STATE OF NEW JERSEY VS. RANDY VIDAL (16-04-0523, HUDSON COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-3891-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RANDY VIDAL,

     Defendant-Appellant.
_______________________

                   Argued June 21, 2021 – Decided July 9, 2021

                   Before Judges Fisher and Fasciale.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 16-04-0523.

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

                   Erin M. Campbell, Assistant Prosecutor, argued the
                   cause for respondent (Esther Suarez, Hudson County
                   Prosecutor, attorney; Erin M. Campbell, on the brief).

PER CURIAM
       Defendant previously appealed from his conviction for second-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1). We remanded for

the judge to make specific findings and conclusions of law as to prong three of

the independent source doctrine, and to consider the State's argument—raised

for the first time—that the inevitable discovery doctrine was a separate basis to

deny defendant's motion to suppress. State v. Vidal, No. A-1124-18 (App. Div.

Nov. 26, 2019) (slip op. at 2). On remand, the judge applied the inevitable

discovery doctrine and denied defendant's motion to suppress the firearm. We

affirm. 1

       On appeal, defendant raises the following argument for this court's

consideration:

            POINT I

            THE [JUDGE] ERRED IN HOLDING THAT THE
            INEVITABLE DISCOVERY DOCTRINE SAVED
            THE ILLEGAL SEARCH OF THE BASEMENT
            APARTMENT, ESPECIALLY IN LIGHT OF THE
            [JUDGE'S] FINDING OF FLAGRANT POLICE
            MISCONDUCT.

1
   As we pointed out in our prior opinion, the independent source doctrine and
the inevitable discovery doctrine are two separate exceptions to the exclusionary
rule. Vidal, slip op. at 12-13. On remand, the judge found that the State failed
to establish the third prong on the independent source doctrine, which defendant
does not contest on appeal. Thus, our focus—like defendant's—is whether the
judge properly applied the inevitable discovery doctrine to deny his motion to
suppress.

                                       2                                   A-3891-19
                  A. Introduction

                  B. The Inevitable Discovery Doctrine

                        1. [Judges] must stringently hold the State
                           to its burden to establish that the police
                           would have lawfully obtained the
                           evidence by carefully considering the
                           nature of the illegal actions.

                        2. If an independent source for the
                           evidence would be unduly tainted by the
                           illegal police conduct, then inevitable
                           discovery cannot save the evidence
                           from exclusion.

                  C. The State Failed To Establish The Prongs Of
                     Inevitable Discovery

      In reviewing a decision on a motion to suppress, we will "uphold the

factual findings underlying the [judge's] decision so long as those findings are

supported by sufficient credible evidence in the record." State v. Gamble, 

218

N.J. 412

, 424 (2014). We will only reverse if the motion judge's decision was

"so clearly mistaken that the interests of justice demand intervention and

correction." 

Id. at 425

 (citations and internal quotation marks omitted). We

review the motion judge's legal conclusions de novo. 

Ibid.

      The exclusionary rule provides that evidence obtained in violation of an

individual's constitutional rights will be excluded as "fruit of the poisonous

tree." State v. Faucette, 

439 N.J. Super. 241

, 266 (App. Div. 2015) (quoting

                                       3                                  A-3891-19
State v. O'Neill, 

193 N.J. 148

, 171 n.13 (2007)). The inevitable discovery

doctrine is an exception to the exclusionary rule which permits admission of

evidence resulting from an illegal search where the prosecution can show that it

would have discovered the evidence "had no illegality occurred." State v. Sugar,

100 N.J. 214

, 238 (1985) (Sugar II). Its purpose is to "prevent[] the prosecution

from being in a better position than if the illegal conduct had not taken place"

rather than to "punish the prosecution by putting it in a worse place." State v.

Camey, 

239 N.J. 282

, 302 (2019) (citing Sugar II, 

100 N.J. at 237

). The State

must demonstrate that

            (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.

            [Sugar II, 

100 N.J. 238

.]

      The State is not required to demonstrate the exact circumstances that

would result in the discovery of the evidence. Camey, 239 N.J. at 302 (quoting

State v. Maltese, 

222 N.J. 525

, 552 (2015)). "[T]he State need only present facts

or elements—proving each such fact or element by a preponderance of the


                                        4                                  A-3891-19
evidence—that in combination clearly and convincingly establish the ultimate

fact and lead to the conclusion that the evidence would be inevitably

discovered." 

Ibid.

 (quoting State v. Sugar, 

108 N.J. 151

, 159 (1987) (Sugar III)).

The State did that here. 2

        As to the first prong, the record supports the judge's conclusion that

Sergeant McVicar followed proper, normal, and specific investigatory

procedures in obtaining the second search warrant, which the judge determined

was based upon probable cause "even without the information [Sergeant]

McVicar learned when he opened the door to the basement [apartment]." See

State v. Finesmith, 

406 N.J. Super. 510

, 524 (App. Div. 2009) (noting that prong

one is satisfied through the execution of a search warrant). Indeed, the record

supports the judge's finding that police would have inevitably discovered the

firearm in defendant's apartment.

        As to the second prong, defendant does not argue that the State failed to

demonstrate that "under all of the surrounding relevant circumstances the pursuit

of those procedures would have inevitably resulted in the discovery of the

evidence." Sugar II, 

100 N.J. at 238

. For completeness, the judge concluded

that the State satisfied this prong as Sergeant McVicar testified that "based on


2
    We rely on the facts set forth in our earlier decision. Vidal, slip op. at 2-3.

                                           5                                   A-3891-19
what [defendant] had informed [the officers] and based on [his] observations, .

. . [he] would have wrote a search warrant for" the basement apartment. Police

would have discovered the firearm pursuant to the second search warrant. These

findings are supported by the record.

      As to the third prong, the record supports the judge's finding that police

would have discovered the evidence "wholly independent of the unlawful

opening of the basement door."      Sergeant McVicar testified that he "saw

defendant leave from the building's alleyway," which "led him to believe that

defendant exited from the basement apartment."         Vidal, slip op. at 5-6.

Additionally, "[d]efendant said that he lived [in the] basement apartment during

his arrest" prior to McVicar improperly opening the basement apartment door.

Vidal, slip op. at 6. As a result, the information Sergeant McVicar learned

during defendant's arrest led to the conclusion that defendant lived in the

basement apartment, which was sufficient to establish probable cause for a

warrant without considering the information learned after opening the basement

apartment door.

      Affirmed.




                                        6                                 A-3891-19

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