                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5704-17T3
STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHIWUEZE E. EBERE,

     Defendant-Appellant.
__________________________

                   Argued March 10, 2020 – Decided May 11, 2020

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 15-11-
                   1351.

                   Peter Thomas Blum, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Peter Thomas Blum, of
                   counsel and on the brief).

                   Amanda Gerilyn Schwartz, Deputy Attorney General,
                   argued the cause for respondent (Gurbir S. Grewal,
                   Attorney General, attorney; Amanda Gerilyn Schwartz,
                   of counsel and on the brief).

PER CURIAM
      Defendant Chiwueze Ebere was involved in a motor vehicle accident that

caused the death of another person. Following the denial of defendant's motion

to suppress the results from a blood draw that showed he was intoxicated, he

pled guilty to second-degree vehicular homicide, N.J.S.A. 2C:11-5, and driving

while intoxicated (DWI), N.J.S.A. 39:4-50. Defendant was sentenced to eight

years in prison with periods of parole ineligibility and parole supervision as

prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

      Defendant appeals, challenging his convictions and sentence. He argues

that the results from the blood draw should be suppressed because they were the

fruit of an illegal search.    Alternatively, he contends that he should be

resentenced because the court did not find and apply mitigating factor seven.

We reject these arguments and affirm.

                                        I.

      Three police officers testified at the suppression hearing: Officer Daniel

Bradley, Detective Joseph Chonka, and Detective Donald Heck. We derive the

relevant facts from their testimony and the other evidence at the hearing.

      At approximately 11:30 p.m. on June 27, 2015, a three-car accident

occurred at the intersection of Route 1 and Plainfield Avenue in Edison.

Defendant was driving a Jeep Cherokee, which ran a red light and crashed into

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                                        2
an Acura. The Acura then hit a Honda, which had been waiting at a light at the

intersection. Each car contained a driver and a passenger. The passenger in the

Acura was severely injured and died as a result of her injuries.

      Officer Bradley was one of the first responding officers to arrive at the

scene of the accident.      When he approached defendant he observed that

defendant's eyes were "glassed over," his gait was unsteady, and his breath

smelled of alcohol. Defendant complained of injuries and he and his passenger

were transported to a hospital.

      Thereafter, Officer Bradley, together with another police officer, went to

the hospital. At the hospital, defendant's blood was collected at 12:43 a.m. at

the request of the other officer. That officer did not testify at the hearing because

he had passed away.

      At 1:05 a.m. defendant signed a consent form for the blood draw that had

already occurred. Officer Bradley could not recall the specifics of the consent

for the blood draw. In that regard, Officer Bradley testified that defendant was

causing a scene by sometimes lying down and sometimes sitting up and

shouting.

      Detective Heck arrived at the accident scene at approximately 12:45 a.m.

Detective Heck was the fatal crash detective for the Middlesex County


                                                                             A-5704-17T3
                                         3
Prosecutor's Office and when he arrived, he was the lead investigator. After

investigating the scene and interviewing witnesses, Detective Heck went to the

hospital sometime after 2:25 a.m. At the hospital, Detective Heck spoke with a

nurse who had treated defendant and the passenger from defendant's car. The

nurse told Heck that she "smelled the odor of alcohol coming from [defendant's]

breath." The passenger informed Heck that she had been with defendant before

they drove, and defendant had been drinking alcohol and smoking marijuana

earlier in the evening.

      Detective Heck was informed that defendant's blood had previously been

drawn as authorized by his consent. Detective Heck, however, decided to apply

for a warrant to draw defendant's blood a second time. He explained that he was

concerned about the consent for the first blood draw because defendant may

have been under the influence of both alcohol and drugs.           Accordingly,

Detective Heck contacted an assistant prosecutor to arrange an application for a

warrant to draw defendant's blood a second time. At the time of the application,

Detective Heck did not know the results of the first blood draw analysis.

      The warrant application was made telephonically at approximately 3:45

a.m. and was recorded. Detective Heck testified and informed the judge about

the information he collected from the accident scene, other officers, the nurse,


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                                       4
and the passenger. The judge was also informed that defendant had consented

to a blood draw, though the record is unclear as to whether the judge was aware

that defendant's blood had already been drawn once. The assistant prosecutor,

however, explained that he still wanted to proceed with the warrant application

because he was concerned defendant was not of sound mind to consent.

      Following the testimony by Detective Heck, the assistant prosecutor

submitted that there was probable cause to take a blood draw. The warrant judge

then approved the warrant stating:

            Alright . . . based on [Detective Heck's] testimony
            regarding the accident and what the nurse indicated to
            you and what the officer at the scene indicated to you
            about smelling alcohol . . . and particularly because the
            suspect consented in the event, but even if he hadn’t
            consented, based on this evidence I would grant the
            application to do a blood draw particularly since there
            is [a] fatality with respect to this accident so it's
            granted.

      After considering the testimony at the suppression hearing, the motion

judge issued an order on May 3, 2018, suppressing the results of the first blood

draw, but allowing the results from the second draw. The judge supported that

ruling with a written opinion.

      The motion judge found all the officers to be credible. In particular, he

credited Officer Bradley's testimony that he could not recall the circumstances


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                                       5
surrounding the consent for the first blood draw. The judge suppressed the first

blood draw because he found that the State failed to prove the consent was valid

and there were no exigent circumstances justifying a warrantless blood draw.

      In contrast, the motion judge found that the second blood draw had been

conducted lawfully in accordance with a warrant. The judge found that the

warrant judge determined that there was probable cause supporting the search

and the motion judge independently concluded that the warrant application

established probable cause.     The motion judge also rejected defendant's

argument that the second blood draw should be suppressed as "poisonous fruit"

from the first blood draw. In that regard, the motion judge found that the State

did not know the results of the first blood draw when it applied for the warrant

for the second blood draw.

      As already noted, defendant thereafter pled guilty to second-degree

vehicular homicide and DWI. In exchange, the State agreed to dismiss the

additional charges against defendant, which included first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1); and third-degree causing death with a

suspended or revoked license, N.J.S.A. 2C:40-22(a).

      In accordance with the plea agreement, defendant was sentenced to an

aggregate prison term of eight years.      Specifically, on the second-degree


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                                       6
vehicular homicide conviction, defendant was sentenced to eight years in prison

subject to NERA.      His driving privileges were also revoked for life in

accordance with N.J.S.A. 2C:11-5(b)(4). On the conviction for DWI, defendant

was sentenced to a concurrent 180 days of incarceration because it was his third

DWI conviction.

                                      II.

      Defendant appeals and presents two arguments, which he articulates as

follows:

            POINT I - THE HEARING COURT SHOULD HAVE
            SUPPRESSED THE SECOND BLOOD DRAW FROM
            EBERE ALONG WITH THE ILLEGAL FIRST
            BLOOD DRAW BECAUSE THE PROSECUTOR
            FAILED TO PROVE, AS REQUIRED BY THE
            INDEPENDENT SOURCE DOCTRINE, THAT THE
            FIRST DRAW WAS NOT THE PRODUCT OF
            FLAGRANT POLICE MISCONDUCT. U.S. CONST.
            AMENDS. IV, XIV; N.J. CONST. ART. I, PARA. 7.

            POINT II - A RESENTENCING SHOULD OCCUR
            BECAUSE THE COURT IMPROPERLY FAILED TO
            FIND MITIGATING FACTOR SEVEN EVEN
            THOUGH EBERE HAD NO PRIOR CRIMINAL
            RECORD.

      A.    The Blood Draws

      We employ a deferential standard in reviewing a trial court's ruling on a

motion to suppress. State v. Zalcberg, 232 N.J. 335, 344 (2018). The trial


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                                       7
court's factual and credibility findings will be set aside "only when [the] court's

findings of fact are clearly mistaken . . . [and] the interests of justice require the

reviewing court to examine the record, make findings of fact, and apply the

governing law." Ibid. (alterations in original) (quoting State v. Hubbard, 222

N.J. 249, 262-63 (2015)). We use a de novo standard to review legal issues.

Ibid.

        Both the United States Constitution and the New Jersey Constitution

guarantee freedom from unreasonable searches and seizures by the government.

U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. Taking a "blood sample for the

purpose of alcohol-content analysis constitutes a search" under the Fourth

Amendment. Zalcberg, 232 N.J. at 345 (citing Schmerber v. California, 384

U.S. 757 (1966)).

        A warrant for a search can be issued when there is probable cause to

believe that the search will produce evidence of a crime. State v. Smith, 212

N.J. 365, 388 (2012) (quoting State v. Marshall, 199 N.J. 602, 610 (2009)). Rule

3:5-3(b) permits a judge to issue a warrant telephonically. Moreover, since

December 1, 2013, that rule does not require exigent circumstances for a

telephonic warrant. Notice to the Bar: Telephonic Requests for Search Warrants




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                                          8
for Blood Tests in Driving While Intoxicated (DWI) Cases (Missouri V.

Mcneely) – Rule Relaxation, 214 N.J.L.J. 794 (Nov. 25, 2013).

      The focus of this appeal is on the second blood draw. That draw was taken

pursuant to a warrant. The motion judge found that there was probable cause

for that warrant and, having conducted a de novo review, we agree. See State

v. Handy, 206 N.J. 39, 44-45 (2011).         During the telephonic application,

Detective Heck testified to the discoveries of his investigation, the observations

of defendant, the statement of the nurse, and the statement of the passenger in

defendant's car. Those facts constituted probable cause to believe that defendant

was under the influence when he caused a fatal automobile accident. While the

warrant judge made reference to defendant's prior consent, she was clear in

stating that she was issuing the warrant without regard to the consent.

      On this appeal defendant argues that the second blood draw was

compromised by the first blood draw and that the independent source doctrine

cannot sanitize that constitutional violation. Specifically, defendant argues that

the State failed to prove that the first blood draw was not the product of flagrant

police misconduct. We reject this argument for two reasons.

      First, the independent source doctrine was not triggered in this matter.

When the State made its application for the warrant it did not possess the results


                                                                           A-5704-17T3
                                        9
from the first blood draw and thus did not have any compromised information.

Just as importantly, the warrant judge issued the warrant based on information

that was not derived from the first blood draw.

      Second, even if we were to consider the independent source doctrine, there

was no violation of that doctrine. The independent source doctrine "allows for

the introduction of evidence tainted by unlawful police conduct if the

information leading to discovery of the evidence is independent of the previous

unlawful conduct." State v. Camey, 239 N.J. 282, 310 (2019) (citing Nix v.

Williams, 467 U.S. 431, 443 (1984)). Consequently, the independent source

doctrine allows for the "admission of evidence that was discovered wholly

independently from the constitutional violation." State v. Shaw, 237 N.J. 588,

621 (2019) (citation omitted).

      To satisfy the independent source doctrine the State must prove three

elements by clear and convincing evidence: (1) "probable cause existed to

conduct the challenged search without the unlawfully obtained information"; (2)

"the police would have sought a warrant without the tainted knowledge or

evidence that they previously had acquired or viewed"; and (3) "the initial

impermissible search was not the product of flagrant police misconduct."

Camey, 239 N.J. at 310 (quoting State v. Holland, 176 N.J. 344, 360-62 (2003)).


                                                                        A-5704-17T3
                                      10
      The facts at the hearing demonstrated that all the elements of the

independent source doctrine were established. We have already pointed out that

there was probable cause independent of the first blood draw. Detective Heck

then testified that he sought the warrant because he was concerned about

defendant's state of mind and his ability to provide consent. The motion judge

found that testimony to be credible, and that finding satisfies the second element

of the independent source doctrine. Finally, there is no evidence of flagrant

police misconduct.    Officer Bradley testified that he could not recall the

circumstances of defendant providing the consent. The motion judge found that

testimony to be credible; thus, there was no flagrant police misconduct.

      Defendant argues that the State had to prove that there was no flagrant

police misconduct by clear and convincing evidence. Defendant then argues

that Officer Bradley's lack of memory demonstrates that the State failed to meet

that burden. That argument misconstrues the application of the independent

source doctrine to the facts of this case. The first blood draw was not suppressed

because it was the result of illegal conduct by the police. Instead, it was

suppressed because the State could not establish that the consent was given in a

valid manner. There is no evidence suggesting that the consent was the product

of flagrant police misconduct.


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                                       11
      B.    The Sentence

      Defendant argues that this matter should be remanded for resentencing

because the sentencing court erred in rejecting mitigating factor seven . A

defendant is accorded mitigating factor seven if he or she has no prior criminal

history or otherwise "led a law-abiding life for a substantial period of time."

N.J.S.A. 2C:44-1(b)(7).

      In sentencing defendant, the court found aggravating factor three – the

risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and

nine – the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The court rejected

defense counsel's argument for mitigating factor seven. The court noted that

defendant had no prior indictable convictions, but found that he had a record in

municipal court and in family court. In that regard, the record establishes that

defendant had a prior municipal court conviction for drinking in public. He also

had three domestic violence restraining orders entered against him and he had

violated one of those orders. The record also shows that defendant had two prior

convictions for DWI.

      As already noted, mitigating factor seven is accorded when the defendant

does not have a prior criminal history "or has led a law-abiding life for a

substantial period of time before the commission of the present offense."


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                                      12
N.J.S.A. 2C:44-1(b)(7). Consequently, we have consistently recognized that

municipal court convictions can be a basis for rejecting mitigating factor seven.

See State v. Buckner, 437 N.J. Super. 8, 38 (App. Div. 2014) (holding that the

defendant's “five municipal convictions" in the ten years preceding his most

recent offense demonstrated that he had not led a law-abiding life for a

substantial period of time, though the defendant had prior "indictable offenses"

as well).

      In short, our review establishes that the sentencing court did not err, and

the sentence was within the guidelines, the aggravating and lack of mitigating

factors found were based on "competent and credible evidence in the record,"

and the sentence does not shock our judicial conscience. See State v. Fuentes,

217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

Accordingly, we affirm the sentence.

      Affirmed.




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