found in search of defendant’s

garbage, notwithstanding that search’s procedure did not comply

with subsequent decision in State v. Hempele, 120 N.J. 182

(1990)), this Court has never before embraced such an expansive

approach to the exclusionary rule. Cf. State v. Broom-Smith,

406 N.J. Super. 228, 238 n.4 (App. Div. 2009) (distinguishing

Novembrino by focusing on its emphasis on safeguarding probable-

cause standard, stating “[u]nlike Novembrino, this aspect of the

case does not implicate a lack of probable cause for issuance of

the warrant and does not implicate the same policy concerns

underlying the Court’s rejection of the good faith doctrine”),5

aff’d, 201 N.J. 229 (2010).

In this matter we deal specifically with police conduct in

reliance on case law in New Jersey that led law enforcement to

the reasonable conclusion that the natural dissipation of

alcohol from the human body created exigency sufficient to

dispense with the need to seek a warrant. Although our

decisions never expressly pronounced an understanding of

5 The panel also relied on Rule 3:5-7(g), which provides that no
search conducted pursuant to a search warrant containing
“technical insufficiencies or irregularities” shall be deemed
unlawful. Broom-Smith, supra, 406 N.J. Super. at 238 (citing
Novembrino, supra, 105 N.J. at 130 n.15).

21
Schmerber that per se permitted warrantless blood draws in all

cases on the basis of alcohol dissipation alone, case law

contains language that provides a basis for such a belief. See

Ravotto, supra, 169 N.J. 227; Dyal, supra, 97 N.J. 229.

In Ravotto, supra, while focused on the reasonableness of

the force used by the police in procuring a blood sample, the

Court noted that “consistent with Schmerber and our analogous

case law, the dissipating nature of the alcohol content in

defendant’s blood presented an exigency that required prompt

action by the police.” 169 N.J. at 250. In Dyal, supra, this

Court addressed the application of the patient-physician

privilege to the admission of the results of a BAC blood test.

97 N.J. at 231. In that factual context, this Court noted that

“the encounter between a patrolman and a drunken driver often

arises in the context of an emergency,” that “[o]ne crucial

consideration is that the body eliminates alcohol at a rapid

rate,” and that “police, while coping with an emergency, should

not be obliged to obtain a search warrant before seeking an

involuntary blood test of a suspected drunken driver.” Id. at

239-40 (referencing Schmerber generally throughout). The Court

added the more pointed statement, untethered to the specific

facts therein presented, that “[a] drunken driver arrested by

police with probable cause to believe he is intoxicated has no

federal constitutional right to prevent the involuntary taking

22
of a blood sample.” Id. at 238.6 The Supreme Court has now

clarified the appropriate test to be applied to warrantless

blood draws, and we will adhere to that test without any

superimposed exception. That said, we accept that our 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. With that in mind, we return to the

touchstone of the Fourth Amendment -- reasonableness. State v.

Bruzzese, 94 N.J. 210, 217 (1983).

In holding that we shall retroactively enforce the Supreme

Court’s declaration that the totality-of-the-circumstances

examination applies to all blood draws from suspected drunk

drivers, we hold further that law enforcement should be

permitted on remand in these pipeline cases to present to the

court their basis for believing that exigency was present in the

facts surrounding the evidence’s potential dissipation and

6 We note that there has not been uniformity among the Appellate
Division panels in their interpretation of this Court’s
jurisprudence. Compare State v. Woomer, 196 N.J. Super. 583,
586 (App. Div. 1984) (quoting Dyal, supra, 97 N.J. at 238 for
proposition that drunken driver “has no federal constitutional
right to prevent the involuntary taking of a blood sample”),
with Jiosi v. Twp. of Nutley, 332 N.J. Super. 169, 179 (App.
Div. 2000) (noting that Schmerber “did not provide a carte
blanch exception to the warrant requirement whenever there is
probable cause to believe a suspect is under the influence of
alcohol or drugs”).

23
police response under the circumstances to the events involved

in the arrest. Further, 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.

VI.

The judgment of the Appellate Division is reversed and the

matter is remanded to the trial court for further proceedings

consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion.

24
 SUPREME COURT OF NEW JERSEY

NO. A-91 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY ADKINS,

Defendant-Appellant.

DECIDED May 4, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7