On certification to the Superior Court, Appellate Division, whose opinion is reported at 373 N.J. Super. 84 (2004).
(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The Court considers whether evidence gathered by the police after an unconstitutional motor vehicle stop should have been excluded in a prosecution for refusal to submit to a breathalyzer test.
On July 20, 2003, the Ventnor City Police Department established a sobriety checkpoint. The supervisor of the checkpoint directed his officers to stop any vehicle making a turn within the checkpoint zone. The defendant here, James Badessa, passed the sign that read, "DWI Checkpoint," made a left turn, and was stopped. The officer who stopped Badessa observed that his eyes were glassy and his speech slurred. Badessa said he had two glasses of wine. Badessa then failed two of three psycho-physical tests and was arrested for driving while under the influence (DWI). At police headquarters, Badessa refused to take the breathalyzer test and was issued summonses for DWI and refusal to submit to a breathalyzer test. The municipal court judge denied Badessa's motion to suppress based on the claim of an illegal stop, acquitted Badessa of DWI , and convicted him of refusal to take the breathalyzer test.
The Law Division upheld Badessa's refusal conviction. On further appeal, the Appellate Division held that the DWI checkpoint zone failed to provide adequate warning to motorists that a turn would provide cause for a stop but that Badessa's refusal to submit to the breathalyzer test was an independent act free of any taint from the invalid stop and affirmed Badessa's refusal conviction. This Court granted Badessa's petition for certification. The State did not cross-petition to contest the Appellate Division's finding that the police unconstitutionally stopped the car.
HELD: The police officer's observations at the scene of the illegal stop were necessary to prove an essential element of refusal to take the breathalyzer test. Because the evidence must be suppressed, the State cannot prove a violation of the refusal statute.
1. The Appellate Division determined that the stop of the car was unreasonable within the meaning of the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution. To ensure that motorists are informed of what is expected of them when entering into a DWI checkpoint zone spanning intersecting roads, we suggest that police post signs that instruct motorists that they must proceed to the checkpoint, for example: PROCEED TO CHECKPOINT; NO TURNS PERMITTED. The finding that the stop of the car was unconstitutional has not been challenged in this appeal. We decide solely whether the evidence gathered by the police after the invalid stop was properly admitted. (p.8)
2. Even evidence indirectly acquired by the police through a constitutional violation is subject to suppression. However, the exclusionary rule will not apply when the connection between the unconstitutional police action and the evidence becomes so attenuated as to dissipate the taint from unlawful conduct. (p.10)
3. To determine whether there is sufficient attenuation to purge the unconstitutional taint from evidence offered by the State, we look to three factors: (1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct. In a breathalyzer refusal trial, the State must establish (1) the arresting officer had probable cause to believe that defendant had been operating a vehicle while under the influence of alcohol; (2) defendant was arrested for driving while intoxicated; and (3) defendant refused to submit to a breathalyzer test. (pp. 11-12)
4. Here, the challenged evidence sprang directly from the illegal stop. It was immediately after the unconstitutional stop that the officer made his observations of Badessa's glassy eyes, slurred speech, and unsteady gait; that he smelled an odor of alcohol; and that he learned from Badessa that he had been drinking. That information was a direct fruit of the constitutional violation. The officer's testimony was necessary to prove an essential element of the refusal statute. We cannot subscribe to the State's position that a breathalyzer refusal and DWI are distinct for the purposes of an exclusionary rule analysis. DWI and refusal to submit to a breathalyzer test are part of a comprehensive statutory scheme and may be viewed as two sides of the same statutory coin. The facts necessary to prosecute those two offenses are inextricably intertwined. (pp. 12-13)
5. The Appellate Division found that because the exclusionary rule does not apply to resisting arrest or eluding the police following an illegal search or detention, the rule should not apply to a refusal charge. We do not find comparable this refusal case and a case involving the commission of a new crime that directly threatens public safety, such as resisting arrest or eluding the police. (pp. 14-15)
6. In conclusion, the police officer's observations at the scene of the illegal stop were necessary to prove an essential element of refusal to take the breathalyzer test. Because that evidence must be suppressed, the State cannot prove a violation of the refusal statute. (p.16).
The judgment of the Appellate Division is REVERSED and the matter REMANDED to the Law Division for the entry of an order consistent with this opinion.
CHIEF JUSTICE PORITZ and ASSOCIATE JUSTICES LONG, LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO join ...