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Date: 02-05-2020
Case Style:
State of New Jersey v. Rafael Camey
Case Number: A-73 September Term 2017
080574
Judge: Jaynee LaVecchia
Court: SUPREME COURT OF NEW JERSEY
Plaintiff's Attorney: Lila B. Leonard, Deputy Attorney General
Defendant's Attorney:
Description:
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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.
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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.
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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
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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)
Outcome: The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED for further proceedings.
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