Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Camey

Supreme Court of New Jersey

August 1, 2019

State of New Jersey, Plaintiff-Appellant,
v.
Rafael Camey, Defendant-Respondent.

          Argued January 2, 2019

          On appeal from the Superior Court, Appellate Division.

          Lila B. Leonard, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Lila B. Leonard, of counsel and on the brief, and Christopher W. Hsieh, Chief Assistant Passaic County Prosecutor, on the brief).

          Stefan Van Jura, Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief, and Laura C. Sutnick, Designated Counsel, on the brief).

          Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom, Tess Borden, Edward Barocas, and Jeanne LoCicero, on the brief).

          LaVECCHIA, J., writing for the Court.

         The Court reviews two key pre-trial determinations involving the DNA evidence from defendant Rafael Camey, who stands charged with murder. First, the trial court ruled the results of a buccal swab that had been excluded on the basis of invalid consent inadmissible under either of the State's inevitable discovery arguments. Second, the trial court also applied an inevitable discovery analysis in rejecting the State's application to take a second buccal swab from defendant. The second determination raises a novel question: Under what circumstances, if any, may the police apply to conduct a new search for immutable evidence like DNA? Is a suspect's DNA off-limits to law enforcement for all time if an initial search was invalid? Or, are there situations in which law enforcement may seek a new buccal swab to examine a person's DNA?

         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.

         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.

         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 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)

         The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED for further proceedings.

          JUSTICE ALBIN, dissenting, expresses the view that there is no basis to reverse the trial court's suppression order and to remand before a different judge, because the State cannot prove by clear and convincing evidence that the police officers did not engage in flagrant misconduct when they unlawfully detained Camey three times, unlawfully interrogated him, and unlawfully secured a buccal swab without his consent. Justice Albin notes that the trial court properly applied the inevitable discovery doctrine -- the theory presented by the State at the suppression hearing -- and that its factfindings must be accorded deference. Justice Albin also explains that the majority's retreat from Holland's rigorous independent source test -- the test for determining whether a "seizure of evidence was independent of, and untainted by, earlier illegal police misconduct" --diminishes the deterrent effect of the exclusionary rule. In Justice Albin's view, allowing the State to rely on the same evidence to establish probable cause permits the police a do-over after a failure to adhere to constitutional dictates.

          CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a dissent.

          OPINION

          LaVECCHIA JUSTICE

         In this case, defendant Rafael Camey stands charged with murder. The police discovered the victim's lifeless body behind a supermarket in Passaic and swabbed it for DNA evidence. The victim had been brutally beaten and was partially disrobed; the cause of her death was blunt force trauma and drowning.

         The ensuing investigation led the police to search for a particular violent individual with whom the victim had been seen. To try to solve the crime, the police swabbed multiple individuals for DNA including defendant. His DNA profile matched the DNA found in the victim. In this interlocutory appeal, we review two key pre-trial determinations involving the DNA evidence from defendant.

         First, after the trial court granted defendant's motion to suppress DNA results from a buccal swab obtained on the basis of invalid consent, which the State no longer contests, the State sought admission of the excluded DNA results on the basis of inevitable discovery. The State argued that it could have obtained a buccal swab from defendant under N.J.S.A. 53:1-20.20 or through an application for investigative detention under Rule 3:5A-4. The trial court agreed to employ an inevitable discovery analysis and ruled the results from that buccal swab inadmissible under either inevitable discovery argument. The Appellate Division affirmed the suppression of the results from that swab.

         Second, the State filed a separate application under Rule 3:5A-4 to take a second buccal swab from defendant. The court again turned to the framework of an inevitable discovery analysis and rejected the application. The Appellate Division again affirmed.

         Like the trial court and the Appellate Division, we hold that the police violated the Fourth Amendment in the way they obtained defendant's DNA. As a result, the results from that search cannot be used.

         DNA evidence, however, is immutable. It is unlike a completed search of a home in which the police already removed contraband -- a search that cannot be repeated. After a person is swabbed for DNA, of course, his DNA remains intact. It will be the same ten years from now as it was several years ago. The application for a second buccal swab from defendant calls into question the standard to which the State should be held when making an application for a judicially sanctioned swab as part of an investigative detention, see R. 3:5A-4, after the State's previous swab -- secured through an unconstitutional search and seizure -- was excluded. Notwithstanding the immutability of DNA information, the second buccal swab does not lose its character as a second search and seizure merely because the new buccal evidence will provide the same uniquely identifying information available from an individual's DNA that the initial buccal evidence provided.

         The appeal thus raises a novel question: Under what circumstances, if any, may the police apply to conduct a new search for immutable evidence like DNA? Is a suspect's DNA off-limits to law enforcement for all time if an initial search was invalid? Or, are there situations in which law enforcement may seek a new buccal swab to examine a person's DNA?

         We conclude that a traditional inevitable discovery "look-back" analysis for alternative reasoning to support admission of already-seized evidence is a poor fit for the analysis needed in these circumstances. Instead, we draw from the independent source doctrine to analyze the question and frame an appropriate test. To apply for a new buccal swab for DNA evidence under Rule 3:5A, we conclude that the State must demonstrate probable cause for the new search. That showing may include evidence that existed before the initial invalid search, but the showing 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. The approach adopted protects a suspect's constitutional rights and recognizes the legitimate public interest in a fair assessment of whether a second buccal swab sample should be allowed.

         In sum, we affirm the suppression of DNA evidence from the first buccal swab. We hold that 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. We vacate the Appellate Division's affirmance of the denial of the State's application to take a new buccal swab from defendant and remand for further proceedings consistent with this opinion and the new test set forth herein.

         I.

         The pertinent facts from the pre-trial applications and related evidential proceedings involve the State's investigation into the death of a woman whose body was discovered in a secluded area of Passaic and the narrowing of the investigation to defendant.

         A little after 6:00 p.m. on September 30, 2013, the Passaic Police Department received a 9-1-1 report of a body in a wooded area near a river bank behind a ShopRite store. Sergeant Bordamonte, the lead detective in the matter, testified that the deceased -- later determined to be a woman named Katie[1] -- had been "beaten very, very brutally" and was partially disrobed. An autopsy revealed that the cause of death was blunt force trauma and drowning.

         Bordamonte was familiar with Tina, the person who placed the 9-1-1 call. The police knew she was a prostitute who frequented the area where Katie's body was located and that she had provided useful information in other police investigations.

         Bordamonte interviewed Tina the day after Katie's body was found. Tina told Bordamonte that Katie was "the new girl on the block" and that she saw Katie with a person she described as a "violent Mexican male" (the violent male) at about 11:00 p.m. 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, Ashley, and that a friend, Dennis, would be better able to describe this man because Dennis "definitely knows who he is."[2] Bordamonte showed Tina photographs from the police database and later drove her around in the hope that she might recognize the man she recalled seeing with Katie. Neither effort produced an identification, and Tina agreed to contact the police if she saw the man again. According to Bordamonte, Tina appeared to be under the influence of an intoxicating substance during this initial interview.

         Later that day, police obtained a statement from Katie's husband, Martin. According to Martin, Katie was a prostitute and drug addict. He said that he had not seen her for one or two days and that it was not uncommon for her to "disappear for days at times." Bordamonte later learned, through a criminal history search, that Martin had been arrested for aggravated sexual assault and kidnapping and that there had been a domestic violence incident between him and Katie.

         Three days after finding Katie's body, Bordamonte conducted a second interview with Tina in which she repeated that she last saw Katie with the violent male the night before her body was found. During this interview, Tina again appeared to Bordamonte to be under the influence of drugs.

         That same day, police officers conducted on-scene interviews with approximately sixteen homeless individuals who were in the vicinity of where Katie's body was found and from whom the police received consent to take buccal swabs. None of the individuals whom the police interviewed and swabbed were able to provide information related to Katie's death. Beforehand, police had administered buccal swabs to at least four other homeless individuals who were in the area near where Katie's body was found.

         On October 8, 2013, police interviewed a friend of Katie's, Penny, who reported that Katie and Martin were having "marital problems." Penny also stated that, on the night before Katie's body was found, she saw her with a man named Richard and she believed Richard was involved in the murder because he had not been back since that night. Richard was subsequently interviewed, and he confirmed that he saw Katie the night before her body was found. Others interviewed by Bordamonte included a woman who reported that she had acted as a lookout for Katie while Katie had a sexual encounter with a Polish man the day she was killed. According to this report, Katie and that man were alone for a long time.

         On October 18, 2013, Tina was interviewed for a third time. She reiterated that she last saw Katie walking away from others toward a more secluded area with the so-called violent male and added that the "rumor in the street" was that someone called "Blaze" killed Katie.[3] Two days after this interview, Tina called police to report that she saw the violent male about whom she had been telling them. Police responded to her location, where Tina made an on-scene identification of defendant by pointing him out.

         Thus, despite the investigation leading in various directions, by October 21, 2013, defendant was a person of interest in the investigation into Katie's murder. That night, officers went to a bar that defendant frequented after his work shift and detained him. Detective Alex Flores advised defendant of his Miranda[4] rights and interviewed him in Spanish, his native language. Flores also presented defendant 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, on January 13, 2014, Bordamonte sent defendant's DNA sample, along with the approximately twenty other samples that the police had collected from local homeless individuals, to the State Police Laboratory for testing. Bordamonte testified that he waited so he could submit the samples in a single group, conceding that the submission "was a touch delayed."

         On March 18, 2014, Tina provided police with another formal statement, this time shortly after her incarceration, during which she was drug-free. This statement was consistent with her previous statements regarding Katie and the violent male. Also, after viewing photographs depicting eighteen of the twenty individuals who had either consented to buccal swabs or been interviewed as part of the investigation, Tina picked out defendant as the violent male she had described.

         On April 8, 2014, police brought defendant in for a second interview. Detective Reinaldo Arroyo read defendant his Miranda rights in Spanish and repeated them, upon defendant's request, before conducting the interview. Defendant was released at the end of that interview.

         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 brought to police headquarters, was read his Miranda rights in Spanish, and spoke with police for several hours. He was placed under arrest at the conclusion of that interview and charged with felony murder, N.J.S.A. 2C:11-3(a)(3); murder, N.J.S.A. 2C:11-3(a)(1); and aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6).

         II.

         During pre-trial applications, the trial court was required to evaluate defendant's consent to the buccal swab. The court already had ordered the suppression of defendant's three statements, which the State does not contest on appeal. With respect 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. The court held 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 this State in State v. Sugar, 100 N.J. 214 (1985) (Sugar II), which has a three-pronged test that the State must satisfy by clear and convincing evidence.

         The court determined that the State failed to show that proper, normal and specific investigative procedures would have been pursued, rejecting, in particular, the State's assertion that Bordamonte would have applied for a search warrant for defendant's DNA had defendant denied consent. In reaching that conclusion, the court reasoned that although Bordamonte collected DNA samples from twenty "homeless males" and several other people by the time detectives obtained defendant's DNA on October 21, 2013, the swabs were not taken to the lab until January 13, 2014. 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.[5] The court further pointed to other investigatory failings or shortcomings as reinforcing the conclusion that police would not have obtained a warrant for DNA. For example, the court cited as "shocking" the failure to interview defendant's roommates or co-workers regarding ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.