STATE OF NEW JERSEY VS. MICHAEL CASSELLA(12-01-0075, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3218-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL CASSELLA,

Defendant-Appellant.
_________________________________

Argued September 28, 2017 – Decided October 16, 2017

Before Judges Simonelli, Haas and Gooden
Brown.

On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
12-01-0075.

Donald M. Lomurro argued the cause for
appellant (Lomurro, Munson, Comer, Brown &
Schottland, LLC, attorneys; Mr. Lomurro, of
counsel; Christina Vassiliou Harvey, on the
briefs).

Paula Jordao, Assistant Prosecutor, argued the
cause for respondent (Fredric M. Knapp, Morris
County Prosecutor, attorney; Ms. Jordao, on
the brief).

PER CURIAM
 This matter returns to us following remand proceedings

ordered by the Supreme Court. State v. Cassella (Casella II), 223

N.J. 161 (2015). Defendant now appeals from the March 17, 2016

Law Division order denying his motion to suppress the test results

from a blood draw taken by hospital personnel without his consent

or a search warrant after he caused a fatal car accident which

resulted in the death of a police officer. We affirm.

I.

By way of background, a grand jury indicted defendant for

first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and

second-degree vehicular homicide, N.J.S.A. 2C:11-5(a). Defendant

was also charged with several traffic offenses, including driving

while intoxicated (DWI), N.J.S.A. 39:4-50. After the trial judge

denied his motion to suppress the blood test results, defendant

pled guilty to first-degree aggravated manslaughter and DWI, and

the court sentenced defendant to twenty years in prison, subject

to the 85% parole ineligibility provisions of the No Early Release

Act, N.J.S.A. 2C:43-7.2, and suspended defendant's driver's

license for seven months following his release from prison.

Six weeks after the judge sentenced defendant, the United

States Supreme Court issued its decision in Missouri v. McNeely,

569 U.S. 141, 165, 133 S. Ct. 1552, 1568, 185 L. Ed. 2d 696, 715

(2013), which held that "in drunk-driving investigations, the

2 A-3218-15T2
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." One week later,

defendant filed his notice of appeal, primarily arguing that

McNeely should be applied retroactively. Relying upon our decision

in State v. Adkins (Adkins I), 433 N.J. Super. 479, 486 (App. Div.

2013), rev'd and remanded, 221 N.J. 300 (2015), we held that

McNeely should not be applied retroactively to suppress blood

tests taken without a warrant and, therefore, we affirmed

defendant's conviction. State v. Cassella (Cassella I), No. A-

3908-12 (App. Div. Mar. 11, 2014) (slip op. at 5-6).

Defendant filed a petition for certification. While it was

pending, our Supreme Court issued its decision in State v. Adkins

(Adkins II), 221 N.J. 300, 317 (2015), which held that McNeely

would be given pipeline retroactivity to all blood draws from

suspected drunk drivers. Thereafter, the Court granted

defendant's petition and summarily remanded the matter to the Law

Division "for a new suppression hearing in order that exigency may

be assessed on a newly developed and more full record in light of

the Court's holding in" Adkins II. Cassella II, supra, 223 N.J.

at 161.

3 A-3218-15T2
 II.

In Adkins II, the Court instructed trial judges that on a

remand for a new suppression hearing in a pipeline case, the

totality of all the circumstances preceding the blood draw must

be examined. Supra, 221 N.J. at 317. The Court further held that

law enforcement should be permitted . . . to
present to the court 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. 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.

[Ibid.]

Here, the parties stipulated that the testimony of several

witnesses at the initial suppression hearing could be considered

by the judge on remand, and the State recalled two witnesses to

provide additional testimony at the remand hearing. Based upon

this testimony, the totality of circumstances surrounding the

blood draw was as follows.

4 A-3218-15T2
 At approximately 12:12 a.m. on October 16, 2011, defendant

was involved in a motor vehicle accident on Route 80 in Roxbury

that caused the death of Officer Joseph Wargo of the Mount

Arlington Police Department. Defendant was traveling westbound

at a high rate of speed when he lost control of his car, crossed

the grass median, and went into the eastbound lanes, where he

struck Officer Wargo's patrol car head-on. Defendant's car came

to a rest perpendicular to the eastbound center and right lanes,

while the officer's car was forced off the road into the woods.

At approximately 12:15 a.m., Troopers Antonio Sousa and

Michael Gould separately responded to the scene of the accident.

Upon arrival, the troopers saw defendant's heavily-damaged car and

noticed debris all over the highway. At this time, the troopers

were unaware that Officer Wargo's car was off the road in the

woods.

Defendant was still behind the wheel of his car and did not

appear to be seriously injured. Troopers Sousa and Gould testified

that when they asked defendant if he was hurt, defendant's

responses were slow and his speech was slurred. Trooper Gould

also noticed that defendant's "pupils were very constricted" and

he was nodding "in and out[.]"

By this time, the troopers saw several civilian witnesses

walking on the shoulder of Route 80 near the accident scene.

5 A-3218-15T2
Suddenly, a woman screamed that there was another car that was on

fire in the woods. Trooper Sousa ran to investigate, while Trooper

Gould remained with defendant. Trooper Sousa found Officer Wargo

trapped inside his patrol car due to extensive front-end damage.

Officer Wargo would later die as the result of the serious injuries

he sustained. Several other New Jersey State Troopers, along with

a number of firefighters and emergency medical technician (EMT)

personnel, soon responded to the scene to assist in the efforts

to extricate Officer Wargo from his vehicle and secure the accident

scene.

While these efforts continued, Trooper Gould placed defendant

in the backseat of a patrol car for safety purposes, and did not

handcuff him. At approximately 12:27 a.m., Trooper Gould noticed

that his mobile video recorder (MVR) was not on and he manually

activated it. Trooper Gould then questioned defendant about the

accident and asked if he had been drinking or using drugs, which

defendant denied. Trooper Gould testified that defendant appeared

disoriented. Based on these observations, and the fact that he

did not detect an odor of alcohol, Trooper Gould believed defendant

had been using some kind of narcotic.

Trooper Gould wanted to perform field sobriety tests, but the

accident scene had still not been secured. By this time, a number

of municipal police officers from Mount Arlington had arrived to

6 A-3218-15T2
assist with diverting and controlling the traffic that was already

backing up on Route 80.

Trooper Gould was in contact with his two supervisors back

at the barracks. Trooper Gould testified that at that time, a

trooper was not required to obtain consent or a search warrant

before taking a suspect to a hospital for a blood draw and neither

supervisor directed him to do so.

On cross-examination, defense counsel asked Trooper Gould and

Trooper Patrick Freeland to address a document entitled "Obtaining

Blood for [DWI] Prosecution" that the defense had found on the

State Police website. In pertinent part, this document stated:

Officers should use tact and diplomacy when
requesting the assistance of the hospital
staff to secure samples. In the event that
medical personnel are not cooperative, it is
recommended that officers seek the assistance
of their county prosecutor. Although
[Schmerber v. California, 384 U.S. 757, 86 S.
Ct. 1826, 16 L. Ed. 2d 908 (1966)] . . .
determined that consent to be tested is not
required, recent developments [State v.
Ravotto, 169 N.J. 227 (2001)] suggest that we
attempt to obtain consent (request that the
suspect sign a consent form) and, in the event
that the suspect refuses, seek a warrant from
the court.

Both troopers testified they were aware of the document, and

stated that it did not require troopers to obtain consent or a

warrant before transporting a defendant to the hospital for a

blood draw. Trooper Gould testified that he had never sought a

7 A-3218-15T2
telephonic warrant in connection with any previous DWI

investigation.

While Trooper Gould was speaking to defendant, Trooper

Freeland arrived at the scene. Trooper Freeland observed that

"defendant had bloodshot eyes, spoke very slowly and slurred his

words." When Trooper Freeland asked defendant for his

identification, defendant responded that his wallet was in the

center console of his car. Trooper Freeland retrieved the wallet

and, in addition, found an empty prescription bottle labeled

"methadone" in the console. When Trooper Freeland asked defendant

about the bottle, defendant admitted he was a heroin addict and

"had taken methadone earlier in the day[.]"

At that time, Troopers Gould and Freeland left defendant in

the patrol car and went to assist the others in extricating Officer

Wargo. On the way, Trooper Freeland saw Trooper James Hamill and

informed him about the methadone bottle. After the troopers were

finally able to get Officer Wargo out of the car, EMT personnel

attempted to resuscitate him, and Trooper Gould called for a

medical evacuation helicopter to come to the scene. In preparation

for the helicopter's arrival, the troopers established a landing

zone on Route 80, just eastbound of the crash site. All of the

lanes were closed to traffic during this period.

8 A-3218-15T2
 After Trooper Hamill learned that a methadone bottle had been

found, he went to Trooper Gould's patrol car to speak to defendant.

Trooper Hamill noted that defendant's "pupils were extremely

constricted at the time." Trooper Hamill directed defendant to

the rear of the car in order to administer field sobriety tests.

Trooper Hamill observed defendant's eyes with a flashlight and

noticed no change to the pupils after the light was removed, which

he stated was an indication of drug use. Defendant was also

swaying from side-to-side. The trooper terminated the tests when

defendant began to complain of a headache. At that time, Trooper

Hamill placed defendant under arrest for DWI, handcuffed him, and

read him his Miranda1 rights.

At approximately 1:05 a.m., the helicopter arrived and

transported Officer Wargo to Morristown Memorial Hospital. At

this time, the troopers on the scene began to take statements from

each civilian who had stopped at the accident scene. Trooper

Gould spoke to between three and five witnesses shortly after the

helicopter left. Trooper Freeland testified he remained on the

scene for approximately thirty to forty minutes to assist with

traffic control before leaving to resume his regular patrol duties.

1
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630,
16 L. Ed. 2d 694, 726 (1966).

9 A-3218-15T2
 After Trooper Hamill arrested defendant, Trooper Miller, a

more senior officer, arrived at the scene and questioned defendant

further. Defendant told Trooper Miller that he took methadone

"not that long ago." Defendant then invoked his right to remain

silent and the questioning ceased.

Trooper Hamill radioed for a State Police drug recognition

expert to come to the scene. However, another more senior trooper

told Trooper Hamill "that that would not occur tonight and that

we would just go right to the hospital and obtain blood."

According to Trooper Hamill, it was preferable to obtain a blood

sample "[a]s soon as possible, as feasible . . . depending on the

circumstances of the incident" because "[t]hat way we can get a

more accurate reading as to what was in his system at the time."

Trooper Gould was assigned to take defendant to Morristown

Memorial Hospital for the blood draw. Before he was able to do

so, a fatal accident unit investigator had to create a safe path

for Trooper Gould to travel through the accident scene without

damaging any evidence. Trooper Gould left for the hospital with

defendant at approximately 1:27 a.m. Trooper Sousa followed in a

patrol car to assist with defendant at the hospital. The other

troopers remained at the accident scene to continue the

investigation.

10 A-3218-15T2
 On the way to the hospital, Trooper Gould noticed defendant

was "on the nod" in the back seat, falling asleep, and then waking

up. Trooper Gould arrived at approximately 1:46 a.m. Troopers

Gould and Sousa had to find a safe location for defendant to wait

because Officer Wargo's family was also at the hospital and the

troopers wanted to keep defendant separated from them.

At 2:45 a.m., a patient care technician drew defendant's

blood. Trooper Sousa took the sample back to the barracks.

Trooper Gould remained at the hospital with defendant until

approximately 5:30 a.m., when defendant was discharged. Trooper

Gould then transported defendant to the barracks for processing.

Based on the totality of these circumstances, Judge Stephen

Taylor applied the Adkins II standards and rendered a comprehensive

twenty-page written decision denying defendant's suppression

motion. The judge found that "[g]iven the circumstances of the

crash and their interaction with defendant, the troopers clearly

had probable cause to believe . . . defendant was operating his

vehicle under the influence of a controlled dangerous substance."

Although Trooper Freeland found a methadone bottle in defendant's

car, and defendant stated he had ingested methadone at some point

earlier in the evening, the troopers were not certain what type

of drug defendant had taken or when he had taken it. Thus, the

judge found that "[t]he potential dissipation of the unknown drug

11 A-3218-15T2
or drugs ingested by defendant [was] a substantial factor in

determining the objective exigency of the circumstances" under

Adkins II. Trooper Gould stated "that he knew evidence of drug

use dissipated, but not the specific elimination rates." Thus,

the judge determined that "[u]nder the circumstances, it was

entirely reasonable for the troopers to believe that evidence of

drug impairment might dissipate before a warrant could be

obtained."

Judge Taylor credited Trooper Gould's and Trooper Freeland's

testimony that even though they were aware of the "Obtaining Blood

for [DWI] Prosecution" document on the State Police website, "they

believed they were not required at the time to seek consent or a

warrant from a neutral magistrate given the circumstances." The

judge found that this credible testimony was "consistent with the

legal guidance that had been handed down by the courts" prior to

McNeely and Adkins II.

Citing our decision in State v. Jones (Jones II), 441 N.J.

Super. 317 (App. Div. 2015), Judge Taylor determined there were

special facts presented in this case that justified the troopers'

decision to obtain a blood draw without a warrant. This was not

a routine DWI stop. There was a two-car accident, in which

defendant's vehicle was blocking a heavily-traveled interstate

highway and Officer Wargo's vehicle was on fire in the woods. The

12 A-3218-15T2
troopers had to get control of the accident scene, which was

already teeming with civilians, extinguish the fire, attempt to

extricate the seriously injured officer from his demolished patrol

car, arrange for EMTs and other support personnel to get to the

scene, interview the witnesses, and call in an emergency medical

evacuation helicopter.

While all this was happening, the troopers simply did not

have time before Officer Wargo was evacuated to the hospital to

divert their attention to defendant as they could have if this had

been a routine DWI arrest. Once the helicopter left the scene,

the troopers were able to attempt field sobriety tests, interview

defendant, and place him under arrest. A path through the accident

scene then had to be set up to enable Trooper Gould to safely

leave with defendant for the hospital. Trooper Gould was able to

get defendant to the hospital in approximately twenty minutes.

Although hospital staff did not perform the blood draw for another

hour, the blood could have been drawn as soon as defendant arrived

at the hospital.

Summarizing these unique circumstances, Judge Taylor found:

The nature of the accident, the emergency
response to remove Officer Wargo from his
vehicle and transport him by air to the
hospital, the need to secure and investigate
the scene[,] and the time spent transporting
. . . defendant to the hospital all
contributed to the significant delay before a

13 A-3218-15T2
 blood sample could be obtained. The objective
facts clearly show that obtaining a warrant
would have involved additional delay that
could have further threatened the destruction
of the blood evidence.

Thus, the judge concluded that "the warrantless blood draw was

justified, giving substantial weight to the credible belief of the

troopers that the drug evidence would dissipate, and considering

as well the troopers' reasonable response to the events surrounding

the accident and arrest of . . . defendant." This appeal followed.

III.

On appeal, defendant raises the following contentions:

The Totality of Circumstances Favor a Finding
that Exigent Circumstances Did Not Exist, and
a Warrant Should Have Been Obtained.

A. The Standard of Review Favors Reversal
of this Matter.

B. The New Jersey and Federal Constitutions
Favor Obtaining a Search Warrant Prior
to Any Search.

C. Exigent Circumstances Did Not Exist, And
Thus, There Was No Justification for the
Search of [defendant's] Blood.

D. The State Police Should Have Obtained a
Telephonic Warrant.

E. The Trial Court's Conclusion on the
Officers' Perceived Dissipation Was
Unsupported by the Record Adduced at the
Suppression Hearing.

F. The Trial Court Erred in Equating a Urine
Specimen with a Blood Draw.

14 A-3218-15T2
 G. Judge Taylor's Rejection of the State
Police Protocol Misconstrued the
Evidence on the Record.

H. The Trial Court Erred in Finding an
Exigency Existed Because Defendant Did
Not Suffer any Injury.

I. The State Failed to Meet its Burden
Because It Did Not Call the Officer in
Charge of the Investigation to Testify
at the Suppression Hearing.

Our review of a trial judge's decision on a motion to suppress

is limited. State v. Robinson, 200 N.J. 1, 15 (2009). We accord

deference to the trial judge's factual findings, "so long as

sufficient credible evidence in the record supports those

findings[,]" State v. Gonzalez, 227 N.J. 77, 101 (2016), or where

those findings "are substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the

'feel' of the case, which a reviewing court cannot enjoy." State

v. Johnson, 42 N.J. 146, 161 (1964). See also State v. S.S., 229

N.J. 360, 379 (2017) (holding "that a standard of deference to a

trial court's factfindings . . . best advances the interests of

justice in a judicial system that assigns different roles to trial

courts and appellate courts"). However, we owe no deference to

the trial judge's legal conclusions or interpretations of the

legal consequences flowing from established facts and our review

15 A-3218-15T2
in that regard is de novo. State v. Watts, 223 N.J. 503, 516

(2015).

Applying these principles, we discern no basis for disturbing

Judge Taylor's reasoned determination that the totality of the

circumstances the troopers had to confront amply supported the

warrantless blood draw at the hospital under Adkins II. We

therefore affirm substantially for the reasons expressed by Judge

Taylor in his thoughtful and comprehensive written opinion. We

add the following comments.

As Judge Taylor observed, the emergency situation presented

in this case was analogous to the facts in Jones II, where we

found exigent circumstances supporting a warrantless blood draw

in another pipeline case. In Jones II, the defendant caused a

three-car accident "at a busy intersection." Supra, 441 N.J.

Super. at 321. Eleven police officers, four EMTs, a number of

firefighters, fire trucks and other emergency service vehicles

responded to the scene. Ibid. The defendant was injured in the

accident and it took about thirty minutes to extricate her from

her car. Ibid. The defendant was unconscious and one of the

other drivers was also injured. Ibid. They were taken to the

hospital where a blood sample was drawn from the defendant

approximately seventy-five minutes after the police first arrived

at the scene. Ibid.

16 A-3218-15T2
 Similar to the defendant in Jones II, here, defendant lost

control of his speeding vehicle and drove it head-on into Officer's

Wargo's police car. Approximately nine troopers, together with

municipal police officers, EMTs, and firefighters, responded to

the accident scene with emergency equipment and vehicles. The

troopers had to close Route 80, re-route traffic, manage and

safeguard the integrity of the accident scene, protect the

civilians who were onsite, attempt to extricate the seriously

injured officer from his car, arrange for a medical evacuation

helicopter to come to the scene, and then create a landing area

for it.

It took approximately one hour to extricate Officer Wargo and

transport him to the hospital. During that period, the troopers

largely had to leave defendant alone in the back of a patrol car.

By 1:05 a.m. when Officer Wargo left in the helicopter, the

troopers suspected defendant was under the influence of one or

more drugs, and Trooper Freeland had found the methadone bottle.

Defendant also stated he had taken methadone at some unspecified

point earlier in the evening. Once Trooper Hamill attempted to

conduct field sobriety tests and Trooper Miller questioned

defendant, Trooper Gould made arrangements with a fatal accident

unit investigator on the scene to clear a path through the debris

to enable him to take defendant to the hospital for a blood draw.

17 A-3218-15T2
Although the troopers did not know what drug defendant had taken,

they knew they needed to have the blood test performed as soon as

possible because the presence of drugs in the blood dissipates

over time. Trooper Gould got defendant to the hospital by 1:46

a.m. and the hospital performed the blood draw at 2:45 a.m.

Therefore, except for the fact that defendant was not

seriously injured, the circumstances here are virtually identical,

and comparably exigent, to those presented in Jones II. In both

cases, there was a serious accident on a major highway, injuries

requiring hospitalization of one of the drivers, and at least an

hour-long police investigation involving a number of police

officers and emergency personnel. Viewing the totality of the

circumstances of this case objectively, we are satisfied that

Judge Taylor properly concluded that the troopers were confronted

with an emergency situation that justified the warrantless blood

draw under Adkins II.

Judge Taylor also correctly rejected defendant's attempts to

isolate several facts in this case from the totality of all of the

circumstances to support his argument that the troopers should

have sought defendant's consent or a warrant prior to obtaining

the blood draw. For example, defendant again asserts on appeal

that so many troopers responded to the scene that one of them

could have left what he or she was doing and sought a telephonic

18 A-3218-15T2
warrant to seize defendant's blood. However, as discussed above,

each of the troopers at the chaotic accident scene was performing

multiple necessary tasks, including directing traffic, attempting

to extricate Officer Wargo, and interviewing witnesses.

Thus, almost a full hour had already passed by the time the

troopers were finally able to turn their full attention to

defendant at 1:05 a.m. Within twenty minutes, Gould was on his

way to the hospital with defendant, and the blood draw could have

occurred at any point after they arrived at 1:46 a.m. As defendant

concedes, any attempt to obtain a telephonic warrant at that point

would have taken at least fifty-nine additional minutes and

possibly as long as two more hours. State v. Witt, 223 N.J. 409,

436 (2015). Thus, the troopers clearly had an objective basis

based on the exigencies presented for proceeding with the

warrantless blood draw at the earliest possible time.

Like Judge Taylor, we also reject defendant's argument that

the troopers failed to comply with a "protocol" for seeking a

warrant set forth in the "Obtaining Blood for [DWI] Prosecution"

document. As Judge Taylor found, the troopers credibly testified

that this document did not require them to obtain a warrant prior

to taking a suspect to the hospital for a blood draw, and we defer

to the judge's credibility determination. State v. Locurto, 157

N.J. 463, 474 (1999).

19 A-3218-15T2
 Moreover, the document states that "consent to be tested is

not required," and it merely "suggest[s]" that an "attempt to

obtain consent" be made and a warrant sought if consent is not

forthcoming. Under these circumstances, we discern no basis for

disturbing Judge Taylor's finding that the troopers' testimony

concerning the document was "consistent with the legal guidance

that had been handed down by the courts" up to the time of the

McNeely decision.

As for the balance of defendant's arguments not expressly

discussed above, they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

In sum, the troopers' actions were clearly appropriate under

the totality of these circumstances. Therefore, Judge Taylor

properly denied defendant's motion to suppress the blood test

results.

Affirmed.

20 A-3218-15T2