State of New Jersey v. Timothy Adkins

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5748-12T4

A-5749-12T4

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

Plaintiff-Appellant,

December 20, 2013

v.

APPELLATE DIVISION

TIMOTHY ADKINS,

Defendant-Respondent.

___________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY ADKINS,

Defendant-Appellant.

______________________________________________

Argued November 13, 2013 – Decided December 20, 2013

Before Judges Reisner, Alvarez and Ostrer.

On appeal from the Superior Court of New

Jersey, Law Division, Gloucester County,

Indictment No. 11-08-0734.

Ronald Susswein, Assistant Attorney General,

and Jenny M. Hsu, Deputy Attorney General,

argued the cause for appellant (A-5748-

12)/respondent (A-5749-12) (John J. Hoffman,

Acting Attorney General, attorney; Mr.

Susswein and Ms. Hsu, of counsel and on the

brief).

Richard F. Klineburger, III, argued the

cause for respondent (A-5748-12)/appellant

(A-5749-12) (Klineburger and Nussey,

attorneys; Mr. Klineburger, on the brief).

The opinion of the court was delivered by

REISNER, P.J.A.D.

By leave granted, the State appeals from paragraph one of a

June 7, 2013 order, suppressing the results of a warrantless

blood test, and defendant appeals from paragraph two of the same

order, denying his speedy trial motion. Because we conclude

that application of the exclusionary rule is not required in the

unusual circumstances of this case, we reverse on the State's

appeal. We affirm on defendant's appeal.1

I

The suppression issue is novel and arises from the

following scenario. On December 16, 2010, defendant was

involved in a one-car accident in which his vehicle struck a

utility pole and his two passengers were injured. After

defendant failed the roadside sobriety tests, the West Deptford

police arrested him at about 2:30 a.m., on suspicion of driving

while intoxicated (DWI). They transported defendant to police

1

These back-to-back appeals have been consolidated for purposes

of this opinion.

2 A-5748-12T4

headquarters, where they read him his Miranda2 rights and he

invoked his right to counsel. The police later transported

defendant to a local hospital. At 4:16 a.m., hospital personnel

drew a blood sample at the request of the police.3 The

requesting police officer, defendant, and a hospital nurse each

signed a Certificate of Request to Withdraw a Specimen, although

defendant signed the form two minutes after the blood was drawn.

See N.J.S.A. 2A:62A-11.4

2

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966).

3

The record does not indicate the time at which the police took

defendant to the hospital. Hence, it is not clear whether an

approximately two-hour hiatus, between the time of defendant's

arrest and the time the blood was drawn, was attributable to

delay in taking him to the hospital or delay experienced at the

hospital.

4

N.J.S.A. 2A:62A-11 is part of a statute that grants civil and

criminal immunity to medical personnel who draw blood samples at

the request of a law enforcement officer. N.J.S.A. 2A:62A-

10(a), -10(b). The statute further provides, in pertinent part:

"Any person taking a specimen pursuant to [this statute] shall,

upon request, furnish to any law enforcement agency a

certificate stating that the specimen was taken pursuant to

. . . this act and in a medically acceptable manner." N.J.S.A.

2A:62A-11. After reviewing the certificate in this case, we

conclude that it was not intended to establish a suspect's

consent to a warrantless search, but rather was intended to

satisfy the immunity statute and establish the chain of custody

of the blood sample. The State has waived any claim of Fourth-

Amendment consent, and for purposes of this opinion it is

irrelevant that defendant signed the form after the blood was

drawn.

3 A-5748-12T4

At the time of the accident in 2010, New Jersey law

permitted the police to obtain a blood sample without first

obtaining a warrant, so long as they had probable cause to

believe that the driver was intoxicated.5 That principle,

derived from Schmerber v. California, 384 U.S. 757, 86 S. Ct.

1826, 16 L. Ed. 2d 908 (1966), was based on the presumed

exigency created by the dissipation of alcohol levels in the

bloodstream, and was clearly stated in opinions of our Supreme

Court. For example, in State v. Dyal, 97 N.J. 229 (1984), the

Court observed: "A drunken driver arrested by police with

probable cause to believe he is intoxicated has no federal

constitutional right to prevent the involuntary taking of a

blood sample. Of course, the sample should be taken in a

medically acceptable manner at a hospital or other suitable

health care facility." Id. at 238 (citing Schmerber, supra, 384

U.S. at 771-72, 86 S. Ct. at 1836, 16 L. Ed. 2d at 920). The

issue in Dyal was whether the police could obtain the results of

hospital blood tests drawn for purposes of medical treatment;

however, part of the Court's reasoning was that the police had

5

Before the trial court, as on this appeal, defendant did not

contest that the police had probable cause to seek a blood test.

Because he was the driver in a one-car accident and failed the

roadside sobriety tests, probable cause would appear self-

evident.

4 A-5748-12T4

the right to obtain a blood sample from the driver. Dyal,

supra, 97 N.J. at 231, 238-39.

Several subsequent Appellate Division decisions likewise

read Schmerber as holding that a warrant was not required. See,

e.g., State v. Burns, 159 N.J. Super. 539, 544 (App. Div. 1978)

("[C]onsent is not required to the taking of a blood sample, but

the taking of such sample must be done in a medically acceptable

manner and environment and without force or violence or the

threat of same."); State v. Woomer, 196 N.J. Super. 583, 586

(App. Div. 1984) ("[A] blood sample may be taken involuntarily

[from a suspected drunk driver] and no consent is required.").

In State v. Ravotto, 169 N.J. 227, 231-33 (2001), the Court

held that the police used excessive force in obtaining a blood

sample from a drunk driving suspect who was terrified of

needles. However, the Court reaffirmed that the police did not

need a warrant to obtain the blood test:

Our holding is not to be understood as

suggesting that the police had to acquire a

warrant before obtaining a blood sample from

defendant or that they acted in an

unreasonable manner in seeking treatment for

him at the hospital. Because defendant's

car was found overturned and his behavior

demonstrated obvious signs of intoxication,

probable cause existed for the police to

seek evidence of defendant's blood alcohol

content level. Moreover, consistent with

Schmerber and our analogous case law, the

dissipating nature of the alcohol content in

defendant's blood presented an exigency that

5 A-5748-12T4

required prompt action by the police. Under

those conditions, a warrantless search was

justified.

[Id. at 250 (citation omitted).]

These rulings were also reflected in Guidelines issued by

the Attorney General to county and municipal prosecutors.6 In

pertinent part, the Guidelines advised that "[a] defendant has

no right to refuse to allow blood to be drawn as long as the

police or law enforcement officer has probable cause to believe

that the blood sample will contain evidence of alcohol and/or

drugs." Attorney General Guideline[s]: Prosecution of DWI &

Refusal Violations, at 9 (Jan. 24, 2005); N.J.S.A. 39:4-50.2a

(requiring the Attorney General to promulgate guidelines).7

Consequently, when the police obtained the warrantless blood

sample from Adkins, they acted pursuant to well-established

legal precedent in this State.

6

In this context, we recall our Court's recent admonition in

State v. Dabas, 215 N.J. 114, 136 (2013), that "the prosecutor's

office is not at liberty to disregard a pronouncement of this

Court, even if that pronouncement is properly characterized as

dictum." Likewise, "[a]ppellate and trial courts consider

themselves bound by this Court's pronouncements, whether

classified as dicta or not." Id. at 136-37.

7

In citing the Guidelines, we do not suggest that the Attorney

General can influence our jurisprudence on the exclusionary rule

by promulgating guidelines and then asserting that the police

reasonably relied on them. We cite the Guidelines only because

they rely on clear Supreme Court precedent.

6 A-5748-12T4

However, years later, the United States Supreme Court

clarified Schmerber -- and dramatically changed the legal

landscape in New Jersey and many other states -- by holding that

there was no per se rule of exigency in drunk driving cases, and

that the need to obtain a search warrant before taking a blood

sample was to be determined on a case by case basis. Missouri

v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1563, 185 L. Ed.

2d 696, 709 (2013); see id. at ___ n.2, 133 S. Ct. at 1558 n.2,

185 L. Ed. 2d at 704 n.2. Further, under well-settled federal

precedent, the Supreme Court's construction of the Fourth

Amendment must be given pipeline retroactivity. Griffith v.

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

649, 661 (1987) ("We therefore hold that a new rule for the

conduct of criminal prosecutions is to be applied retroactively

to all cases, state or federal, pending on direct review or not

yet final, with no exception for cases in which the new rule

constitutes a 'clear break' with the past.").

However, when applied in the federal courts, McNeely would

not result in suppression of the blood evidence obtained here,

because the United States Supreme Court will not apply the

exclusionary rule as a remedy where the police conducted a

search in good faith reliance on binding legal precedent in the

jurisdiction where the search occurred. See Davis v. United

7 A-5748-12T4

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

285, 302 (2011).8

In Davis, the Court clarified that the retroactivity rule

announced in Griffith did not necessarily require application of

the exclusionary rule as a remedy where the Court announced a

new search and seizure rule. Davis, supra, ___ U.S. at ___, 131

S. Ct. at 2431, 180 L. Ed. 2d at 298-99. "[T]he retroactive

application of a new rule of substantive Fourth Amendment law

raises the question whether a suppression remedy applies; it

does not answer that question." Id. at ___, 131 S. Ct. at 2431,

180 L. Ed. 2d at 298.

Davis addressed searches conducted prior to Arizona v.

Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), a

case holding that police could not automatically search the

passenger compartment of a vehicle whenever an occupant was

arrested. Davis, supra, ___ U.S. at ___, 131 S. Ct. at 2424-25,

180 L. Ed. 2d at 291-92. Recognizing that its prior holding in

New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d

8

In McNeely, the Supreme Court of Missouri had upheld the

suppression of the blood evidence, but the suppression remedy

was not addressed in the United States Supreme Court's opinion.

See McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1557, 185 L.

Ed. 2d at 703. Further, the Missouri Supreme Court had never

construed Schmerber as allowing warrantless blood tests without

a case by case showing of exigent circumstances. State v.

McNeely, 358 S.W.3d 65, 72-74 (Mo. 2012). Therefore, Davis

would not apply to the McNeely search.

8 A-5748-12T4

768 (1981), had been widely understood as permitting such

searches, the Court concluded that the exclusionary rule was not

an appropriate remedy for pre-Gant searches. Davis, supra, ___

U.S. at ___, 131 S. Ct. at 2428-29, 180 L. Ed. 2d at 295-97.

The Court reasoned that, where the police acted in reliance on

established legal precedent, suppressing evidence would not

serve the purpose of the exclusionary rule to deter lawless

police conduct:

The question in this case is whether to

apply the exclusionary rule when the police

conduct a search in objectively reasonable

reliance on binding judicial precedent. .

. . The search incident to Davis's arrest

in this case followed the Eleventh Circuit's

[United States v.] Gonzalez[, 71 F.3d 819

(11th Cir. 1996),] precedent to the letter.

Although the search turned out to be

unconstitutional under Gant, all agree that

the officers' conduct was in strict

compliance with then-binding Circuit law and

was not culpable in any way.

Under our exclusionary-rule precedents, this

acknowledged absence of police culpability

dooms Davis's claim. Police practices

trigger the harsh sanction of exclusion only

when they are deliberate enough to yield

"meaningfu[l]" deterrence, and culpable

enough to be "worth the price paid by the

justice system." The conduct of the

officers here was neither of these things.

The officers who conducted the search did

not violate Davis's Fourth Amendment rights

deliberately, recklessly, or with gross

negligence. Nor does this case involve any

"recurring or systemic negligence" on the

part of law enforcement. The police acted

in strict compliance with binding precedent,

9 A-5748-12T4

and their behavior was not wrongful. Unless

the exclusionary rule is to become a strict-

liability regime, it can have no application

in this case.

. . . .

About all that exclusion would deter in this

case is conscientious police work.

Responsible law-enforcement officers will

take care to learn "what is required of

them" under Fourth Amendment precedent and

will conform their conduct to these rules.

But by the same token, when binding

appellate precedent specifically authorizes

a particular police practice, well-trained

officers will and should use that tool to

fulfill their crime-detection and public-

safety responsibilities. An officer who

conducts a search in reliance on binding

appellate precedent does no more than

"'ac[t] as a reasonable officer would and

should act'" under the circumstances. The

deterrent effect of exclusion in such a case

can only be to discourage the officer from

"'do[ing] his duty.'"

That is not the kind of deterrence the

exclusionary rule seeks to foster. . . .

Evidence obtained during a search conducted

in reasonable reliance on binding precedent

is not subject to the exclusionary rule.

[Ibid. (citations omitted).]

In New Jersey, new State constitutional search and seizure

rules ordinarily are applied prospectively. "In cases where the

new rule is an exclusionary rule, meant solely to deter illegal

police conduct, the new rule is virtually never given

retroactive effect. The reason is that the deterrent purposes

of such a rule would not be advanced by applying it to past

10 A-5748-12T4

misconduct." State v. Burstein, 85 N.J. 394, 406 (1981); see

also State v. Earls, 214 N.J. 564, 590 (2013); State v. Purnell,

161 N.J. 44, 54 (1999); State v. Knight, 145 N.J. 233, 251

(1996); State v. Young, 87 N.J. 132, 140-41 (1981); State v.

McCann, 391 N.J. Super. 542, 555 (App. Div. 2007); State v.

Skidmore, 253 N.J. Super. 227, 236 (App. Div. 1992). Had

McNeely been decided by the New Jersey Supreme Court in

construing our State Constitution, it would not have been

applied retroactively -- thus reaching the same result as in the

federal system but by a different route.

The Court's recent decision in State v. Earls does not

compel a different result here. In Earls, the Court gave the

defendant the benefit of its ruling that, under the New Jersey

Constitution, "police must obtain a warrant based on a showing

of probable cause, or qualify for an exception to the warrant

requirement, to obtain tracking information through the use of a

cell phone." Earls, supra, 214 N.J. at 588. The Court

recognized that the holding was novel and law enforcement

officers could not have anticipated it. Id. at 589. The Court

also acknowledged that "deterrence is rarely a basis to apply a

new rule retroactively," id. at 590 (citing Knight, supra), and

that retroactive application would substantially disrupt the

administration of justice. Id. at 591. In that context, the

11 A-5748-12T4

Court applied the rule "to defendant Earls and future cases

only."9 Ibid.; see also State v. Henderson, 208 N.J. 208, 302

(2011). Unlike Earls, in this case defendant's appeal did not

result in a new interpretation of our State Constitution, which

might justify giving him the benefit of the new rule; rather, he

simply invoked newly-decided federal case law which, in the

federal court system, would not benefit him.10

In our view, the real issue here is whether, given the

federal retroactivity requirement, we should, as the State

argues, apply an approach analogous to that set forth in Davis,

9

The Court also held that the warrant requirement would take

effect thirty days after its decision to give the Attorney

General time to issue guidance to state and local law

enforcement. Ibid.

10

Defendant's reliance on State v. Wessells, 209 N.J. 395

(2012), is not persuasive. Wessells was not a Fourth Amendment

search-and–seizure case and, not surprisingly, the opinion does

not mention Davis. In Wessells, our Court applied a new Fifth

Amendment ruling of the United States Supreme Court and

determined, using "the ordinary federal retroactivity analysis,"

id. at 413, that the defendant was entitled to the benefit of

the federal ruling because he had not yet been tried. Under

federal Fifth Amendment principles, "the coercive taint of the

initial interrogation had not dissipated" when defendant made

his later incriminating statements to the police, and,

therefore, those statements were deemed "not voluntary." Ibid.

No such considerations apply to the blood evidence here, which

cannot be regarded as tainted or unreliable by virtue of the

warrantless manner in which the police obtained it. See

Sanchez-Llamas v. Oregon, 548 U.S. 331, 349, 126 S. Ct. 2669,

2681, 165 L. Ed. 2d 557, 578 (2006) (noting that coerced

confessions "tend to be unreliable").

12 A-5748-12T4

or whether, as defendant argues, the result here is dictated by

State v. Novembrino, 105 N.J. 95, 157-59 (1987), which rejected

a "good faith" exception to the application of the exclusionary

rule.

In Novembrino, our Court, in construing the State

Constitution, declined to follow the rule announced in United

States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677

(1984). Leon held that the exclusionary rule would not apply

where the police acted in objectively reasonable reliance on a

facially valid search warrant, which was issued by a judge but

was "ultimately found to be unsupported by probable cause." Id.

at 900, 922, 104 S. Ct. at 3409, 3420, 82 L. Ed. 2d at 684,

698.11 In adopting what it characterized as a "good-faith

exception for searches conducted pursuant to warrants," the Leon

Court reasoned that "the marginal or nonexistent benefits

produced by suppressing evidence obtained in objectively

reasonable reliance on a subsequently invalidated search warrant

cannot justify the substantial costs of exclusion." Id. at 924,

922, 104 S. Ct. at 3420-21, 82 L. Ed. at 698-99.

11

In Leon, the Court of Appeals held that the warrant was

invalid because it was based on stale information from an

informant, and did not sufficiently establish the informant's

credibility. Id. at 904-05, 104 S. Ct. at 3411, 80 L. Ed. 2d at

686-87. The Supreme Court assumed, without deciding, that the

warrant was invalid for lack of probable cause. Ibid.

13 A-5748-12T4

In declining to adopt the good faith rule, under the

auspices of the New Jersey Constitution,12 our Court

characterized Leon as solely concerned with deterring unlawful

police conduct:

The major premise of the Court's holding in

Leon is that the exclusionary rule is not

required by the fourth amendment but rather

operates as "'a judicially created remedy

designed to safeguard Fourth Amendment

rights generally through its deterrent

effect, rather than a personal

constitutional right of the person

aggrieved.'" The opinion observes that in

view of the rule's function as a deterrent

of police misconduct, its application in

particular cases "must be resolved by

weighing the costs and benefits of

preventing the use in the prosecution's

case-in-chief of inherently trustworthy

tangible evidence obtained in reliance on a

search warrant issued by a detached and

neutral magistrate that ultimately is found

to be defective."

The majority, after citing examples of the

Court's prior application of the cost-

benefit analysis to the exclusionary rule,

concluded that there is little likelihood

that the exclusion of evidence obtained

pursuant to a subsequently invalidated

search warrant will have a deterrent effect

on law-enforcement officers.

[Novembrino, supra, 105 N.J. at 140-41

(citations omitted).]

Our Court disagreed with Leon, emphasizing the critical

constitutional significance of the probable cause standard. Id.

12

N.J. Const., art. I, ¶ 7.

14 A-5748-12T4

at 107-08. Indeed, much of the opinion is devoted to a

discussion of the probable cause standard and its central

importance to the warrant requirement. Id. at 105-22. The

Court also observed that the defects in the Novembrino warrant

probably resulted from the hurried actions of an inexperienced

police officer. Id. at 129. The Court concluded that

suppressing evidence seized pursuant to invalid warrants would

safeguard the integrity of the process by which warrants are

sought and issued. "Our view that the good-faith exception will

ultimately reduce respect for and compliance with the probable-

cause standard that we have steadfastly enforced persuades us

that there is a strong state interest that would be disserved by

adopting the Leon rule." Id. at 154.

Our Court also took a broader view of the purpose of the

exclusionary rule:

Our concern . . . is with the Constitution

and with the basic and fundamental

guarantees that that document was intended

to afford to all our citizens, particularly

in times of public ferment. In our view,

the citizen's right to be free from

unreasonable searches and seizures conducted

without probable cause is just such a

fundamental principle, to be preserved and

protected with vigilance. In our tripartite

system of separate governmental powers, the

primary responsibility for its preservation

is that of the judiciary.

The exclusionary rule, by virtue of its

consistent application over the past twenty-

15 A-5748-12T4

five years, has become an integral element

of our state-constitutional guarantee that

search warrants will not issue without

probable cause. Its function is not merely

to deter police misconduct. The rule also

serves as the indispensable mechanism for

vindicating the constitutional right to be

free from unreasonable searches. Because we

believe that the good-faith exception to the

exclusionary rule adopted in Leon would tend

to undermine the constitutionally-guaranteed

standard of probable cause, and in the

process disrupt the highly effective

procedures employed by our criminal justice

system to accommodate that constitutional

guarantee without impairing law enforcement,

we decline to recognize a good-faith

exception to the exclusionary rule.

[Id. at 156-58 (footnote omitted).]

As an intermediate appellate court we are, of course, bound

by Novembrino. However, we do not believe that Novembrino

applies to the very different circumstances of this case, which

has nothing to do with invalid warrants or unlawful police

activity. In reaching that conclusion, we note that in very

limited circumstances, the Court has signaled that application

of the exclusionary rule may not always be appropriate where

applying the rule would not serve its well-understood purposes.

In State v. Harris, 211 N.J. 566 (2012), the Court declined

to order the suppression of an illegal handgun seized during a

search authorized by a warrant properly issued pursuant to the

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Unlike a warrant issued for a criminal investigation, a domestic

16 A-5748-12T4

violence warrant need not be issued on probable cause. However,

the Court reasoned that the gun was discovered and seized during

a "special needs search," conducted to protect a victim of

domestic violence and not for the purpose of uncovering evidence

of crime. Id. at 584. Ordinarily, the fruits of such a search

may be admissible in a subsequent criminal prosecution, so long

as the search was conducted pursuant to a valid domestic

violence warrant and was not a mere pretext to uncover criminal

evidence. Id. at 585-86 (citing State v. Dispoto, 189 N.J. 108,

123 (2007)).

In declining to apply the exclusionary rule, however, the

Court further stated:

It is also appropriate to consider the

purpose that undergirds the exclusionary

rule. Almost inevitably, whether as the

result of mistake, inadvertence, ignorance,

or overzealousness, police can come into

possession of evidence bearing on criminal

activity without having complied perfectly

with the constitutional requirement of

probable cause. In response to this

reality, courts have crafted the

exclusionary rule, under which evidence

seized illegally is suppressed. United

States v. Calandra, 414 U.S. 338, 347-48, 94

S. Ct. 613, 619-20, 38 L. Ed. 2d 561, 571

(1974); Handy, supra, 206 N.J. at 45-46.

The purpose of the rule is two-fold: 1) to

assure that the law does not provide an

incentive for police misconduct and 2) to

protect judicial integrity. Mapp v. Ohio,

367 U.S. 643, 655-59, 81 S. Ct. 1684, 1692-

94, 6 L. Ed. 2d 1081, 1090-92 (1961); Elkins

v. United States, 364 U.S. 206, 216-17, 80

17 A-5748-12T4

S. Ct. 1437, 1444, 4 L. Ed. 2d 1669, 1677

(1960). Here, there was no misconduct of

any sort, no mistake in executing the

warrant, and no disregard of its

requirements. Consequently, to apply the

exclusionary rule in this context would not

further any of its purposes. We reach this

conclusion in this limited, particular

context, and we should not be understood at

this juncture as retreating from our earlier

rejection of the good faith exception.

State v. Novembrino, 105 N.J. 95, 157-58

(1987).

[Harris, supra, 211 N.J. at 590 (emphasis

added) (citing State v. Handy, 206 N.J. 39,

45-46 (2011)).]

The above-quoted language is readily applicable to this

case. Like Harris, and unlike Novembrino, here there was no

mistake by the police, good faith or otherwise. At the time of

the search, their conduct was lawful under well-established case

law in this State. See also State v. Domicz, 188 N.J. 285, 295-

96 (2006) (declining to characterize a thermal scan as "unlawful

conduct" by the police, when at the time of the scan, most

courts that had considered the issue had held that a thermal

scan was not a "search"). The police were not acting pursuant

to an invalidly-issued warrant which they mistakenly thought was

valid. Nor was there any unreasonable or improper conduct by

another State law enforcement employee involved in the search.

This case is not like State v. Handy, where a police

dispatcher negligently and inaccurately informed an officer that

18 A-5748-12T4

there was an outstanding warrant for the defendant. Handy,

supra, 206 N.J. at 41-42. Handy was arrested, and a search

incident to the arrest yielded contraband. Id. at 42. The

Court distinguished prior federal cases involving "an attenuated

clerical error in a database upon which police officials

reasonably relied." Id. at 52. Instead, the Court found that

the dispatcher was "an active participant" in the chain of

events leading to the defendant's arrest. Id. at 47-48. The

Court concluded that suppression "would have important deterrent

value, would underscore the need for training of officers and

dispatchers to focus on detail, and would serve to assure that

our own constitutional guarantees are given full effect." Id.

at 52. Cf. State v. Pitcher, 379 N.J. Super. 308, 311 (App.

Div. 2005) (declining to suppress evidence where the police

officer stopped defendant's car based on a computer check of

Motor Vehicle records, which inaccurately indicated that the

car's owner had a suspended license).

Handy is not on point because, at the time the police

obtained the blood sample in this case, they were conducting

themselves in a manner sanctioned by decades of precedent from

our Supreme Court. No amount of additional police training

would have deterred the search in this case, because the police

were following the law as it existed at the time. As in Harris,

19 A-5748-12T4

suppressing the evidence would not serve the purpose of the

exclusionary rule to prevent illegal police conduct. Nor would

admitting the evidence involve the judiciary in what Handy

described as "'the taint of partnership in official

lawlessness.'" Handy, supra, 206 N.J. at 45 (citation omitted).

While it could be argued that suppression would, in some

abstract sense, vindicate defendant's state and federal

constitutional right against illegal searches, it would do so at

a cost our Court has not always found justifiable.

Retroactivity analysis implicitly recognizes that, where

retrospective application of a new rule of law will inflict

major disruption on the criminal justice system, some defendants

will not get the benefit of the new rule even if it implicates

constitutional rights. Thus, in declining to give retroactive

application to new search and seizure rulings -- and to various

other criminal law rulings, see, e.g., Henderson, supra, 208

N.J. at 302, -- the Court necessarily deprives some defendants

of an avenue to vindicate newly-recognized rights.

In the very narrow circumstances presented here, we

conclude that Harris and by analogy, Davis, signal the correct

path to our decision. We recognize that there are doctrinal

differences between the reasoning in Davis and in Harris. For

example, Davis rested in part on the good faith exception

20 A-5748-12T4

articulated in Leon, which our Court rejected in Novembrino.

But at the heart of both opinions is the same core of common

sense.

"In this case, the State does not seek to admit the fruits

of unlawful police conduct since the police fully complied with

the law in effect at the time they acted." Skidmore, supra, 253

N.J. Super. at 237.13 Consequently, application of the

exclusionary rule here would not serve the rule's principal

purposes articulated by our Court. It would not deter unlawful

police conduct, and it would not meaningfully safeguard the

integrity of our judicial process. It is one thing for our

courts to eschew involvement in admitting evidence seized

unlawfully. It is another thing entirely to exclude evidence

seized in conformity with the law as it existed at the time of

the seizure. Consequently, we reverse the trial court's order

suppressing the blood evidence.

In reaching this conclusion, we emphasize the unusual

circumstances of this case, where (a) the United States Supreme

Court issued a new search and seizure rule that was more

13

Skidmore involved a retroactivity analysis of State v.

Hempele, 120 N.J. 182 (1990), which held that police searches of

curbside garbage required a warrant. Skidmore concluded that

because Hempele represented a dramatic break with prior law, it

would not be applied retroactively. Id. at 238. Skidmore,

therefore, did not reach the issue of whether the exclusionary

rule would apply if the Hempele ruling were retroactive.

21 A-5748-12T4

restrictive than existing precedent from our Supreme Court; (b)

at the time the search was conducted, it was authorized by

settled precedent from our Supreme Court; and (c) had the new

rule been issued by our Supreme Court as an interpretation of

the New Jersey Constitution, it would not have been applied

retroactively.

[At the direction of the court pursuant to

R. 1:36-2(a), the discussion addressing the

defendant's appeal in Part II has been

omitted from the published version of the

opinion.]

Affirmed in part, reversed in part, and remanded for trial.

22 A-5748-12T4