On appeal from the Superior Court, Appellate Division.
For remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. O'Hern and Stein, JJ., concurring in the result.
This case has been before this court twice before. On this third appeal we hold that the trial court erred when it suppressed the evidence derived from a search of defendant's property, a search that resulted in the discovery of the victim's body.
On July 10, 1979, Dr. Harry D. Sugar reported the disappearance of his wife, Joan Sugar. On July 31, 1979, Dr. Sugar signed a form consenting to a search of his house and ground by the Vineland police. The search proved fruitless. On August 6, 1979, while Dr. Sugar was in California, Vineland police officers returned to the property and unearthed a shallow grave with the body of Joan Sugar. The body was found under a picnic table close to the house.
The next day, August 7, 1979, Dr. Sugar was arrested as a material witness to her homicide. During questioning, Dr. Sugar requested advice of counsel. The conversations he had with his lawyers were held in private in a room at the police station. Using microphones concealed in the room, Lieutenant Michael Joseph Tirelli, Detective Joseph Leon Soracco, and
Lieutenant Guy Buscemi eavesdropped on and recorded Dr. Sugar's conversation with his lawyer. Detective William Walters and Detective John Mazzeo also heard portions of the conversations. See State v. Sugar (Sugar I), 84 N.J. 1, 4-7 (1980); State v. Sugar (Sugar II), 100 N.J. 214, 220-24 (1985).
The Vineland police used the information that was overheard to obtain a search warrant of Dr. Sugar's home. The search conducted in August 1979 uncovered additional evidence corroborating the information overheard and further incriminating Dr. Sugar in the homicide of his wife.
Later, an informant told Dr. Sugar's attorney that his conversation with his client had been bugged. When this disclosure was confirmed, the Attorney General removed the Vineland Police Department and the Cumberland Prosecutor's Office from the case and assumed the investigation and prosecution directly. Appreciating that the surreptitious eavesdropping placed the prosecution in jeopardy, the Attorney General went ahead with the investigation, attempting to rely only on persons and evidence untainted by the illegal surveillance.
Dr. Sugar moved for dismissal of the charges against him on the ground that his constitutional rights had been violated. The trial court granted the motion. This Court reversed. We agreed that defendant's constitutional rights had been violated but concluded that dismissal of the criminal charges was not mandated. Despite the egregious violations of constitutional guarantees involved in the police's conduct,*fn1 the Court ruled that if the prosecution was "carefully purged of all taint from
investigatory excess," it could continue. Sugar I, supra, 84 N.J. at 15. It further held that since the statements overheard did not "amount[ ] to a disclosure of trial strategy," the prosecution would not violate Dr. Sugar's Sixth Amendment rights. Id. at 22. The Court also noted that careful use of voir dire could eliminate the dangers of prejudicial publicity. Id. at 23. To redress the constitutional violations and to remedy the prosecution's misdeeds the Court ordered that tainted witnesses and evidence would be excluded from the grand jury and at trial. Sugar I, 84 N.J. at 25-26.
The State was able to present the case to the grand jury, gain an indictment, and eventually secure a conviction of Sugar. On appeal, this Court reversed the conviction. We held that the trial court had erred in allowing Detective Mazzeo to be a witness for the State because he participated in and was tainted by the eavesdropping. Excluding him from being a witness was minimally required as a remedy for the official misconduct; it was also required because the defendant would have been effectively precluded from exposing that witness' bias. Sugar II, supra, 100 N.J. at 226-32. We also reversed the trial court's decision to deny defendant's motion to suppress the admission of the victim's body as evidence. The trial court's decision was based on a theory that the search that uncovered this evidence was impliedly consented to by the defendant. However, the evidence for the claim of implied consent came mostly from Mazzeo; because Mazzeo's testimony was inadmissible, the trial court's ruling on admitting the body and derivative forensic test results as evidence was no longer tenable. Id. at 233-35. We left open the possibility that even if the search that uncovered the body was illegal, the body could be admitted into evidence under the "inevitable discovery" doctrine. Id. at 235-40.
On remand, the trial court held that the State had not produced sufficient competent, admissible evidence that Dr. Sugar had consented unequivocally, intelligently, and voluntarily to the search of his home on August 6. The trial court
further held that the State had not met its burden in proving that the body would inevitably have been discovered. Based on those conclusions, the trial court denied use of the victim's body as evidence. The Appellate Division summarily affirmed the trial court's decision. We reverse. We hold that the State has met its burden in showing that the victim's body inevitably would have been discovered. Because we rule that the trial court should have admitted the body as evidence under the inevitable discovery doctrine, we do not reach the State's contention, accepted by the concurring opinion, that the trial court should have admitted that evidence under a theory of implied consent to the search. We have strong reservations that the search conducted on August 6, 1979, which actually led to the discovery of the body, can be sustained under all of the circumstances as a consensual search. As pointed out in Sugar II, consent to a warrantless search not otherwise supported by probable cause or other clear exceptions to the warrant requirement must be shown to be unequivocal, voluntary, knowing, and intelligent. 100 N.J. at 233-35.
The inevitable discovery exception to the exclusionary rule was first elaborated in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Evidence is admissible even though it was the product of an illegal search, "when . . . the evidence in question would inevitably have been discovered without reference to the police error or misconduct, [for] there is no nexus sufficient to provide a taint." Id. at 448, 104 S. Ct. at 2511, 81 L. Ed. 2d at 390. The Supreme Court ruled that the prosecution had to prove inevitable discovery by a preponderance of the evidence. Id. at 444, 104 S. Ct. at 2509, 81 L. Ed. 2d at 387.
In Sugar II, we adopted a restrictive formulation of the inevitable discovery doctrine:
We require the State to show 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 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. [ Sugar II, supra, 100 N.J. at 235.]
Also, the State's burden of proof is the "clear and convincing" standard rather than the more lenient federal "preponderance of the evidence" standard. Id. at 240.
Recent federal court cases have elaborated and clarified various elements of the inevitable discovery doctrine. Rulings relevant to the present case include the conclusions that the doctrine applies where disputed evidence inevitably would have been discovered by a private party rather than by the police, e.g., United States v. Hernandez-Cano, 808 F.2d 779 (11th Cir.1987), and that the doctrine applies to direct as well as indirect products of the State's unlawful behavior, e.g., United States v. Pimental, 810 F.2d 366 (2nd Cir.1987). We think these elaborations are consistent with the holding and reasoning of Nix v. Williams, see Nix, supra, 467 U.S. at 441-48, 104 S. Ct. at 2507-11, 81 L. Ed. 2d at 386-90, and with our holding in Sugar II, and we adopt them.
The trial court reviewed the evidence regarding inevitable discovery of the victim's body. The body was buried unevenly in shallow ground under a picnic table close to the Sugar house. A number of weeks after burial, the ground where the body was buried would eventually settle showing a marked depression accentuated by an absence of vegetation. These changes would be readily visible to even a casual observer. The body would have given off a detectable odor that would be noticeable by persons and would strongly attract animals and insects. An expert also testified that had the body been discovered by early November 1979, the State would have been able to prove the presence of poison in the body.
In addition to these facts, the State adduced evidence stressing that Dr. Sugar, having agreed in early July to sell the house and property to the Calliaris, would have transferred the property to the buyers. The State argued that the body would then have been inevitably discovered. The Calliaris testified that if they were on the property, they would have come across the body in the course of working in the yard, as well as from the likelihood of their dog digging at the site of the buried body.
The sale had not yet been executed nor had title passed by the time the body was discovered on Dr. Sugar's property. Without Mrs. Sugar being able to co-sign the deed documents, the sale could have been completed only if Dr. Sugar had, with the Calliaris, petitioned a court to except the sale of the premises from Mrs. Sugar's dower right.
Relying primarily on the evidence relating to the sale of the property, the trial court determined that the evidence indicating that the victim's body would inevitably have been discovered did not rise to the level of proof required of the State in this case. The trial court then concluded that the State had not met its burden under the test established by Sugar II: "the State has failed to produce any reliable evidence from which this court can clearly and convincingly conclude when and under what precise circumstances the body would have been inevitably discovered."
The trial court's standard, that the State must show "when and under what precise circumstances" the discovery would occur, misconstrues the inevitable discovery standard. The standard as articulated by the trial court does not comport with our decision in Sugar II and finds no support in Nix and the subsequent federal court cases. To establish the inevitability of discovery of evidence, the State need not demonstrate the exact circumstances of the evidence's discovery. It need not establish the exclusive path leading to the discovery. ...