State v. Rafael Camey (080574)(Passaic County and Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.
State v. Rafael Camey (A-73-17) (080574)
Argued January 2, 2019 -- Decided August 1, 2019
LaVECCHIA, J., writing for the Court.
The Court reviews two key pre-trial determinations involving the DNA evidence
from defendant Rafael Camey, who stands charged with murder. First, the trial court
ruled the results of a buccal swab that had been excluded on the basis of invalid consent
inadmissible under either of the State’s inevitable discovery arguments. Second, the trial
court also applied an inevitable discovery analysis in rejecting the State’s application to
take a second buccal swab from defendant. The second determination raises a novel
question: Under what circumstances, if any, may the police apply to conduct a new
search for immutable evidence like DNA? Is a suspect’s DNA off-limits to law
enforcement for all time if an initial search was invalid? Or, are there situations in which
law enforcement may seek a new buccal swab to examine a person’s DNA?
On September 30, 2013, the Passaic Police Department received a 9-1-1 report of
a brutally beaten body of a woman, later identified as “Katie,” in a wooded area near a
river bank behind a ShopRite store. Sergeant Bordamonte, the lead detective in the
matter, was familiar with “Tina,” a prostitute, who placed the 9-1-1 call. Bordamonte
interviewed Tina, who said that Katie was “the new girl on the block” and that she saw
Katie with a person she described as a “violent Mexican male” on the night before
Katie’s death. Tina said that she had been choked by the same man during a paid sexual
encounter. She also said that the man had assaulted another woman.
Police obtained a statement from Katie’s husband, who stated that Katie was a
prostitute and drug addict who would “disappear for days at times.” Later, Bordamonte
learned that Katie’s husband had been arrested for aggravated sexual assault and
kidnapping and that there had been a domestic violence incident between him and Katie.
Over the next weeks, the police interviewed Tina again, as well as other people
who knew Katie. The police also interviewed and took, with consent, buccal swabs from
numerous individuals who were in the vicinity of where Katie’s body was found. On
October 20, 2013, Tina called police to report that she saw the violent male. Police
responded to her location, where Tina made an on-scene identification of defendant.
1
The next night, officers went to a bar that defendant frequented after his work shift
and detained him. A detective advised defendant of his Miranda rights and interviewed
him in Spanish, his native language, but presented him with a consent form for a buccal
swab printed in English. After defendant signed the untranslated form, another detective
took a buccal swab from defendant and released him. Several weeks later, Bordamonte
sent defendant’s DNA sample, along with the approximately twenty other samples
collected from local homeless individuals, to the State Police Laboratory for testing.
On June 25, 2014, the State Police notified Bordamonte that DNA found on
Katie’s body matched defendant’s DNA profile. That day, defendant was placed under
arrest and charged with felony murder, murder, and aggravated sexual assault.
During pre-trial applications, the trial court was required to evaluate defendant’s
consent to the buccal swab. The court determined that the consent obtained from
defendant was invalid and ordered suppression of the DNA test results from that swab,
holding that the swab was the product of an illegal detention, the consent form presented
to defendant was written in English and never translated for defendant into his native
Spanish, and defendant was never informed of his right to refuse or that the DNA would
be sent to a police lab for analysis in a criminal investigation.
Thereafter, the trial court also rejected the State’s further argument that the swab’s
results were admissible under the inevitable discovery exception to the exclusionary rule.
The court followed the formulation of that doctrine adopted for use in New Jersey in
State v. Sugar, 100 N.J. 214 (1985) (Sugar II). The court determined that the State failed
to show that proper, normal and specific investigative procedures would have been
pursued. The court noted there was “little urgency” and “little use of legal process”
throughout the investigation and referenced Bordamonte’s “infrequent use of the legal
process,” throughout his career. The court further pointed to other investigatory failings
or shortcomings, citing as “shocking” the failure to interview defendant’s roommates or
co-workers regarding his whereabouts on the night of the murder, and the failure to seek
a search warrant for the home of Katie’s husband, despite his criminal history, including
his prior incident of domestic violence involving the victim.
The court rebuffed the State’s argument that it would have inevitably obtained
defendant’s DNA because police are statutorily required to take a DNA sample from
persons arrested for certain enumerated violent crimes including sexual assault (with
which defendant was charged here). Because defendant was arrested primarily based on
the illegally obtained DNA sample, the court would not allow the State to rely on an
arrest based on those DNA results to justify the taking of another swab. Moving on to the
State’s application to compel defendant to provide a new buccal swab under Rule 3:5A,
the trial court denied the motion. The court concluded that the application must also be
evaluated under inevitable discovery and held that the doctrine’s application already had
been rejected by the court.
2
The Appellate Division affirmed on interlocutory appeal, and the Court granted
the State’s motion for leave to appeal. 234 N.J. 6 (2018).
HELD: The Court affirms the suppression of DNA evidence from the first buccal swab.
The trial court’s thorough and detailed reasons for denying admission of this evidence,
under either of the State’s two inevitable discovery arguments, are clearly sustainable on
appeal. However, the State’s application for a second buccal swab calls for a remand for
further proceedings consistent with this opinion and its new test, derived in part from
aspects of the independent source doctrine: To apply for a new buccal swab for DNA
evidence under Rule 3:5A, the State must demonstrate probable cause for the new search.
That showing may include evidence that existed before the initial invalid search, but
cannot be tainted by the results of the prior search. In addition, to deter wrongdoing by
the police, the State must show by clear and convincing evidence that the initial
impermissible search was not the result of flagrant police misconduct.
1. A buccal swab is a common method to collect specimen material for DNA testing.
But it is also a “search,” and must be obtained in a manner consistent with constitutional
search and seizure principles for valid use in a criminal prosecution. To pass muster, a
search must be conducted pursuant to a search warrant or must fall within an exception to
the warrant requirement. Obtaining voluntary consent to conduct a buccal swab is one
way to obtain a constitutionally valid swab without a search warrant. Another means for
obtaining a swab is to utilize judicial authority to compel a suspect to submit to an
investigative detention. Pursuant to Rule 3:5A-1, investigative detention orders can
compel a defendant “to submit to non-testimonial identification procedures for the
purpose of obtaining evidence of that person’s physical characteristics.” Rule 3:5A-4
provides the substantive standards for issuance of such an order. (pp. 17-20)
2. Whereas consent can serve as an exception to the warrant requirement, the inevitable
discovery doctrine under Sugar II can preserve the admissibility of evidence obtained
without a warrant or a valid exception to the warrant requirement. The Court agrees with
the trial court’s determination that inevitable discovery was the correct prism through
which to evaluate the State’s request to avoid exclusion of the DNA results from
defendant’s illegal buccal swab. While no published New Jersey opinion has applied the
inevitable discovery doctrine to immutable DNA evidence, many other states have. The
Court rejects arguments that DNA identification evidence is exempt from an inevitable
discovery analysis merely because it reveals uniquely identifying information about an
individual’s identity. The trial court and Appellate Division here correctly determined
that the doctrine could be used to evaluate DNA evidence. (pp. 21-27)
3. The Court also agrees with the trial court’s application of the inevitable discovery
standard to defendant’s buccal swab and has no difficulty affirming its findings, which
were based on the determination that the State failed to meet the first prong of the Sugar
II test by clear and convincing evidence. The State argues that police either would have
3
applied for a search warrant or an investigative detention to obtain a buccal swab from
defendant or would have acted on its probable cause to arrest him. But the events of the
actual investigation suggest otherwise, as the trial court found. (pp. 27-30)
4. The trial court also used an inevitable discovery analysis to parse the State’s
application under Rule 3:5A for an order to take a new buccal swab and rejected the
request essentially for the reasons already given in its previous inevitable discovery
ruling. The Court is unconvinced that an inevitable discovery framework is correct in
these circumstances. The doctrine generally addresses completed searches that cannot be
replicated. A key factor in the trial court’s decision here was its perception that the State
was seeking to obtain through legal means the same evidence that it had earlier obtained
unlawfully. But DNA is not an item like guns, drugs, or documents. A new DNA
sample might provide the same information as the original sample, but each sample is
evidence in its own right -- and the exclusionary rule bars the use of the same evidence
that was illegally obtained or “poisoned fruit” evidence that would not have been
discovered but for the initial, illegally obtained evidence. The State’s request to compel a
new sample must therefore be viewed for what it truly is: a request to obtain a new
buccal sample -- new evidence -- notwithstanding that it will lead to the same uniquely
identifying information that DNA provides. A properly issued judicial order under Rule
3:5A-4 should be available to law enforcement, on the right terms. (pp. 30-33)
5. The Court fashions a standard tailored for the unique nature of DNA evidence and a
fair assessment of whether a second buccal swab sample should be allowed. The test is
derived in part from aspects of the independent source doctrine, as set forth in State v.
Holland, 176 N.J. 344, 360-62 (2003). Noting that flagrancy is a high bar that requires
active disregard of proper procedure, or overt attempts to undermine constitutional
protections, the Court adopts the following test: First, the State must demonstrate that
probable cause exists to conduct the new search. The court should look at the showing
advanced by the State to demonstrate probable cause. The evidence may involve the
same evidence that existed at the time of the illegal search. Thus, Tina’s statements and
her identification of defendant are not off-limits. Second, the court should determine
whether the State’s showing of probable cause is untainted by the results of the prior
search. Here, that means that the probable cause must be independent of the information
obtained through the results from the prior swab. Third, to deter wrongdoing by the
police, the Court requires the State to show by clear and convincing evidence that the
initial impermissible search was not the result of flagrant police misconduct. The Court
notes that a buccal swab is minimally intrusive and stresses that it is considering only a
Rule 3:5A application which addresses minimally intrusive identification procedures.
The Court remands to allow the State to demonstrate whether it can meet the standard
announced. Because the original judge made extensive credibility determinations about
the witnesses before the court, as well as about Tina, who was not before the court, the
Court refers this matter to the Assignment Judge for assignment. (pp. 33-36)
4
The judgment of the Appellate Division is AFFIRMED IN PART and
REVERSED IN PART, and the matter is REMANDED for further proceedings.
JUSTICE ALBIN, dissenting, expresses the view that there is no basis to reverse
the trial court’s suppression order and to remand before a different judge, because the
State cannot prove by clear and convincing evidence that the police officers did not
engage in flagrant misconduct when they unlawfully detained Camey three times,
unlawfully interrogated him, and unlawfully secured a buccal swab without his consent.
Justice Albin notes that the trial court properly applied the inevitable discovery doctrine
-- the theory presented by the State at the suppression hearing -- and that its factfindings
must be accorded deference. Justice Albin also explains that the majority’s retreat from
Holland’s rigorous independent source test -- the test for determining whether a “seizure
of evidence was independent of, and untainted by, earlier illegal police misconduct” --
diminishes the deterrent effect of the exclusionary rule. In Justice Albin’s view, allowing
the State to rely on the same evidence to establish probable cause permits the police a do-
over after a failure to adhere to constitutional dictates.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a dissent.
5
SUPREME COURT OF NEW JERSEY
A-73 September Term 2017
080574
State of New Jersey,
Plaintiff-Appellant,
v.
Rafael Camey,
Defendant-Respondent.
On appeal from the Superior Court,
Appellate Division .
Argued Decided
January 2, 2019 August 1, 2019
Lila B. Leonard, Deputy Attorney General, argued the
cause for appellant (Gurbir S. Grewal, Attorney General,
attorney; Lila B. Leonard, of counsel and on the brief,
and Christopher W. Hsieh, Chief Assistant Passaic
County Prosecutor, on the brief).
Stefan Van Jura, Deputy Public Defender, argued the
cause for respondent (Joseph E. Krakora, Public
Defender, attorney; Stefan Van Jura, of counsel and on
the brief, and Laura C. Sutnick, Designated Counsel, on
the brief).
Alexander Shalom argued the cause for amicus curiae
American Civil Liberties Union of New Jersey (American
Civil Liberties Union of New Jersey Foundation,
attorneys; Alexander Shalom, Tess Borden, Edward
Barocas, and Jeanne LoCicero, on the brief).
1
JUSTICE LaVECCHIA delivered the opinion of the Court.
In this case, defendant Rafael Camey stands charged with murder. The
police discovered the victim’s lifeless body behind a supermarket in Passaic
and swabbed it for DNA evidence. The victim had been brutally beaten and
was partially disrobed; the cause of her death was blunt force trauma and
drowning.
The ensuing investigation led the police to search for a particular violent
individual with whom the victim had been seen. To try to solve the crime, the
police swabbed multiple individuals for DNA including defendant. His DNA
profile matched the DNA found in the victim. In this interlocutory appeal, we
review two key pre-trial determinations involving the DNA evidence from
defendant.
First, after the trial court granted defendant’s motion to suppress DNA
results from a buccal swab obtained on the basis of invalid consent, which the
State no longer contests, the State sought admission of the excluded DNA
results on the basis of inevitable discovery. The State argued that it could
have obtained a buccal swab from defendant under N.J.S.A. 53:1-20.20 or
through an application for investigative detention under Rule 3:5A-4. The trial
court agreed to employ an inevitable discovery analysis and ruled the results
2
from that buccal swab inadmissible under either inevitable discovery
argument. The Appellate Division affirmed the suppression of the results from
that swab.
Second, the State filed a separate application under Rule 3:5A-4 to take
a second buccal swab from defendant. The court again turned to the
framework of an inevitable discovery analysis and rejected the application.
The Appellate Division again affirmed.
Like the trial court and the Appellate Division, we hold that the police
violated the Fourth Amendment in the way they obtained defendant’s DNA.
As a result, the results from that search cannot be used.
DNA evidence, however, is immutable. It is unlike a completed search
of a home in which the police already removed contraband -- a search that
cannot be repeated. After a person is swabbed for DNA, of course, his DNA
remains intact. It will be the same ten years from now as it was several years
ago. The application for a second buccal swab from defendant calls into
question the standard to which the State should be held when making an
application for a judicially sanctioned swab as part of an investigative
detention, see R. 3:5A-4, after the State’s previous swab -- secured through an
unconstitutional search and seizure -- was excluded. Notwithstanding the
immutability of DNA information, the second buccal swab does not lose its
3
character as a second search and seizure merely because the new buccal
evidence will provide the same uniquely identifying information available
from an individual’s DNA that the initial buccal evidence provided.
The appeal thus raises a novel question: Under what circumstances, if
any, may the police apply to conduct a new search for immutable evidence like
DNA? Is a suspect’s DNA off-limits to law enforcement for all time if an
initial search was invalid? Or, are there situations in which law enforcement
may seek a new buccal swab to examine a person’s DNA?
We conclude that a traditional inevitable discovery “look-back” analysis
for alternative reasoning to support admission of already-seized evidence is a
poor fit for the analysis needed in these circumstances. Instead, we draw from
the independent source doctrine to analyze the question and frame an
appropriate test. To apply for a new buccal swab for DNA evidence under
Rule 3:5A, we conclude that the State must demonstrate probable cause for the
new search. That showing may include evidence that existed before the initial
invalid search, but the showing cannot be tainted by the results of the prior
search. In addition, to deter wrongdoing by the police, the State must show by
clear and convincing evidence that the initial impermissible search was not the
result of flagrant police misconduct. The approach adopted protects a
4
suspect’s constitutional rights and recognizes the legitimate public interest in a
fair assessment of whether a second buccal swab sample should be allowed.
In sum, we affirm the suppression of DNA evidence from the first buccal
swab. We hold that the trial court’s thorough and detailed reasons for denying
admission of this evidence, under either of the State’s two inevitable discovery
arguments, are clearly sustainable on appeal. However, the State’s application
for a second buccal swab calls for a remand. We vacate the Appellate
Division’s affirmance of the denial of the State’s application to take a new
buccal swab from defendant and remand for further proceedings consistent
with this opinion and the new test set forth herein.
I.
The pertinent facts from the pre-trial applications and related evidential
proceedings involve the State’s investigation into the death of a woman whose
body was discovered in a secluded area of Passaic and the narrowing of the
investigation to defendant.
A little after 6:00 p.m. on September 30, 2013, the Passaic Police
Department received a 9-1-1 report of a body in a wooded area near a river
bank behind a ShopRite store. Sergeant Bordamonte, the lead detective in the
matter, testified that the deceased -- later determined to be a woman named
5
Katie1 -- had been “beaten very, very brutally” and was partially disrobed. An
autopsy revealed that the cause of death was blunt force trauma and drowning.
Bordamonte was familiar with Tina, the person who placed the 9-1-1
call. The police knew she was a prostitute who frequented the area where
Katie’s body was located and that she had provided useful information in other
police investigations.
Bordamonte interviewed Tina the day after Katie’s body was found.
Tina told Bordamonte that Katie was “the new girl on the block” and that she
saw Katie with a person she described as a “violent Mexican male” (the violent
male) at about 11:00 p.m. on the night before Katie’s death. Tina said that she
had been choked by the same man during a paid sexual encounter. She also
said that the man had assaulted another woman, Ashley, and that a friend,
Dennis, would be better able to describe this man because Dennis “definitely
knows who he is.”2 Bordamonte showed Tina photographs from the police
database and later drove her around in the hope that she might recognize the
man she recalled seeing with Katie. Neither effort produced an identification,
and Tina agreed to contact the police if she saw the man again. According to
1
We have assigned fictitious names to many individuals discussed herein,
including the victim, her husband, and the informant.
2
Those statements were not borne out in independent interviews of Ashley
and Dennis.
6
Bordamonte, Tina appeared to be under the influence of an intoxicating
substance during this initial interview.
Later that day, police obtained a statement from Katie’s husband,
Martin. According to Martin, Katie was a prostitute and drug addict. He said
that he had not seen her for one or two days and that it was not uncommon for
her to “disappear for days at times.” Bordamonte later learned, through a
criminal history search, that Martin had been arrested for aggravated sexual
assault and kidnapping and that there had been a domestic violence incident
between him and Katie.
Three days after finding Katie’s body, Bordamonte conducted a second
interview with Tina in which she repeated that she last saw Katie with the
violent male the night before her body was found. During this interview, Tina
again appeared to Bordamonte to be under the influence of drugs.
That same day, police officers conducted on-scene interviews with
approximately sixteen homeless individuals who were in the vicinity of where
Katie’s body was found and from whom the police received consent to take
buccal swabs. None of the individuals whom the police interviewed and
swabbed were able to provide information related to Katie’s death.
Beforehand, police had administered buccal swabs to at least four other
homeless individuals who were in the area near where Katie’s body was found.
7
On October 8, 2013, police interviewed a friend of Katie’s, Penny, who
reported that Katie and Martin were having “marital problems.” Penny also
stated that, on the night before Katie’s body was found, she saw her with a
man named Richard and she believed Richard was involved in the murder
because he had not been back since that night. Richard was subsequently
interviewed, and he confirmed that he saw Katie the night before her body was
found. Others interviewed by Bordamonte included a woman who reported
that she had acted as a lookout for Katie while Katie had a sexual encounter
with a Polish man the day she was killed. According to this report, Katie and
that man were alone for a long time.
On October 18, 2013, Tina was interviewed for a third time. She
reiterated that she last saw Katie walking away from others toward a more
secluded area with the so-called violent male and added that the “rumor in the
street” was that someone called “Blaze” killed Katie.3 Two days after this
interview, Tina called police to report that she saw the violent male about
whom she had been telling them. Police responded to her location, where Tina
made an on-scene identification of defendant by pointing him out.
3
At the suppression hearing, Bordamonte could not confidently confirm that
Tina was under the influence of drugs during the October 18 interview , unlike
his observations from earlier interviews, but he stated that her behavior that
day suggested that she may have been.
8
Thus, despite the investigation leading in various directions, by October
21, 2013, defendant was a person of interest in the investigation into Katie’s
murder. That night, officers went to a bar that defendant frequented after his
work shift and detained him. Detective Alex Flores advised defendant of his
Miranda4 rights and interviewed him in Spanish, his native language. Flores
also presented defendant with a consent form for a buccal swab printed in
English. After defendant signed the untranslated form, another detective took
a buccal swab from defendant and released him.
Several weeks later, on January 13, 2014, Bordamonte sent defendant’s
DNA sample, along with the approximately twenty other samples that the
police had collected from local homeless individuals, to the State Police
Laboratory for testing. Bordamonte testified that he waited so he could submit
the samples in a single group, conceding that the submission “was a touch
delayed.”
On March 18, 2014, Tina provided police with another formal statement,
this time shortly after her incarceration, during which she was drug-free. This
statement was consistent with her previous statements regarding Katie and the
violent male. Also, after viewing photographs depicting eighteen of the
twenty individuals who had either consented to buccal swabs or been
4
Miranda v. Arizona, 384 U.S. 436 (1966).
9
interviewed as part of the investigation, Tina picked out defendant as the
violent male she had described.
On April 8, 2014, police brought defendant in for a second interview .
Detective Reinaldo Arroyo read defendant his Miranda rights in Spanish and
repeated them, upon defendant’s request, before conducting the interview.
Defendant was released at the end of that interview.
On June 25, 2014, the State Police notified Bordamonte that DNA found
on Katie’s body matched defendant’s DNA profile. That day, defendant was
brought to police headquarters, was read his Miranda rights in Spanish, and
spoke with police for several hours. He was placed under arrest at the
conclusion of that interview and charged with felony murder, N.J.S.A. 2C:11-
3(a)(3); murder, N.J.S.A. 2C:11-3(a)(1); and aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(6).
II.
During pre-trial applications, the trial court was required to evaluate
defendant’s consent to the buccal swab. The court already had ordered the
suppression of defendant’s three statements, which the State does not contest
on appeal. With respect to the buccal swab, the court determined that the
consent obtained from defendant was invalid and ordered suppression of the
DNA test results from that swab. The court held that the swab was the product
10
of an illegal detention, the consent form presented to defendant was written in
English and never translated for defendant into his native Spanish, and
defendant was never informed of his right to refuse or that the DNA would be
sent to a police lab for analysis in a criminal investigation.
Thereafter, the trial court also rejected the State’s further argument that
the swab’s results were admissible under the inevitable discovery exception to
the exclusionary rule. The court followed the formulation of that doctrine
adopted for use in this State in State v. Sugar, 100 N.J. 214 (1985) (Sugar II),
which has a three-pronged test that the State must satisfy by clear and
convincing evidence.
The court determined that the State failed to show that proper, normal
and specific investigative procedures would have been pursued, rejecting, in
particular, the State’s assertion that Bordamonte would have applied for a
search warrant for defendant’s DNA had defendant denied consent. In
reaching that conclusion, the court reasoned that although Bordamonte
collected DNA samples from twenty “homeless males” and several other
people by the time detectives obtained defendant’s DNA on October 21, 2013,
the swabs were not taken to the lab until January 13, 2014. The court noted
there was “little urgency” and “little use of legal process” throughout the
investigation and referenced Bordamonte’s “infrequent use of the legal
11
process,” throughout his career.5 The court further pointed to other
investigatory failings or shortcomings as reinforcing the conclusion that police
would not have obtained a warrant for DNA. For example, the court cited as
“shocking” the failure to interview defendant’s roommates or co-workers
regarding his whereabouts on the night of the murder, and the failure to seek a
search warrant for the home of Katie’s husband, Martin, despite his criminal
history, including his prior incident of domestic violence involving the victim.
The court added that, even if Bordamonte had applied for a warrant or a
Rule 3:5A investigative detention order when taking the buccal swab from
defendant, the court “would have been very concerned as to whether the
application met the standard required.” Among other things, the court cited
credibility concerns attributed to Tina’s criminal history and her substantial
narcotics impairment at the time of two of her statements relied on by the
State.
To the extent that the State argued that it would have inevitably obtained
defendant’s DNA because police are statutorily required to take a DNA sample
from persons arrested for certain enumerated violent crimes under N.J.S.A.
53:1-20.20, including sexual assault (with which defendant was charged here),
the court rebuffed the argument. Explaining that defendant was arrested
5
The court also relied on a past internal investigation involving Bordamonte.
12
primarily based on the illegally obtained DNA sample, the court would not
allow the State to rely on an arrest based on those DNA results or his
suppressed statements to justify the taking of the swab sample. The court also
questioned whether Tina, who had not appeared in court, had sufficient
credibility to support an arrest based on her claim that she had been assaulted
by defendant in the past.
Moving on to the State’s application to compel defendant to provide a
new buccal swab under Rule 3:5A, the trial court denied the motion. The court
concluded that the application must also be evaluated under inevitable
discovery and held that the doctrine’s application already had been rejected by
the court.
The State filed an interlocutory appeal from both rulings, which the
Appellate Division granted. The Appellate Division stated that the trial court’s
“detailed and well-reasoned oral decision” was consistent with Sugar II and
properly considered whether Bordamonte would have obtained a search
warrant, rather than whether he could have. Noting that an appellate court is
not at liberty to supplant the trial court’s credibility determinations with its
own “merely because [it] might have reached a different conclusion,” the
appellate court affirmed the trial court. The Appellate Division held that, “in
light of the record and the judge’s detailed conclusions,” the trial court did not
13
abuse its discretion in suppressing the results of the first buccal swab, denying
the State’s motion to admit the evidence under inevitable discovery, and
denying the motion to compel a second buccal swab also under an inevitable
discovery analysis.
The State moved for leave to appeal. We granted the State’s motion.
234 N.J. 6 (2018). We also granted leave to appear as amicus curiae to the
American Civil Liberties Union -- New Jersey (ACLU).
III.
The State maintains before this Court that it has shown by clear and
convincing evidence that the evidence from the first buccal swab would have
been inevitably discovered under the three-prong test set forth in Sugar II.
With regard to the denial of its application under Rule 3:5A to take a
second buccal swab, the State argues that it has probable cause to collect
defendant’s DNA today “based [in part] on the robust investigation the police
conducted” before obtaining defendant’s DNA sample on October 21, 2013.
Regardless of any alleged constitutional violation in connection with obtaining
the first swab, the State argues that defendant should not be permitted to
“suppress his identity.”
Defendant maintains that the State failed to satisfy the Sugar test and
largely relies on the trial court’s findings and reasoning. Defendant also
14
disputes that the State could have obtained defendant’s DNA pursuant to
N.J.S.A. 53:1-20.20. And, in response to the State’s argument that defendant
cannot “suppress his identity” in connection with an application for a second
buccal swab under Rule 3:5A and otherwise, defendant reasons that DNA is
“something of evidentiary value” and, as “identity-related evidence,” it can be
suppressed just like other evidence.
The ACLU emphasizes that the State established only that it was
plausible -- not that it was inevitable, as required under Sugar -- that
Bordamonte would have applied for a warrant to search defendant had police
not performed an invalid consent search. It urges that we not disturb the trial
court’s determinations about Bordamonte’s credibility as a witness or second
guess the evidence the court considered in making the determination about
what he would have done. More fundamentally, the ACLU challenges the use
of inevitable discovery in this setting. It contends police officers would have
no incentive to seek warrants even when they have probable cause to search if
they could simply argue inevitable discovery later.
The ACLU also argues that the leading inevitable discovery cases
require an inevitable discovery despite -- not simply in the absence of -- the
unlawful behavior. In this case, the ACLU maintains that the application for a
judicial warrant to take a second buccal swab would not have occurred despite
15
the unlawful buccal swab. The ACLU reasons that, because the lawful process
that “would have” resulted in inevitable discovery was not independent from
the unlawful process that actually was pursued, any use of the inevitable
discovery doctrine in this matter should be invalid.
IV.
A.
The Fourth Amendment to the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution protect individuals from
unreasonable searches and seizures. State v. Gathers, 234 N.J. 208, 219
(2018). “Those provisions impose a standard of reasonableness on the
exercise of discretion by government officials to protect persons against
arbitrary invasions.” State v. Chisum, 236 N.J. 530, 544-45 (2019) (quoting
State v. Maristany, 133 N.J. 299, 304 (1993)). In balancing an intrusion
against the promotion of legitimate governmental interests when performing a
reasonableness analysis, the balance generally is struck “in favor of the
procedures described by the Warrant Clause of the Fourth Amendment.” State
v. O’Hagen, 189 N.J. 140, 149 (2007) (quoting Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602, 619 (1989)).
The warrant requirement interposes a neutral magistrate between the
police officer and the person against whom the search is directed, unless the
16
search falls within a recognized exception to the warrant requirement. See
State v. Sullivan, 169 N.J. 204, 210 (2001). Evidence that is seized in
violation of the warrant requirement, and any recognized exception to it, is
excluded as a general rule. Ibid.Those very basic principles provide the starting point to our analysis.
B.
This appeal concerns the taking of a buccal swab from defendant, which
produced nontestimonial DNA identification information about defendant.
This is a unique category of evidence.
DNA evidence is extremely useful for identification purposes in criminal
prosecutions as well as for exonerations. See Dist. Attorney’s Office for the
Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009) (“DNA [evidence] has
an unparalleled ability both to exonerate the wrongly convicted and to identify
the guilty. It has the potential to significantly improve both the criminal
justice system and police investigative practices.”). The United States
Supreme Court has stated that the difference between using DNA analysis and
fingerprint databases to identify a suspect “is the unparalleled accuracy DNA
provides.” Maryland v. King, 569 U.S. 435, 451 (2013). As a result, “the
utility of DNA identification in the criminal justice system [has become]
17
undisputed.” Id. at 442. Our own case law recognizes as much. See State v.
Sterling, 215 N.J. 65, 103-04 (2013); see also O’Hagen, 189 N.J. at 163.
Presently, all fifty states require the collection of DNA for certain -- if
not all -- felony convictions. King, 569 U.S. at 445; see, e.g., 34 U.S.C. §
12592 (creating federal index to facilitate law enforcement exchange of DNA
identification information); N.J.S.A. 53:1-20.20 (requiring collection of DNA
upon conviction of certain crimes and upon arrest for a limited set of
enumerated offenses). Thus, in New Jersey, and other jurisdictions, law
enforcement uses the collection of DNA as an important tool in identification.
A buccal swab is a common method of law enforcement collection of
specimen material for DNA testing. But, it is also beyond dispute that the
taking of a buccal swab “for the purposes of obtaining a DNA sample is a
‘search.’” O’Hagen, 189 N.J. at 149 (citing Skinner, 489 U.S. at 616-17);
accord Gathers, 234 N.J. at 221. And because a buccal swab constitutes a
search, it must be obtained in a manner consistent with constitutional search
and seizure principles for valid use in a criminal prosecution.
To pass constitutional muster, a search must be conducted pursuant to a
search warrant or must fall within an exception to the warrant requirement.
See Sullivan, 169 N.J. at 210. “One well-recognized exception to the warrant
requirement is consent.” State v. Cushing, 226 N.J. 187, 199 (2016) (citing
18
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Obtaining voluntary
consent to conduct a buccal swab is one way to obtain a constitutionally valid
swab without a search warrant. To ensure validity, warnings given to an
individual informing about the right to refuse consent help the State later carry
its burden to demonstrate that the consent was truly a voluntary, knowing, and
intelligent waiver of the right to be free of such an intrusion. See State v.
Johnson, 68 N.J. 349, 354 (1975).
Another means for obtaining a swab is to utilize judicial authority to
compel a suspect to submit to an investigative detention, which is the
functional equivalent of an application for issuance of a search warrant. See
State v. Hall, 93 N.J. 552, 557-59 (1983) (recognizing judicial authority to
authorize investigative detentions founded on the Judiciary’s constitutional
authority governing search and seizure). Taking a lead from the United States
Supreme Court in Davis v. Mississippi, 394 U.S. 721, 727-28 (1969), our
Court concluded that for certain detentions, which are minimally intrusive,
produce reliable evidence, and can be effected “without abuse, coercion or
intimidation,” the proofs required for an investigative detention order need not
rise to probable cause. Hall, 93 N.J. at 561-62; accord In re Alleged
Aggravated Sexual Assault of A.S., 366 N.J. Super. 402, 409-10 (App. Div.
2004).
19
Court rules now formalize the guidelines for issuance of an order for
investigative detention to compel lineups, fingerprinting, and other minimally
intrusive identification procedures. See State v. Rolle, 265 N.J. Super. 482,
486 (App. Div. 1993). Pursuant to Rule 3:5A-1, investigative detention orders
can compel a defendant “to submit to non-testimonial identification procedures
for the purpose of obtaining evidence of that person’s physical characteristics.”
Rule 3:5A-4 provides the substantive standards for issuance of such an order:
An order for an investigative detention shall be issued
only if the judge concludes from the application that:
(a) a crime has been committed and is under
active investigation, and
(b) there is a reasonable and well-grounded basis
from which to believe that the person sought may
have committed the crime, and
(c) the results of the physical characteristics
obtained during the detention will significantly
advance the investigation and determine whether
or not the individual probably committed the
crime, and
(d) the physical characteristics sought cannot
otherwise practicably be obtained.
[R. 3:5A-4.]
20
C.
Our analysis in this matter begins from the vantage point of the trial
court’s foundational finding that defendant’s initial buccal swab was taken
through invalid consent -- a finding that the State does not dispute. Rather, the
State claims the results of that swab should be admitted on the basis of
inevitable discovery.
Whereas consent can serve as an exception to the warrant requirement,
the inevitable discovery doctrine can preserve -- if certain conditions are
satisfied -- the admissibility of evidence obtained without a warrant or a valid
exception to the warrant requirement. Specifically, the inevitable discovery
doctrine allows for the admission of evidence obtained through law
enforcement’s unconstitutional conduct if that evidence would have been
discovered in the absence of that unlawful conduct. See Nix v. Williams, 467
U.S. 431, 444-48 (1984). Inevitable discovery tempers the “social costs
associated with the exclusionary rule” by placing “police in the same position
that they would have been in had no police misconduct occurred.” Sugar II,
100 N.J. at 237.
The doctrine is rooted in the deterrent goal of the exclusionary rule. To
promote that objective, the exclusionary rule prevents the prosecution from
being in a better position than if the illegal conduct had not taken place; it is
21
not meant to punish the prosecution by putting it in a worse place. Id. at 236-
37. Considered a narrow exception to the exclusionary rule, our standard for
allowing evidence on the basis of inevitable discovery requires the State to
demonstrate, by clear and convincing evidence, id. at 240, that
(1) proper, normal and specific investigatory
procedures would have been pursued in order to
complete the investigation of the case; (2) under all of
the surrounding relevant circumstances the pursuit of
those procedures would have inevitably resulted in the
discovery of the evidence; and (3) the discovery of the
evidence through the use of such procedures would
have occurred wholly independently of the discovery of
such evidence by unlawful means.
[Id. at 238.]
Our standard for inevitable discovery does not require “the State [to]
demonstrate the exact circumstances of the evidence’s discovery.” State v.
Maltese, 222 N.J. 525, 552 (2015) (quoting State v. Sugar, 108 N.J. 151, 158
(1987) (Sugar III)). Rather, “[t]he State need only present facts or elements --
proving each such fact or element by a preponderance of the evidence -- that in
combination clearly and convincingly establish the ultimate fact and lead to
the conclusion that the evidence would be inevitably discovered.” Sugar III,
108 N.J. at 159. That said, the doctrine cannot be used to elide the warrant
requirement. Sugar II specifically warned against that. 100 N.J. at 240 n.3
(stating that when illegal conduct “consists simply of the failure to obtain a
22
search warrant, the exception should not be applied to circumvent the warrant
requirement . . . or to defeat the deterrent purposes espoused in the
exclusionary rule” (citing Nix, 467 U.S. 431; United States v. Griffin, 502
F.2d 959 (6th Cir. 1974); Commonwealth v. Benoit, 415 N.E.2d 818 (Mass.
1981))).
V.
With that general background in mind, we review first the trial court’s
use of the inevitable discovery doctrine to evaluate the State’s request to avoid
exclusion of the DNA results from defendant’s illegal buccal swab.
We agree with the trial court’s determination that inevitable discovery
was the correct prism through which to analyze the unique immutable
nontestimonial identification evidence that was obtained in this case. The
immutable nature of the evidence does not exempt it from the analytic
framework that controls for inevitable discovery. First, nothing about our
decisions in Sugar or any other related case suggests that the exclusionary rule
and its exceptions do not apply with equal force to evidence based on mutable
and immutable characteristics. Indeed, the Supreme Court’s decision in Davis
indicates that the exclusionary rule applies to both forms of evidence. 394
U.S. at 724 (discussing fingerprint evidence). And, no decision -- federal or
23
state -- has ruled that an inevitable discovery analysis may not be used with
respect to such evidence.
While no published New Jersey opinion has applied the inevitable
discovery doctrine to DNA evidence -- an immutable characteristic -- many
other states have engaged in such an analysis using the standard.
For example, in People v. Diaz, police obtained blood and hair samples
from the defendant -- who was accused of sexual assault -- without a search
warrant even after he refused to voluntarily provide the samples. 53 P.3d
1171, 1173 (Colo. 2002) (en banc). After determining that taking the samples
without a warrant was an illegal search and did not meet any exception to the
warrant requirement, the Supreme Court of Colorado undertook an inevitable
discovery analysis and held that the evidence was not admissible under the
doctrine because the prosecution failed to show “that an independent police
investigation was being conducted, or that the police would have inevitably
discovered the evidence through such an investigation despite their
misconduct.” Id. at 1175-76.
Similarly, in the Louisiana decision State v. Lee, police obtained a
subpoena duces tecum authorizing the taking of a buccal swab from the
defendant in the course of an investigation into the serial rape and killing of
multiple women. 976 So. 2d 109, 120-21 (La. 2008). The Supreme Court of
24
Louisiana determined that a subpoena duces tecum was insufficient to obtain
the sample legally and concluded that the buccal swab taken from the
defendant was an illegal warrantless search. Id. at 124-27. Nonetheless, the
court undertook an inevitable discovery analysis and determined that the swab
was admissible. Id. at 131.
The extensive police investigation in Lee demonstrated to the Supreme
Court of Louisiana that “the State satisfied its burden of showing by a
preponderance of the evidence there was a parallel and independent
investigation unrelated to the illegal search that would have inevitably and
legally yielded defendant’s DNA.” Ibid. The court described the multiple
leads that the investigating police department had, independent of the illegal
buccal swab, that would have inevitably led them to legally obtain a buccal
swab from the defendant. Id. at 128-31. The court pointed to facts that
showed that the police and other investigating agencies were diligently
pursuing multiple independent leads based on DNA found at the crime scenes,
a composite sketch which bore a striking resemblance to the defendant, a
description of a car seen at one of the crime scenes belonging to the
perpetrator, and multiple telephone tips. Ibid. The court explained that the
police were actively working with the other agencies such as crime lab experts
and a serial killer task force to solve the murders prior to receiving the results
25
of the defendant’s buccal swab. Ibid. For those reasons, the court’s evaluation
led it to conclude that the necessary proofs for inevitable discovery were
present. Id. at 131. The Supreme Court of Florida reached a similar result
with respect to a blood sample obtained from the person last seen with a
murder victim on the ground that, even if, as the defendant argued, the initial
sample had been illegally obtained through coerced consent, the independent
and preexisting investigation into the defendant would inevitably have led to a
sample being legally taken. Fitzpatrick v. State, 900 So. 2d 495, 514 (Fla.
2005).
Diaz and Lee are illustrative of the universe of cases that demonstrate
that courts have been using an inevitable discovery framework to consider
otherwise excluded immutable evidence as a matter of course. 6 We reject the
arguments advanced before us that DNA identification evidence is exempt
from an inevitable discovery analysis merely because it reveals uniquely
identifying information about an individual’s identity. The trial court and
6
See, e.g., United States v. Cherry, 759 F.2d 1196, 1207 (5th Cir. 1985)
(applying inevitable discovery to illegally obtained fingerprints because law
enforcement had uncovered, independent of the prior misconduct, sufficient
incriminating evidence against the defendant to give rise to probable cause for
his arrest, upon which the police would have eventually acted and thus
lawfully obtained the defendant’s fingerprints).
26
Appellate Division here correctly determined that the doctrine could be used to
evaluate DNA evidence.
As for the trial court’s application of the inevitable discovery standard to
defendant’s buccal swab, we agree with that also.
We have no difficulty affirming the trial court’s detailed findings, which
were based on the determination that the State failed to meet the first prong of
the Sugar II test by clear and convincing evidence. The State argues that
police either would have applied for a search warrant or a Rule 3:5A
investigative detention to obtain a buccal swab from defendant or would have
acted on its probable cause to arrest him. But the events of the actual
investigation suggest otherwise, as the trial court found. Once Bordamonte
and the other officers involved illegally obtained defendant’s buccal swab, the
investigation slowed to a virtual halt. The State concedes that the police had
zeroed in on defendant as a primary suspect and that they were fully aware that
DNA evidence would be the lynchpin of this case. Yet, Bordamonte testified
that he did not send defendant’s DNA to the lab for almost three months,
during which time officers received no new information or investigative leads.
Even after Bordamonte sent defendant’s DNA to the lab, investigators
failed to question defendant’s co-workers and roommates to ascertain his
whereabouts on the night of Katie’s murder or to corroborate Tina’s story.
27
They also never sought to obtain a search warrant for Katie’s husband’s home,
despite learning about his past criminal history and domestic violence against
Katie.
The trial court found particularly troubling for the State’s inevitable
discovery analysis Bordamonte’s failure to utilize legal processes to lawfully
obtain critical information. Although the police could have applied for the
investigative detention of defendant under Rule 3:5A or a search warrant, the
test under Sugar II is whether the police would have made the applications.
We will not disturb the trial court’s findings; in an appeal, we defer to findings
that are supported in the record and find roots in credibility assessments by the
trial court. State v. Locurto, 157 N.J. 463, 471-72 (1999). Here, Bordamonte
took no affirmative steps to secure legal process, making this case unlike State
v. Johnson, 120 N.J. 263, 290 (1990).7 See also State v. Premone, 348 N.J.
7
In Johnson, the Court held that the fruits of a search conducted on the basis
of illegal consent were admissible under the inevitable discovery doctrine. 120
N.J. at 290. There, a detective was preparing a search warrant for the
defendant’s bedroom at the same time as interrogating officers obtained an
illegal confession and consent from the defendant to search the bedroom. Id.
at 289. At that time, the detective had typed one-and-a-half pages of the
affidavit for the warrant and suspended his typing efforts only after the
defendant consented to the search. Ibid. On that record, the Court determined
that had the interrogating officers not illegally obtained the defendant’s
consent for a search, the detective would have completed the search warrant he
was in the process of preparing, that the application would have been granted,
and that the officers would have inevitably exercised the warrant and found the
evidence. Id. at 290.
28
Super. 505, 510, 515 (App. Div. 2002) (refusing to apply inevitable discovery
where the State argued it could have obtained the information through a search
warrant but had not taken steps in that direction).
Nor can the State prevail on its argument that it would have obtained a
buccal swab by relying on probable cause to arrest defendant for the assault on
Tina and allegedly other women, according to her. Again, the State did not
take any steps during the weeks it was waiting for the DNA testing to come
back from the lab to respond to Tina’s claims that defendant was dangerous.
Our standard of proof requires that the State carry its burden by clear and
convincing evidence in order for otherwise excluded evidence to be allowed in
through inevitable discovery. Sugar II, 100 N.J. at 240. We are unpersuaded
by the State’s arguments that it has met that high standard. 8 In sum, for the
reasons stated, there is no basis for disturbing the findings and conclusion of
the trial court, affirmed by the Appellate Division, that the State has not
8
The State relies on the Seventh Circuit case Sutton v. Pfister to support its
contention that N.J.S.A. 53:1-20.20 -- which requires arrestees for certain
offenses to provide DNA -- is sufficient to satisfy the inevitable discovery
doctrine in this case. 834 F.3d 816, 822 (7th Cir. 2016). We find the State’s
analogy unpersuasive as the Seventh Circuit follows the federal inevitable
discovery standard, which imposes a preponderance of the evidence burden on
the State. Id. at 821. The New Jersey standard, as set out in Sugar II, requires
the State to overcome a higher, clear and convincing burden of proof. 100 N.J.
at 240.
29
proven that the results of defendant’s buccal swab should be allowed in
through inevitable discovery.
VI.
A.
Finally, we turn to the State’s application under Rule 3:5A for an order
to take a new buccal swab. The trial court used an inevitable discovery
analysis to parse this request, commenting in so doing that the request was
coming very late in the investigatory proceedings -- approximately three and
one-half years after the discovery of Katie’s body. We observe that the State
did not argue for the application of any other test. And, as noted, the court
rejected the request essentially for the reasons already given in its previous
inevitable discovery ruling.
We are unconvinced that an inevitable discovery framework is correct in
these circumstances. The doctrine generally addresses completed searches that
cannot be replicated.
A key factor in the trial court’s decision here was its perception that the
State was seeking to obtain through legal means the same evidence that it had
earlier obtained unlawfully. That “look-back” logic would, for example, bar a
belated application for a search warrant that would allow the police to lawfully
recover a murder weapon it had discovered only through an initial illegal
30
search, and rightly so -- the exclusionary rule would have little meaning if it
could be sidestepped by using the fruits of unlawful conduct to secure legal
means through which to obtain the same evidence. The exclusionary rule
would be stripped of its deterrent value and reduced to a procedural speed
bump if such were the case.
But DNA is not an item like guns, drugs, or documents. DNA is
different in that immutable evidence lives on. Always. And the breadth of it
extends beyond the swab. A new DNA sample might provide the same
information as the original sample, but each sample is evidence in its own
right -- and the exclusionary rule bars the use of the same evidence that was
illegally obtained or “poisoned fruit” evidence that would not have been
discovered but for the initial, illegally obtained evidence. The State’s request
to compel a new sample must therefore be viewed for what it truly is: a
request to obtain a new buccal sample -- new evidence -- notwithstanding that
it will lead to the same uniquely identifying information that DNA provides.
That one’s identity does not change and is revealed through DNA does not
alter the fact that it is still a new sample.
An easy-to-imagine example illustrates this point. Defendant’s buccal
swab has been found inadmissible because it was illegally obtained. But there
are other ways to obtain a sample of defendant’s DNA. If, for example, he
31
were to be seen in a public place drinking from a paper cup, one could not
reasonably argue that the State would be precluded from retrieving the cup and
testing the DNA sample left on it by defendant. The same reasoning leads to
the logical conclusion that if law enforcement has a basis for obtaining a
lawful buccal sample, defendant cannot shield his DNA-revealed
nontestimonial identifying information because it once was obtained illegally.
There is simply no basis to distinguish a subsequent, lawful buccal swab from
the lawful collection of DNA from other sources. Both are new evidence.
Rule 3:5A provides law enforcement with an avenue for making a lawful
request for a new sample. A properly issued judicial order under Rule 3:5A-4
should be available to law enforcement, on the right terms. Other courts have
recognized as much. In the Diaz case from Colorado discussed above, the
Colorado Supreme Court took a similar step. 53 P.3d at 1175-78. Despite its
holding that the original blood and hair samples must be suppressed, the court
determined that under the Colorado Rules of Criminal Procedure, “an illegal
seizure of previous identification samples from the defendant by the police
does not foreclose the prosecution from obtaining identity evidence through
proper means after filing of the case.”9 Id. at 1177. The court reasoned that in
9
Under the Colorado Rules of Criminal Procedure, “[n]otwithstanding the
initiation of judicial proceedings, and subject to constitutional limitations,
upon request of the prosecuting attorney, the court may require the accused to
32
seeking the new nontestimonial identification evidence, “the prosecution d[id]
not rely on information or evidence the police obtained by means of an illegal
search and seizure.” Ibid.
So the important question to be decided is by what standard the State
may obtain a judicial order for the taking of a new buccal swab through a Rule
3:5A application after a prior buccal sample has been suppressed.
B.
Because the look-back approach that undergirds inevitable discovery
seems a poor fit for these circumstances -- where, again, the State seeks not the
admission of previously obtained evidence but rather new evidence that will
provide the same information as the suppressed evidence -- we fashion a test
better tailored for the unique nature of DNA evidence and a fair assessment of
whether a second buccal swab sample should be allowed.
The test we envision is derived in part from aspects of the independent
source doctrine. Generally, the independent source doctrine allows for the
introduction of evidence tainted by unlawful police conduct if the information
give any nontestimonial identification.” Colo. R. Crim. P. 16(II)(a)(1).
Nontestimonial identification “includes, but is not limited to, identification by
fingerprints, palm prints, footprints, measurements, blood specimens, urine
specimens, saliva samples, hair samples, specimens of material under
fingernails, or other reasonable physical or medical examination, handwriting
exemplars, voice samples, photographs, appearing in lineups, and trying on
articles of clothing.” Colo. R. Crim. P. 41.1(h)(2).
33
leading to discovery of the evidence is independent of the previous unlawful
conduct. See Nix, 467 U.S. at 443. Similar to the inevitable discovery
doctrine, the State bears the burden of proving that the independent source
doctrine should apply by clear and convincing evidence. State v. Holland, 176
N.J. 344, 362 (2003). Under New Jersey law, the State must show that
probable cause existed to conduct the challenged search
without the unlawfully obtained information. It must
make that showing by relying on factors wholly
independent from the knowledge, evidence, or other
information acquired as a result of the prior illegal
search. Second, the State must demonstrate . . . that the
police would have sought a warrant without the tainted
knowledge or evidence that they previously had
acquired or viewed. Third, regardless of the strength of
their proofs under the first and second prongs,
prosecutors must demonstrate by the same enhanced
standard that the initial impermissible search was not
the product of flagrant police misconduct.
[Id. at 360-61.]
Flagrancy is a high bar, requiring active disregard of proper procedure, or
overt attempts to undermine constitutional protections. See State v. Smith,
212 N.J. 365, 398 (2012) (distinguishing, in the context of a search warrant
affidavit, the omission of details that would undermine a finding of probable
cause from affirmative misstatements for purposes of a flagrant misconduct
analysis); see also State v. Chaney, 318 N.J. Super. 217, 226-27 (App. Div.
34
1999) (finding that the initial unlawful entry by police into a motel room
where they discovered contraband was not flagrant misconduct because the
“arrest warrants for a person with the same name as defendant, whose last
known address was the motel in which defendant was registered,” gave police
an objectively reasonable basis to believe they were authorized to enter the
room).
The test we now tailor for an application under Rule 3:5A for a new
buccal swab for DNA, when the previously obtained sample was declared
invalid and suppressed, is as follows. First, the State must demonstrate that
probable cause exists to conduct the new search. The court should look at the
showing advanced by the State to demonstrate probable cause. The evidence
may involve the same evidence that existed at the time of the illegal search.
We do not exclude its consideration. We permit but do not require new
evidence. Thus, Tina’s statements and her identification of defendant are not
off-limits. Second, the court should determine whether the State’s showing of
probable cause is untainted by the results of the prior search. Here, we mean
that the probable cause must be independent of the information obtained
through the results from the prior swab. 10 Third, to deter wrongdoing by the
10
The dissent appears to misapprehend our test. Post at ___ (slip op. at 13).
The salient point of Holland’s second prong is encompassed in the first and
second parts of our test.
35
police, we track the third prong of the independent source doctrine and require
the State to show by clear and convincing evidence that the initial
impermissible search was not the result of flagrant police misconduct.
Finally, because of the privacy interest involved, we consider the degree
of the intrusion posed by the State’s second search. A buccal swab is
minimally intrusive. King, 569 U.S. at 463. We note that we are considering
only a Rule 3:5A application which addresses minimally intrusive
identification procedures. See Rolle, 265 N.J. Super. at 486.
We do not attempt to apply this new test on this record. Rather, a
remand is in order to allow the State an opportunity to demonstrate whether it
can meet the standard announced. There may be additional witnesses and
other evidence that it seeks to put before a factfinder. We follow normal
procedures and send this back for the trial courts to handle. Because the
original judge made extensive credibility determinations about the witnesses
before the court, as well as about Tina, who was not before the court, we refer
this matter to the Assignment Judge for assignment.
VII.
We affirm in part and reverse in part the judgment of the Appellate
Division. We remand this matter to the Superior Court, Law Division for
further proceedings consistent with this opinion.
36
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion.
JUSTICE ALBIN filed a dissent.
37
State of New Jersey,
Plaintiff-Appellant,
v.
Rafael Camey,
Defendant-Respondent.
JUSTICE ALBIN, dissenting.
The fundamental rights afforded to a suspect by our Federal and State
Constitutions cannot be cut and trimmed to fit the investigatory objectives of
law enforcement. Even those under investigation for heinous offenses are
entitled to the full protection of the law.
The trial court determined that the police unlawfully secured a buccal
swab from defendant Rafael Camey by unconstitutionally detaining him and
having him sign a consent form in a language he did not understand and
without informing him of his right to refuse. The court found that the police
three times unlawfully detained Camey and three times unlawfully interrogated
him.
At the conclusion of a testimonial hearing, the court suppressed evidence
of the buccal swab and the DNA test results of that swab. The court held that
the inevitable discovery doctrine did not allow the taking of a second buccal
1
swab from Camey because the State had not presented credible evidence that
the investigating detective would have secured a warrant through lawful
means.
The Appellate Division concluded that the trial court -- based on its
detailed factual findings -- did not abuse its discretion in suppressing the
buccal swab and forbidding the taking of a second one.
Despite the trial court’s proper application of the inevitable discovery
doctrine -- the theory presented by the State at the suppression hearing -- the
majority reverses. The majority does so based on its newly created and
weakened version of the independent source doctrine set forth in State v.
Holland, 176 N.J. 344, 360-61 (2003) -- a new test crafted specifically for
immutable evidence, such as DNA evidence. The majority, however, retains
an important feature of the Holland test -- barring a second search if the initial
impermissible search was “the result of flagrant police misconduct.” Ante at
___ (slip op. at 36).
In light of that still operable flagrancy factor, the majority’s remand for
a new suppression hearing before a different judge is not justifiable. The trial
court’s factfindings were sustained by the Appellate Division and, by any
measure, detail police officers engaging in flagrant misconduct in violation of
Camey’s constitutional rights. On the record before us, given the deference
2
that must be accorded the trial court’s factfindings, see State v. Elders, 192
N.J. 224, 244 (2007), the State cannot prove by clear and convincing evidence
that the police officers did not engage in flagrant misconduct when they
unlawfully detained Camey, unlawfully interrogated him, and unlawfully
secured a buccal swab without his consent. Thus, even under the new test, the
taking of a second buccal sample is barred.
I dissent because there is no basis to reverse the trial court’s suppression
order and to remand before a different judge. I also dissent because the
majority’s retreat from the rigorous Holland test -- the test for determining
whether a “seizure of evidence was independent of, and untainted by, earlier
illegal police misconduct” -- diminishes the deterrent effect of the
exclusionary rule. See 176 N.J. at 360.
I.
A.
The trial court conducted a several day suppression hearing, taking
testimony and making credibility determinations. The trial court’s detailed
factual findings are the starting point of our discussion. Those detailed
findings about police misconduct remain valid despite the State’s change of
legal theory for the admission of a second buccal swab.
The trial court made the following findings.
3
While investigating the brutal murder of a woman named Katie,1 an
alleged sex worker, the Passaic Police Department secured “consent” to take
buccal swabs from at least a dozen homeless people who resided in the area of
the murder. Sergeant Roy Bordamonte was the lead investigator. Camey
became a “person of interest” during the investigation. The police “grabbed”
Camey in a bar, detained him without probable cause, and transported him to
headquarters, where he was not free to leave. According to the court, the
police engaged in “a blatantly illegal detention.”
At headquarters, Detective Alex Flores -- a Spanish-speaking officer --
read Camey his Miranda2 warnings, but made no “effort to have him
understand them.” When Camey said, “I don’t understand and I don’t know,”
the police did not address his lack of comprehension. Camey spoke virtually
no English, had only a second-grade education, and had no prior experience in
the criminal justice system. The court concluded that “the State ha[d] not
proven beyond a reasonable doubt that the defendant understood and
knowingly and voluntarily waived his Miranda rights,” and suppressed the
statement he made.
1
Katie is a fictitious name assigned to the victim by the majority.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
4
The police secured a buccal swab from the unlawfully detained Camey
for DNA testing -- not by consent but by unlawful means, according to the
court. Before taking the buccal swab, the police never translated the English-
worded consent form given to the Spanish-speaking Camey, never advised him
that he had a right to refuse to consent to the taking of the swab, and never told
him that the swab would be sent to a police lab for DNA testing as part of a
criminal investigation. While acknowledging “that the police were
investigating a terrible crime,” the court nevertheless concluded that the police
committed “egregious constitutional violations.” The police did not arrest
Camey, and he was released.
The police unlawfully detained Camey a second time -- without a
warrant or probable cause. Camey was “grabbed” while doing his laundry and
transported to headquarters for questioning. The trial court described this as a
“blatantly illegal detention.” According to the court, the police did not ensure
that Camey knowingly and voluntarily waived his Miranda rights, and
although the statement elicited was “exculpatory,” it nonetheless was not the
product of a “free will.” The court found the police conduct “offensive to
[Camey’s] due process” rights. Again, Camey was released.
The police unlawfully detained Camey a third time and transported him
to headquarters for another round of questioning. Once more, the police failed
5
to obtain from Camey a valid waiver of his Miranda rights. During a six-and-
one-half-hour interrogation, the police did not offer Camey food, although he
stated he was “dying of hunger,” and did not offer him a bathroom break.
During the interrogation, Sergeant Bordamonte verbally abused Camey, calling
him a “little freak,” a “motherf***ing liar,” and a “tutti-frutti.” Sergeant
Bordamonte threatened Camey that if he persisted in his denials that he would
be deprived of water. The court referred to this detention, as it did to the
previous two, as “a blatantly illegal detention” during which the police
extracted a “legally involuntary” statement.
The police conduct in this case was so shocking to the court that it
remarked:
I have rarely seen such blatant disregard for the most
basic of constitutional safeguards. The cited case law
talks about techniques that are offensive to due process.
The procedures here were beyond offensive. They not
only were unfair to the defendant, they were unfair to
the victim, since the evidence that was illegally
gathered has been suppressed.
B.
The trial court addressed the legal theories presented by the parties. The
State argued that, despite the constitutional violations, the police inevitably
would have sought a buccal swab from Camey that linked his DNA to the
victim. The court, relying on State v. Sugar, 100 N.J. 214, 238 (1985),
6
rejected the State’s inevitable discovery argument because it concluded that
Sergeant Bordamonte would not have secured a warrant by lawful means for
the buccal swab through ordinary investigative means. The court came to that
conclusion based on the entirety of the police conduct toward Camey -- the
failure to secure lawful consent for the buccal swab, and the three illegal
detentions and three illegal interrogations. The Appellate Division sustained
the trial court’s factfindings.
The trial court further came to that conclusion because of Bordamonte’s
infrequent recourse to the warrant procedure during his law enforcement
career. For example, in this case, Sergeant Bordamonte did not apply for a
warrant to search Camey’s home. Nor did Bordamonte apply for a warrant to
search the home of the victim’s husband, who allegedly had been having
“problems” with his wife and who had been arrested for an alleged act of
domestic violence against her. In addition, the husband had a previous arrest
for aggravated sexual assault and had been fired from his job for showing
naked pictures of himself to co-workers just one day before his wife was last
seen alive.
Having determined that the State failed to prove by clear and convincing
evidence that the police would have proceeded by lawful means to secure a
7
warrant for the taking of a buccal swab, the court suppressed the DNA results
from the first buccal swab and barred the taking of a second one.
C.
The State did not argue the applicability of the independent source
doctrine before the trial court or the Appellate Division. That doctrine became
the focus of attention for the first time during oral argument before our Court
and now has become the doctrinal basis for the majority’s new standard as it
applies to immutable identification evidence. That new standard is a retreat
from the independent source doctrine as articulated in Holland, 176 N.J. at
360-61.
In Holland, this Court determined that when the State procures evidence
by unconstitutional means, the State bears the burden of demonstrating that a
later “seizure of evidence was independent of, and untainted by, earlier illegal
police conduct.” 176 N.J. at 360. Under Holland, to establish an independent
source for the procuring of evidence untainted by the initial unconstitutional
seizure of evidence, the State must satisfy three prongs. Id. at 360-61. First,
the State must demonstrate that it relied on “factors wholly independent from
the knowledge, evidence, or other information acquired as a result of the prior
illegal search” to prove “that probable cause existed to conduct the challenged
search.” Ibid. Second, it must establish, “by clear and convincing evidence,
8
that the police would have sought a warrant without the tainted knowledge or
evidence that they previously had acquired or viewed.” Id. at 361. Third, it
must clearly and convincingly show that “regardless of the strength of their
proofs under the first and second prongs, . . . that the initial impermissible
search was not the product of flagrant police misconduct.” Ibid.When the initial impermissible search is the product of flagrant
misconduct, the independent source doctrine cannot be invoked to justify a
subsequent search relating to the initial search. See ibid. In other
circumstances, the focus of the Holland test is whether the subsequent search
is actually tainted by the “earlier illegal police conduct.” See id. at 360.
Understanding the potential for the independent source doctrine to undermine
the deterrent effect of the exclusionary rule, our Court cautioned:
Only by rigorously applying the rule’s three prongs can
we be satisfied that an error of the State’s making does
not subvert the warrant requirement under Article I,
paragraph 7 [of the New Jersey Constitution].
....
We stress that courts must apply scrupulously each part
of the test, and that the government’s failure to satisfy
any one prong of the standard will result in suppression
of the challenged evidence.
[Id. at 362-63.]
9
“The jurisdiction of appellate courts rightly is bounded by the proofs and
objections critically explored on the record before the trial court by the parties
themselves.” State v. Robinson, 200 N.J. 1, 19 (2009). The majority has
declined to limit itself to the arguments advanced before the trial court and
Appellate Division, and in the State’s brief for leave to appeal to this Court --
the applicability of the inevitable discovery doctrine. Having decided to look
for another doctrinal basis to review a subsequent search for immutable
evidence, the majority does not adhere to our well-established jurisprudence
on the independent source doctrine.
Here is how the majority has reconfigured the independent source
doctrine for immutable evidence. Under the majority’s new standard, after an
unconstitutional seizure of immutable evidence, (1) the “State must
demonstrate that probable cause exists to conduct the new search” and that
showing may be based on “the same evidence that existed at the time of the
illegal search”; (2) “the court should determine whether the State’s showing of
probable cause is untainted by the results of the prior search”; and (3) “the
State must show by clear and convincing evidence that the initial
impermissible search was not the result of flagrant police misconduct.” Ante
at ___ (slip op. at 35-36).
10
The majority’s test, like the traditional Holland test, bars a subsequent
search when the initial impermissible search was the product of flagrant police
misconduct. On that basis alone, this Court should affirm the Appellate
Division, which determined that the trial court’s factfindings were supported
by sufficient credible evidence in the record. The trial court never used the
term “flagrant police misconduct” because the independent source doctrine had
not been invoked by the State. But the court’s detailed factfindings referred to
what can only be described as flagrant misconduct. The taking of the buccal
swab occurred after the police “grabbed” Camey from a bar without a warrant
or probable cause and subjected him to a “blatantly illegal detention.” The
police then interrogated Camey while running roughshod over his Miranda
rights -- questioning him even though he did not comprehend his rights. On
that same day that the police unlawfully detained Camey and violated his
Miranda rights, the police secured Camey’s “consent” to a buccal swab by
giving him an English-worded consent form that he could not understand and
by not advising him that he had a right to refuse to consent to the s earch.
Based on the totality of the circumstances, the trial court concluded that the
police had engaged in “egregious constitutional violations.”
It can hardly be disputed that the trial court, in functionally equivalent
language, found that the initial taking of the buccal swab was “the result of
11
flagrant police misconduct.” See ante at ___ (slip op. at 36). The majority
states that a finding of flagrancy “requir[es] active disregard of proper
procedure, or overt attempts to undermine constitutional protections.” Ante at
___ (slip op. at 34). The record is replete with factfindings that satisfy the
majority’s definition of flagrancy. Based on the deferential standard accorded
to a trial court’s factfindings, Elders, 192 N.J. at 244, a finding that the police
engaged in flagrant misconduct is inescapable.
Because flagrancy is determinative even under the majority’s test, a
remand is pointless. No further witness-credibility factfindings are required on
that issue and therefore a remand to a different trial judge cannot be justified.
The trial court thoughtfully and deliberately considered and weighed the
testimony and understood the consequences of suppressing evidence that might
make it difficult for the State to prosecute Camey for a heinous crime.
Suppressing evidence -- evidence secured illegally -- will not receive public
adulation, even when our case law demands the result. Despite that reality, the
court fulfilled a core judicial function by adhering to the dictates of the
Constitution and upholding fundamental rights. The court’s well-reasoned
decision to suppress the buccal swab evidence and bar the taking of a second
buccal swab should be affirmed.
12
II.
Last, the majority needlessly abandons Holland’s rigorous independent
source test in cases of unconstitutional seizure of immutable evidence and
therefore diminishes the deterrent effect of the exclusionary rule when the
police violate a person’s constitutional rights. The majority has discarded
Holland’s second prong that requires the State to establish that “the police
would have sought a warrant without the tainted knowledge or evidence that
they previously had acquired or viewed.” 176 N.J. at 361. The majority has
replaced that meaningful prong with one that places little burden on the State
for a previous unconstitutional search or seizure.
The majority requires that the State “demonstrate that probable cause
exists to conduct the new search,” a showing that the majority permits to be
based on “the same evidence that existed at the time of the illegal search.”
Ante at ___ (slip op. at 35). The police, however, must always establish
probable cause to conduct a search, whether it is the first or the last one.
Additionally, allowing the State to rely on the same evidence to establish
probable cause merely permits the police a do-over after a failure to adhere to
constitutional dictates. Police officers will have a lesser incentive to get a
warrant for the taking of a buccal swab when suppression leads to the police
using the same probable-cause evidence to secure a proper search warrant.
13
Defense attorneys will soon see the futility of filing suppression motions,
leading to police practices that are indifferent to the Constitution’s warrant
requirement. The majority articulates no good reason for jettisoning Holland’s
insistence that the State prove that “the police would have sought a warrant
without the tainted knowledge” from the evidence acquired from an
unconstitutional search. See Holland, 176 N.J. at 361.
III.
For the reasons expressed, I respectfully dissent.
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