                                NOT FOR PUBLICATION WITHOUT THE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-3809-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

TERRANCE L. ATKINS, a/k/a
TERENCE L. ATKINS, and
TERRANCE ARKINS,

     Defendant-Appellant.
___________________________________

                    Submitted May 21, 2018 – Decided October 29, 2018

                    Before Judges Ostrer and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Somerset    County, Indictment No.
                    08-12-0931.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Jay L. Wilensky, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Michael H. Robertson, Somerset County Prosecutor,
                    attorney for respondent (Paul H. Heinzel, Assistant
                    Prosecutor, of counsel and on the brief).
       The opinion of the court was delivered by

OSTRER, J.A.D.

       Defendant appeals from his conviction, after a guilty plea, to an amended

charge of third-degree possession of a controlled dangerous substance (CDS)

analogue, N.J.S.A. 2C:35-10(a)(1), and fourth-degree possession of marijuana

with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(12). He contends the

trial court erred in denying his motion to suppress the fruits of a search of his

vehicle. We affirm.

       This case returns to us after a remand. We previously reversed defendant's

conviction, after a jury trial, of multiple drug and firearm offenses. State v.

Atkins, No. A-0732-13 (App. Div. July 6, 2015) (Atkins I). We held that in two

separate custodial interrogations, police did not scrupulously honor, as required

by Miranda1 and its progeny, defendant's ambiguous requests for counsel, when

he inquired about obtaining a public defender. Id., slip op. at 22. Therefore, we

held at a retrial, the court should suppress defendant's custodial statements. Ibid.

We added that the court should also exclude "any evidence obtained based on

those statements." Ibid.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            A-3809-16T1
                                         2
      In advance of retrial, defendant moved to suppress the drugs and gun

found during a consent search of his vehicle.        Invoking our prior opinion,

defendant contended his consent was invalid, because defendant provided it

after he ambiguously invoked his right to counsel.

      The trial court rejected that argument on two grounds. First, the court

concluded that defendant's consent was knowing and voluntary; it did not arise

from anything he told police during his "defective statement"; and was

"independent of the interrogations and uninfluenced by defendant's statements."

Second, the court held that police would have inevitably discovered the drugs

and gun in defendant's car without defendant's consent. The judge noted that

when defendant consented, police ceased the process already underway to obtain

a search warrant. The judge opined that the warrant would have been granted,

because a suspected CDS was seen in plain view, and defendant was arrested.

      Defendant thereafter pleaded guilty to the charges noted above, and was

sentenced to time served, conditioned on three years of probation. Defendant

had forty-six days of jail credit and 718 days of prior service credit.

      On appeal, defendant argues:

            THE TRIAL COURT'S DENIAL OF SUPPRESSION
            OF PHYSICAL EVIDENCE IS PRECLUDED BY
            THIS COURT'S PRIOR OPINION CONCERNING
            SUPPRESSION OF DEFENDANT'S STATEMENTS,

                                                                          A-3809-16T1
                                         3
            AND ACCORDINGLY MUST BE REVERSED. U.S.
            CONST., AMENDS. IV, XIV; N.J. CONST., Art. 1,
            Par. 7.

Defendant relies on our statement in Atkins I that the court should exclude not

only defendant's incriminating statements, but also "any evidence obtained

based on those statements." He contends that we thereby precluded the trial

court from determining that physical evidence obtained in the consent search

was admissible.

      We disagree. In excluding evidence "based on" defendant's statements

obtained in violation of Miranda, we simply meant to refer to the fruit-of-the-

poisonous-tree doctrine. A court must suppress evidence that is obtained "by

exploitation of . . . illegality"; but not evidence obtained "by means sufficiently

distinguishable to be purged of the primary taint." Wong Sun v. United States,

371 U.S. 471, 488 (1963). We did not bar the trial court from applying the

"inevitable discovery" doctrine, which is an exception to the exclusionary rule

that bars "fruit of the poisonous tree." State v. Johnson, 120 N.J. 263, 289-90

(1990); see also Nix v. Williams, 467 U.S. 431, 444 (1984) (explaining that

excluding evidence that would inevitably have been discovered, independent of

the illegality, does not serve the deterrent purpose of the exclusionary rule). Nor

did we bar the trial court from applying the attenuation doctrine. "Under that


                                                                           A-3809-16T1
                                        4
doctrine, if the causal connection between the illegal conduct and obtaining the

evidence has become so attenuated as to dissipate the taint, the evidence is

admissible." State v. James, 346 N.J. Super. 441, 453 (App. Div. 2002).

      To establish inevitable discovery, the State must prove, by clear and

convincing evidence, that evidence obtained through an illegal search would

inevitably have been discovered, and therefore should not be suppressed. State

v. Sugar, 100 N.J. 214, 240 (1985). The State must show:

            (1) proper, normal and specific investigatory
            procedures would have been pursued in order to
            complete the investigation of the case; (2) under all the
            surrounding relevant circumstances the pursuit of those
            procedures would have inevitably resulted in the
            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.

            [Id. at 238.]

See also Wayne R. LaFave, Search and Seizure § 11.4(a) at 278-79 (5th ed.

2018) (stating that application of the inevitable discovery doctrine is most likely

justified where "investigative procedures were already in progress prior to the

discovery via illegal means . . . or where the circumstances are such that,

pursuant to some standardized procedures or established routine a certain

evidence-revealing     event    would    definitely    have    occurred    later").


                                                                           A-3809-16T1
                                        5
        We shall not disturb the court's findings that police were already in the

process of seeking a search warrant, and that one would have been granted if

police did not withdraw their request for a warrant once defendant consented to

the search. The court's findings were amply supported by the evidence. See

State v. S.S., 229 N.J. 360, 379-80 (2017) (stating the appellate court's

deferential standard of review of a trial court's findings on a motion to suppress).

        At a pre-trial hearing, Somerset County Prosecutor's Office Sergeant

Joseph Walsh testified that, during a field inquiry, he observed what appeared

to be cocaine in the side-pocket of defendant's car door. Defendant had driven

up to a corner in an area where gang-related crimes had occurred, to meet an

individual who had been waiting nervously for roughly fifteen minutes. Upon

spotting the suspected cocaine, the sergeant removed defendant and two other

occupants from the car, and they were placed under arrest. In a search incident

to defendant's arrest, police seized $257 in cash and two cell phones. 2 The

sergeant retrieved the suspected cocaine from the door. After defendant refused

a request on the scene for his consent for a further search of the vehicle, t he

sergeant secured the assistance of a canine unit from the local police station.

The canine indicated the presence of drugs at several points on the vehicle. Back


2
    These particular facts were elicited at defendant's trial.
                                                                            A-3809-16T1
                                           6
at the local police department, Sergeant Walsh conducted a field test which

confirmed that what he had seized was cocaine. The sergeant then contacted the

on-call assistant prosecutor, outlined the facts, and requested a search warrant

for defendant's vehicle. The assistant prosecutor then started to take steps

necessary to contact the emergent duty judge. Sergeant Walsh stated that he

stopped the search warrant application process only after detectives informed

him that defendant had consented to the search.

      These facts amply support a conclusion, by clear and convincing evidence,

that if law enforcement pursued "proper, normal and specific investigatory

procedures" as required in Sugar, a search warrant would have been issued; and

the contents of the vehicle – including the gun and additional drugs – would

have been discovered, independently of defendant's consent given during his

tainted interrogation. An assistant prosecutor was already involved in the effort

to secure a search warrant. The totality of circumstances supported a finding of

probable cause that defendant was engaged in the distribution of CDS, and that

other evidence of a crime would be found in defendant's vehicle. Defendant was

found in a high-crime area, meeting a person who nervously awaited his arrival

on a street corner.    Defendant possessed multiple packets of cocaine, as

confirmed in a field test, in the driver's side pocket of the vehicle. Common


                                                                         A-3809-16T1
                                       7
among drug dealers, defendant also possessed two cell phones and a substantial

amount of cash.

      The trial court found, and we have no doubt, that an emergent duty judge

would have granted the warrant, which would have led to the discovery of the

additional evidence.     In sum, we discern no error in the trial court's

determination to sustain the search based on inevitable discovery. See State v.

Johnson, 120 N.J. 263, 290 (1990) (applying the inevitable discovery doctrine

where the detective was already in the process of preparing affidavit in support

of search warrant based on information independent of the tainted source); State

v. Finesmith, 406 N.J. Super. 510, 522-24 (App. Div. 2009) (applying the

inevitable discovery doctrine where, had police not discovered the laptop as a

result of defendant's suppressed statement, it would have discovered the laptop

pursuant to a warrant that the State had already independently obtained).

      Given our conclusions regarding the inevitable discovery doctrine, we

need not reach the question of whether defendant's grant of consent was

sufficiently attenuated from the tainted interrogation.

      Affirmed.




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