STATE OF NEW JERSEY VS. AMANDA S. GUSRANG (14-12-1067, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1640-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMANDA S. GUSRANG,
Defendant-Appellant.
Argued April 18, 2018 – Decided July 12, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 14-12-1067.
Mark J. Molz argued the cause for appellant.
Alexis R. Agre, Assistant Prosecutor, argued
the cause for respondent (Scott A. Coffina,
Burlington County Prosecutor, attorney;
Alexis R. Agre, of counsel and on the brief).
PER CURIAM
A Law Division judge denied defendant Amanda Gusrang's motion
to suppress the results of a warrantless blood sample taken to
determine her blood alcohol content following a fatal motor vehicle
accident in which she was the responsible driver. In a written
opinion, the judge found that exigent circumstances justified the
warrantless search, thus making the results admissible. After the
motion was denied, defendant entered a guilty plea to the single
count of the indictment, which charged her with second-degree
vehicular homicide, N.J.S.A. 2C:11-5(a). In accord with the plea
agreement, the judge sentenced defendant in the third-degree range
to three years in state prison, subject to a three-year period of
parole ineligibility, restitution, and appropriate fines and
penalties. Defendant now appeals the denial of the motion to
suppress. We affirm.
We glean the facts from the testimony presented during the
suppression hearing. At approximately 8:29 p.m. on December 6,
2013, during a rainy night, Pemberton Township Police Officer
Thomas Lucas was on routine patrol, following a patrol car driven
by Officer John Glass. The officers immediately pulled over upon
seeing the headlights of stopped cars. The roadway was bordered
by farm fields, which were very muddy from the rain. A silver
Toyota Prius had rolled on the driver's side in a field next to
the roadway. As they made their way to the car, the mud came up
to the officers' shins. The only person in the vehicle was the
driver, John Anderson, who lay still and face-down in the mud.
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Fearing that Anderson would drown, Lucas broke the rear
passenger window and lifted Glass into the car so he could attempt
to move the victim. With the help of a bystander, Lucas was able
to push the roof of the vehicle up enough to allow Glass to get
Anderson's head out of the mud. However, they were unable to move
Anderson out of the Prius, as one of his arms was pinned
underneath. The accident location was miles away from the nearest
hospital.
While the officers were attempting to extricate Anderson, a
bystander cried out that there was a second vehicle down the road.
Lucas left Glass with Anderson and drove to the other car, a
Mercury Sable approximately 100 yards from the Prius. Defendant
was standing outside the vehicle and did not appear to be seriously
injured, although she had some blood on her t-shirt. She told
Lucas that she was on the way home from work as a bartender at a
nearby establishment. Lucas noticed the smell of alcohol in his
vehicle once defendant was seated in the back of his patrol car,
as he drove back to assist Glass.
Because of the muddy conditions, efforts to remove Anderson
from the mud required several rescue and first responder teams,
an ambulance, paramedics, the Pemberton Township Fire Department,
and the Fort Dix Fire Department. Seven out of the eight on-duty
Pemberton Township officers responded to the scene of the accident,
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in addition to two off-duty officers and one Pemberton Borough
Officer. Lucas and others described the scene as "chaotic."
Lucas told Sergeant Michael Giebel that defendant smelled of
alcohol. Defendant was still in the back seat of Lucas's patrol
car when Officer John Hall moved it to make room for a fire truck.
When Hall got out of the car, Giebel told him to take defendant
to the ambulance and escort her to the hospital for a blood draw.
The recommendation actually came from Officer Steven Price, the
traffic safety officer Giebel called for assistance in
investigating the collision. Price gave the instruction upon
being informed that defendant smelled of alcohol.
Hall and defendant arrived at the hospital at 9:17 p.m.
Another officer brought a blood draw kit retrieved from the
Pemberton Township police station. Defendant was carried into an
exam room on a stretcher. Hall told Erin Mosely, the registered
nurse who was treating defendant, that defendant was in custody
for a DUI, and that he would ask defendant for consent to do a
blood draw. According to Hall, defendant "began saying . . .
she's under arrest for DUI because she only had two shots . . .
something to the effect that she's only had two shots. She said
that numerous times."
Hall read the consent form to defendant as she was being
treated for an injury to her left arm. Defendant then "said go
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ahead, something to the effect of go ahead . . . and pushed her
[right] arm out." When Mosely finished with the hospital's
bloodwork, she drew the samples for Hall, who placed them into the
blood kit. As soon as Mosely was available, he had her complete
the blood extraction form.
Hall testified that he did not obtain a search warrant because
he was concerned about the length of time it would take to obtain
one, and the possibility that the alcohol in defendant's blood
would dissipate in the interim. Hall did not get defendant's
signature on the consent form once she agreed to the blood draw
because there were at least two or three people attending to her,
and he did not want to interfere with her medical care.
When Hall reentered defendant's room to have her the sign the
consent form, she said "I'm not signing shit." Hall then read
defendant her Miranda1 rights before asking her the questions on
the Driving Under the Influence Questionnaire. Defendant told
Hall that she had only consumed two shots of Jameson whiskey at
her workplace between 7:00 p.m. and 7:30 p.m., and that she had
eaten dinner at 5:30 p.m. Defendant's blood alcohol reading,
approximately one hour after the incident, was .22 percent.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Hall contacted Price regarding defendant's refusal to sign
the consent form. He then called the Burlington County
Prosecutor's Office, and was instructed to obtain a taped statement
from Mosely. This was done, but the tape was lost. Defendant was
released to her grandfather at around 11:18 p.m. that night.
For the judge, the key fact was the nature of the accident.
Because of the precarious way Anderson was trapped in his vehicle,
officers from multiple agencies were needed in the attempt to get
him out of the mud. The investigation required the attention of
all the Pemberton Township police officers, leaving only one on-
duty officer available for patrol. The investigation lasted over
four hours, and the roadway remained closed until almost 1:00 a.m.
Defendant raises the following points on appeal:
POINT I
THERE WERE NO EXIGENT CIRCUMSTANCES TO JUSTIFY
A WARRANTLESS SEARCH
POINT IA
MISSOURI V. MCNEELY
POINT IB
NEW JERSEY APPELLATE DIVISION ANALYSIS OF
MCNEELY REQUIRES THE WARRANTLESS BLOOD DRAW
TO BE SUPPRESSED
POINT II
APPELLATE DIVISION DECISION STATE V. DONNA
JONES IS INAPPLICABLE
POINT III
NO EVIDENCE OF KNOWING AND VOLUNTARY CONSENT
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I.
On appeal, we defer to the trial court's findings of fact
where supported by "sufficient evidence in the record." State v.
Hubbard, 222 N.J. 249, 262 (2015) (citations omitted). Findings
of fact are set aside only when clearly mistaken. Id. at 262.
Our review of the trial court's legal conclusions, however, is
always plenary. State v. Hathaway, 222 N.J. 453, 467 (2015)
(citation omitted).
The United States Constitution and the New Jersey State
Constitution both guarantee the right to be free from unreasonable
searches and seizures. U.S. Const. amend. IV; N.J. Const. art.
I, ¶ 7. The seizure of blood from a suspect is considered a search
under both constitutions. Schmerber v. California, 384 U.S. 757
(1966); State v. Ravotto, 169 N.J. 227 (2001). Consistent with
the above constitutional provisions, "police officers must obtain
a warrant from a neutral judicial officer before searching a
person's property, unless the search falls within one of the
recognized exceptions to the warrant requirement." State v.
Diloreto, 180 N.J. 264, 275 (2004) (citation omitted). One such
exception is the presence of exigent circumstances. State v.
Johnson, 193 N.J. 528 (2008).
In Schmerber v. California, the Supreme Court upheld a DWI
suspect's warrantless blood test where the officer "might
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reasonably have believed that he was confronted with an emergency,
in which the delay necessary to obtain a warrant, under the
circumstances, threatened 'the destruction of evidence.'" 384
U.S. at 770 (quoting Preston v. United States, 376 U.S. 364, 367
(1964)). The Supreme Court later clarified that "in drunk-driving
investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a warrant."
Missouri v. McNeely, 569 U.S. 141, 165 (2013).
Accordingly, the New Jersey Supreme Court has held that
"potential dissipation of the evidence may be given substantial
weight as a factor to be considered in the totality of the
circumstances." State v. Adkins, 221 N.J. 300, 303 (2015). In
making that decision, the Court noted:
We are constrained to adhere to the McNeely
Court's totality-of-the-circumstances
approach notwithstanding that our case law,
like that of many sister states, had provided
de facto, if not de jure, support for law
enforcement to believe that alcohol
dissipation in and of itself supported a
finding of exigency for a warrantless search
of bodily fluids in suspected driving-under-
the-influence cases.
[Ibid.]
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"Our courts are tasked with focusing 'on the objective
exigency of the circumstances' that officers face in each specific,
unique instance." State v. Zalcberg, 232 N.J. 335, 352 (2018)
(quoting Adkins, 221 N.J. at 317).
Defendant argues that the judge erred in finding exigent
circumstances to justify a warrantless search, claiming that State
v. Jones, 441 N.J. Super. 317 (App. Div. 2015) (hereafter Jones
II), aff'g State v. Jones, 437 N.J. Super. 68 (App. Div. 2014)
(hereafter Jones I) is inapplicable.
Jones I stated:
The fact that the Supreme Court rejected a per
se exigency rule in McNeely should not be
misinterpreted as a retreat from its
recognition that the dissipation of alcohol
in the blood merits considerable weight in a
totality of the circumstances analysis. It
must be emphasized that both the Missouri
Supreme Court and the United States Supreme
Court described the facts in McNeely as
"'unquestionably a routine DWI case' in which
no factors other than the natural dissipation
of blood-alcohol suggested that there was
an emergency." McNeely, [569] U.S. at
[147] . . . .
[Jones I, 437 N.J. Super. at 78.]
We went on to distinguish McNeely from the circumstances in Jones
I: "[t]here was no accident; no injured defendant who needed to
be extricated from [their] heavily damaged car; no other injured
person who had to be transported to the hospital; no concentration
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of disabled cars and emergency vehicles at a busy intersection;
and no police investigation beyond the DWI arrest." Ibid.
As the Court further clarified in Zalcberg, in each case
there must be a close analysis of the specific circumstances,
including the obligations and practical burdens the individual
accident imposes on the responding police officers. 232 N.J. at
351. As in Zalcberg, here the officers' failure to apply for a
warrant was attributable to, as the judge described it, the
"complexity of the situation and the reasonable allocation of
limited police resources -- not a lack of emergent circumstances,
as argued by defendant."
That the officer who obtained the blood sample without first
obtaining a warrant did so after waiting in the hospital for some
time for defendant to be treated does not support defendant's
position. Applying the Zalcberg analysis to the situation, the
legitimate exigency is not undermined by this delay.
Defendant needed treatment, a reasonable first priority. She
herself contributed to the difficulties Hall faced. Instructed
to obtain a blood draw, he obtained defendant's initial consent,
and after he waited for her treatment to be completed, was
confronted with her change of heart. That night, the department
and related agencies focused on the ultimately fruitless effort
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to remove the victim before he expired, and then to remove his
body, investigate, and clear the roadway. Pemberton Township is
a small department, and the incident left a largely rural area
short on police coverage for hours. Examining the totality of the
circumstances, the dissipation of alcohol in the blood created an
exigency which legally justified the warrantless search.
The trial judge correctly focused on the "objective exigency"
of the circumstances that the officers faced here. Zalcberg, 232
N.J. at 352; Adkins, 221 N.J. at 317. He concluded that "[t]here
is no question that the responding Pemberton Township officers
were confronted with an emergency situation," explaining the many
compounding variables. His factual findings were based upon
"sufficient credible evidence in the record" and are entitled to
deference. Elders, 192 N.J. at 243; Johnson, 42 N.J. 146, 161
(1964).
II.
Defendant contends that consent cannot operate as an
exception to the warrant requirement in this case. We do not
reach that issue, as we find that the exigencies presented by this
incident on that particular night in this particular locale created
an objective exigency that rendered correct the trial judge's
decision to deny the motion to suppress.
Affirmed.
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