State v. Smith, A-68 September Term 2010; Supreme Court; opinion by Wefing, P.J.A.D., temporarily assigned; dissent by Albin, J.; decided October 25, 2012. On certification to the Appellate Division. [Sat below: Judges Stern, Graves and J.N. Harris in the Appellate Division.] DDS No. 14-1-8073 [86 pp.]

Robert Priester was shot to death while sitting in his automobile in Ewing. Priester was a drug dealer in Trenton and had been involved in a dispute with another drug dealer, Jerome Roberts. Defendant was a friend of Roberts and a partner with him, both in the drug trade and in a clothing store. The state’s theory at trial was that defendant and Roberts, seeking revenge on Priester, arranged for two other men, Andre Bellinger and Khalif Johnson, to shoot him.

Detective Patrick Holt of the Ewing police force was the lead detective on the case. With his investigation basically completed, Holt reviewed the file to organize its contents. In doing so, he realized for the first time that the police had received the toll billing records for defendant’s and Bellinger’s cell phones without having sought and obtained an appropriate communications data warrant.

Defendant and Roberts were both charged with murder for the death of Priester. Bellinger and Johnson each negotiated plea bargains, under which they pleaded guilty to aggravated manslaughter and agreed to testify truthfully against defendant and Roberts.

Prior to the trial getting under way, Roberts and Smith each filed a motion to suppress the telephone records, based on incomplete information supplied by Detective Holt in his first affidavit and false information supplied in his second affidavit. The trial court granted the motion. Based on that ruling, the state obtained leave to appeal. The Appellate Division concluded, based on an interweaving of the inevitable-discovery doctrine and the independent-source rule, that the trial court had erred, and it reversed the order of suppression and remanded the matter for trial.

Roberts entered a negotiated plea of guilty to aggravated manslaughter and the state proceeded against defendant alone. The witnesses included Bellinger, Johnson, Robert Esposito, the ballistics expert, and Holt. He was found guilty of all charges and sentenced to 30 years in prison. Defendant appealed, and a different panel of the Appellate Division affirmed, declining to address defendant’s argument that the original panel had erred when it reversed the trial court’s denial of the suppression motion. The court granted defendant’s petition for certification.

On appeal, defendant contends that the police improperly obtained the telephone toll records and that evidence developed from those telephone toll records should have been excluded at his trial. He also contends that certain remarks by the prosecutor in summation were so improper that he is entitled to a new trial.

Held: The question of suppression of the telephone records and the evidence developed from those records involves a two-step analysis, involving both the inevitable-discovery doctrine and the independent-source rule. The independent source here is the murder weapon; once that was recovered, the police would, through their normal investigatory steps, have inevitably been led to defendant. The Appellate Division concluded correctly that the trial court should not have granted the motion to suppress.

With respect to his suppression motion, defendant contends that the Appellate Division concluded incorrectly the telephone records and the information developed during the course of the investigation were admissible under the inevitable-discovery doctrine and the independent-source rule. He argues that the state was unable to prove by clear and convincing evidence that the police had sufficient probable cause to obtain a warrant for the phone records by the time it received those records. Similarly, he argues that the state has not proved that it would have sought a proper warrant for these records. He urges that as a consequence, Roberts’ toll records should be suppressed, and his toll records, Bellinger’s toll records, the statements of Bellinger and Johnson, and the ballistics evidence should all be suppressed as fruit of the poisonous tree.

Pointing to Holt’s submission of a clearly false affidavit, defendant argues in the alternative that this evidence is not admissible under the independent-source doctrine because this doctrine is only applicable in the absence of flagrant police misconduct.

The record supports a finding that the police would have, through a source independent of Holt’s defective affidavit, sought and obtained Roberts’ telephone records. Further, normal police investigative procedures would have led the police to seek a communications data warrant. With respect to the telephone records of defendant and Bellinger, the issue is resolved by the arrest of Khalif Johnson, which led to the identification of the murder weapon. That discovery, which was wholly independent of the telephone records, led the police to Johnson and, in turn, to Bellinger and then to defendant. In addition, when Dickerson’s statements, omitted from Holt’s initial affidavit, are added to the information already included, the court finds that probable cause for the issuance of the warrant is present. Finally, despite the flaws evident in the warrant application process, the independent-source rule still applies because no flagrant police misconduct occurred.

In addition, the court finds no prosecutorial misconduct warranting a new trial.

The judgment of the Appellate Division is affirmed.

Justice Albin filed a separate dissenting opinion, in which Chief Justice Rabner joins, stating that by not suppressing the evidence unlawfully obtained by the police in flagrant violation of the warrant requirement of the New Jersey Constitution, the majority upholds defendant’s conviction by reducing the exclusionary rule to an empty form of words.

Justices LaVecchia, Hoens and Patterson join in Judge Wefing‘s opinion. Justice Albin filed a separate dissenting opinion, in which Chief Justice Rabner joins.

For appellant — Alison S. Perrone, designated counsel (Joseph E. Krakora, Public Defender). For respondent — Dorothy A. Hersh, Assistant Prosecutor (Joseph L. Bocchini Jr., Mercer County Prosecutor).