NOT FOR PUBLICATION WITHOUT THE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
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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
STATE OF NEW JERSEY VS. MICHAEL CASSELLA(12-01-0075, MORRIS COUNTY AND STATEWIDE)
Combined Opinion