NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5748-12T4 A-5749-12T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Appellant, December 20, 2013 v. APPELLATE DIVISION TIMOTHY ADKINS,

Defendant-Respondent. ___________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY ADKINS,

Defendant-Appellant. ______________________________________________

Argued November 13, 2013 – Decided December 20, 2013

Before Judges Reisner, Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-08-0734.

Ronald Susswein, Assistant Attorney General, and Jenny M. Hsu, Deputy Attorney General, argued the cause for appellant (A-5748- 12)/respondent (A-5749-12) (John J. Hoffman, Acting Attorney General, attorney; Mr. Susswein and Ms. Hsu, of counsel and on the brief). Richard F. Klineburger, III, argued the cause for respondent (A-5748-12)/appellant (A-5749-12) (Klineburger and Nussey, attorneys; Mr. Klineburger, on the brief).

The opinion of the court was delivered by

REISNER, P.J.A.D.

By leave granted, the State appeals from paragraph one of a

June 7, 2013 order, suppressing the results of a warrantless

blood test, and defendant appeals from paragraph two of the same

order, denying his speedy trial motion. Because we conclude

that application of the exclusionary rule is not required in the

unusual circumstances of this case, we reverse on the State's

appeal. We affirm on defendant's appeal.1

I

The suppression issue is novel and arises from the

following scenario. On December 16, 2010, defendant was

involved in a one-car accident in which his vehicle struck a

utility pole and his two passengers were injured. After

defendant failed the roadside sobriety tests, the West Deptford

police arrested him at about 2:30 a.m., on suspicion of driving

while intoxicated (DWI). They transported defendant to police

1 These back-to-back appeals have been consolidated for purposes of this opinion.

2 A-5748-12T4 headquarters, where they read him his Miranda2 rights and he

invoked his right to counsel. The police later transported

defendant to a local hospital. At 4:16 a.m., hospital personnel

drew a blood sample at the request of the police.3 The

requesting police officer, defendant, and a hospital nurse each

signed a Certificate of Request to Withdraw a Specimen, although

defendant signed the form two minutes after the blood was drawn.

See N.J.S.A. 2A:62A-11.4

2 Miranda v. Arizona,

,

,

(1966). 3 The record does not indicate the time at which the police took defendant to the hospital. Hence, it is not clear whether an approximately two-hour hiatus, between the time of defendant's arrest and the time the blood was drawn, was attributable to delay in taking him to the hospital or delay experienced at the hospital. 4 N.J.S.A. 2A:62A-11 is part of a statute that grants civil and criminal immunity to medical personnel who draw blood samples at the request of a law enforcement officer. N.J.S.A. 2A:62A- 10(a), -10(b). The statute further provides, in pertinent part: "Any person taking a specimen pursuant to [this statute] shall, upon request, furnish to any law enforcement agency a certificate stating that the specimen was taken pursuant to . . . this act and in a medically acceptable manner." N.J.S.A. 2A:62A-11. After reviewing the certificate in this case, we conclude that it was not intended to establish a suspect's consent to a warrantless search, but rather was intended to satisfy the immunity statute and establish the chain of custody of the blood sample. The State has waived any claim of Fourth- Amendment consent, and for purposes of this opinion it is irrelevant that defendant signed the form after the blood was drawn.

3 A-5748-12T4 At the time of the accident in 2010, New Jersey law

permitted the police to obtain a blood sample without first

obtaining a warrant, so long as they had probable cause to

believe that the driver was intoxicated.5 That principle,

derived from Schmerber v. California,

,

,

(1966), was based on the presumed

exigency created by the dissipation of alcohol levels in the

bloodstream, and was clearly stated in opinions of our Supreme

Court. For example, in State v. Dyal,

(1984), the

Court observed: "A drunken driver arrested by police with

probable cause to believe he is intoxicated has no federal

constitutional right to prevent the involuntary taking of a

blood sample. Of course, the sample should be taken in a

medically acceptable manner at a hospital or other suitable

health care facility."

at 238 (citing

,

,

). The

issue in Dyal was whether the police could obtain the results of

hospital blood tests drawn for purposes of medical treatment;

however, part of the Court's reasoning was that the police had

5 Before the trial court, as on this appeal, defendant did not contest that the police had probable cause to seek a blood test. Because he was the driver in a one-car accident and failed the roadside sobriety tests, probable cause would appear self- evident.

4 A-5748-12T4 the right to obtain a blood sample from the driver.

.

Several subsequent Appellate Division decisions likewise

read Schmerber as holding that a warrant was not required. See,

e.g., State v. Burns,

(App. Div. 1978)

("[C]onsent is not required to the taking of a blood sample, but

the taking of such sample must be done in a medically acceptable

manner and environment and without force or violence or the

threat of same."); State v. Woomer,

(App. Div. 1984) ("[A] blood sample may be taken involuntarily

[from a suspected drunk driver] and no consent is required.").

In State v. Ravotto,

(2001), the Court

held that the police used excessive force in obtaining a blood

sample from a drunk driving suspect who was terrified of

needles. However, the Court reaffirmed that the police did not

need a warrant to obtain the blood test:

Our holding is not to be understood as suggesting that the police had to acquire a warrant before obtaining a blood sample from defendant or that they acted in an unreasonable manner in seeking treatment for him at the hospital. Because defendant's car was found overturned and his behavior demonstrated obvious signs of intoxication, probable cause existed for the police to seek evidence of defendant's blood alcohol content level. Moreover, consistent with Schmerber and our analogous case law, the dissipating nature of the alcohol content in defendant's blood presented an exigency that

5 A-5748-12T4 required prompt action by the police. Under those conditions, a warrantless search was justified.

[Id. at 250 (citation omitted).]

These rulings were also reflected in Guidelines issued by

the Attorney General to county and municipal prosecutors.6 In

pertinent part, the Guidelines advised that "[a] defendant has

no right to refuse to allow blood to be drawn as long as the

police or law enforcement officer has probable cause to believe

that the blood sample will contain evidence of alcohol and/or

drugs." Attorney General Guideline[s]: Prosecution of DWI &

Refusal Violations, at 9 (Jan. 24, 2005); N.J.S.A. 39:4-50.2a

(requiring the Attorney General to promulgate guidelines).7

Consequently, when the police obtained the warrantless blood

sample from Adkins, they acted pursuant to well-established

legal precedent in this State.

6 In this context, we recall our Court's recent admonition in State v. Dabas,

(2013), that "the prosecutor's office is not at liberty to disregard a pronouncement of this Court, even if that pronouncement is properly characterized as dictum." Likewise, "[a]ppellate and trial courts consider themselves bound by this Court's pronouncements, whether classified as dicta or not."

. 7 In citing the Guidelines, we do not suggest that the Attorney General can influence our jurisprudence on the exclusionary rule by promulgating guidelines and then asserting that the police reasonably relied on them. We cite the Guidelines only because they rely on clear Supreme Court precedent.

6 A-5748-12T4 However, years later, the United States Supreme Court

clarified Schmerber -- and dramatically changed the legal

landscape in New Jersey and many other states -- by holding that

there was no per se rule of exigency in drunk driving cases, and

that the need to obtain a search warrant before taking a blood

sample was to be determined on a case by case basis. Missouri

v. McNeely, ___ U.S. ___, ___,

,

(2013); see

at ___ n.2,

n.2,

n.2. Further, under well-settled federal

precedent, the Supreme Court's construction of the Fourth

Amendment must be given pipeline retroactivity. Griffith v.

Kentucky,

,

,

(1987) ("We therefore hold that a new rule for the

conduct of criminal prosecutions is to be applied retroactively

to all cases, state or federal, pending on direct review or not

yet final, with no exception for cases in which the new rule

constitutes a 'clear break' with the past.").

However, when applied in the federal courts, McNeely would

not result in suppression of the blood evidence obtained here,

because the United States Supreme Court will not apply the

exclusionary rule as a remedy where the police conducted a

search in good faith reliance on binding legal precedent in the

jurisdiction where the search occurred. See Davis v. United

7 A-5748-12T4 States, ___ U.S. ___, ___,

,

(2011).8

In Davis, the Court clarified that the retroactivity rule

announced in Griffith did not necessarily require application of

the exclusionary rule as a remedy where the Court announced a

new search and seizure rule.

___ U.S. at ___,

,

. "[T]he retroactive

application of a new rule of substantive Fourth Amendment law

raises the question whether a suppression remedy applies; it

does not answer that question."

at ___,

,

.

Davis addressed searches conducted prior to Arizona v.

Gant,

,

,

(2009), a

case holding that police could not automatically search the

passenger compartment of a vehicle whenever an occupant was

arrested.

___ U.S. at ___,

,

. Recognizing that its prior holding in

New York v. Belton,

,

,

In McNeely, the Supreme Court of Missouri had upheld the suppression of the blood evidence, but the suppression remedy was not addressed in the United States Supreme Court's opinion. See

___ U.S. at ___,

,

. Further, the Missouri Supreme Court had never construed Schmerber as allowing warrantless blood tests without a case by case showing of exigent circumstances. State v. McNeely,

(Mo. 2012). Therefore, Davis would not apply to the McNeely search.

8 A-5748-12T4 768 (1981), had been widely understood as permitting such

searches, the Court concluded that the exclusionary rule was not

an appropriate remedy for pre-Gant searches.

___

U.S. at ___,

,

.

The Court reasoned that, where the police acted in reliance on

established legal precedent, suppressing evidence would not

serve the purpose of the exclusionary rule to deter lawless

police conduct:

The question in this case is whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent. . . . The search incident to Davis's arrest in this case followed the Eleventh Circuit's [United States v.] Gonzalez[,

(11th Cir. 1996),] precedent to the letter. Although the search turned out to be unconstitutional under Gant, all agree that the officers' conduct was in strict compliance with then-binding Circuit law and was not culpable in any way.

Under our exclusionary-rule precedents, this acknowledged absence of police culpability dooms Davis's claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield "meaningfu[l]" deterrence, and culpable enough to be "worth the price paid by the justice system." The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis's Fourth Amendment rights deliberately, recklessly, or with gross negligence. Nor does this case involve any "recurring or systemic negligence" on the part of law enforcement. The police acted in strict compliance with binding precedent,

9 A-5748-12T4 and their behavior was not wrongful. Unless the exclusionary rule is to become a strict- liability regime, it can have no application in this case.

. . . .

About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn "what is required of them" under Fourth Amendment precedent and will conform their conduct to these rules. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public- safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than "'ac[t] as a reasonable officer would and should act'" under the circumstances. The deterrent effect of exclusion in such a case can only be to discourage the officer from "'do[ing] his duty.'"

That is not the kind of deterrence the exclusionary rule seeks to foster. . . . Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.

[Ibid. (citations omitted).]

In New Jersey, new State constitutional search and seizure

rules ordinarily are applied prospectively. "In cases where the

new rule is an exclusionary rule, meant solely to deter illegal

police conduct, the new rule is virtually never given

retroactive effect. The reason is that the deterrent purposes

of such a rule would not be advanced by applying it to past

10 A-5748-12T4 misconduct." State v. Burstein,

(1981); see

also State v. Earls,

(2013); State v. Purnell,

(1999); State v. Knight,

(1996); State v. Young,

(1981); State v.

McCann,

(App. Div. 2007); State v.

Skidmore,

(App. Div. 1992). Had

McNeely been decided by the New Jersey Supreme Court in

construing our State Constitution, it would not have been

applied retroactively -- thus reaching the same result as in the

federal system but by a different route.

The Court's recent decision in State v. Earls does not

compel a different result here. In Earls, the Court gave the

defendant the benefit of its ruling that, under the New Jersey

Constitution, "police must obtain a warrant based on a showing

of probable cause, or qualify for an exception to the warrant

requirement, to obtain tracking information through the use of a

cell phone."

. The Court

recognized that the holding was novel and law enforcement

officers could not have anticipated it.

. The Court

also acknowledged that "deterrence is rarely a basis to apply a

new rule retroactively,"

at 590 (citing

and

that retroactive application would substantially disrupt the

administration of justice. Id. at 591. In that context, the

11 A-5748-12T4 Court applied the rule "to defendant Earls and future cases

only."9 Ibid.; see also State v. Henderson,

(2011). Unlike Earls, in this case defendant's appeal did not

result in a new interpretation of our State Constitution, which

might justify giving him the benefit of the new rule; rather, he

simply invoked newly-decided federal case law which, in the

federal court system, would not benefit him.10

In our view, the real issue here is whether, given the

federal retroactivity requirement, we should, as the State

argues, apply an approach analogous to that set forth in Davis,

9 The Court also held that the warrant requirement would take effect thirty days after its decision to give the Attorney General time to issue guidance to state and local law enforcement.

10 Defendant's reliance on State v. Wessells,

(2012), is not persuasive. Wessells was not a Fourth Amendment search-and–seizure case and, not surprisingly, the opinion does not mention Davis. In Wessells, our Court applied a new Fifth Amendment ruling of the United States Supreme Court and determined, using "the ordinary federal retroactivity analysis,"

, that the defendant was entitled to the benefit of the federal ruling because he had not yet been tried. Under federal Fifth Amendment principles, "the coercive taint of the initial interrogation had not dissipated" when defendant made his later incriminating statements to the police, and, therefore, those statements were deemed "not voluntary."

No such considerations apply to the blood evidence here, which cannot be regarded as tainted or unreliable by virtue of the warrantless manner in which the police obtained it. See Sanchez-Llamas v. Oregon,

,

,

(2006) (noting that coerced confessions "tend to be unreliable").

12 A-5748-12T4 or whether, as defendant argues, the result here is dictated by

State v. Novembrino,

(1987), which rejected

a "good faith" exception to the application of the exclusionary

rule.

In Novembrino, our Court, in construing the State

Constitution, declined to follow the rule announced in United

States v. Leon,

,

,

(1984). Leon held that the exclusionary rule would not apply

where the police acted in objectively reasonable reliance on a

facially valid search warrant, which was issued by a judge but

was "ultimately found to be unsupported by probable cause."

,

,

.11 In adopting what it characterized as a "good-faith

exception for searches conducted pursuant to warrants," the Leon

Court reasoned that "the marginal or nonexistent benefits

produced by suppressing evidence obtained in objectively

reasonable reliance on a subsequently invalidated search warrant

cannot justify the substantial costs of exclusion."

,

, 82 L. Ed. at 698-99.

11 In Leon, the Court of Appeals held that the warrant was invalid because it was based on stale information from an informant, and did not sufficiently establish the informant's credibility. Id. at 904-05,

, 80 L. Ed. 2d at 686-87. The Supreme Court assumed, without deciding, that the warrant was invalid for lack of probable cause. Ibid.

13 A-5748-12T4 In declining to adopt the good faith rule, under the

auspices of the New Jersey Constitution,12 our Court

characterized Leon as solely concerned with deterring unlawful

police conduct:

The major premise of the Court's holding in Leon is that the exclusionary rule is not required by the fourth amendment but rather operates as "'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the person aggrieved.'" The opinion observes that in view of the rule's function as a deterrent of police misconduct, its application in particular cases "must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case-in-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective."

The majority, after citing examples of the Court's prior application of the cost- benefit analysis to the exclusionary rule, concluded that there is little likelihood that the exclusion of evidence obtained pursuant to a subsequently invalidated search warrant will have a deterrent effect on law-enforcement officers.

[Novembrino, supra,

(citations omitted).]

Our Court disagreed with Leon, emphasizing the critical

constitutional significance of the probable cause standard.

12 N.J. Const., art. I, ¶ 7.

14 A-5748-12T4 at 107-08. Indeed, much of the opinion is devoted to a

discussion of the probable cause standard and its central

importance to the warrant requirement.

. The

Court also observed that the defects in the Novembrino warrant

probably resulted from the hurried actions of an inexperienced

police officer.

. The Court concluded that

suppressing evidence seized pursuant to invalid warrants would

safeguard the integrity of the process by which warrants are

sought and issued. "Our view that the good-faith exception will

ultimately reduce respect for and compliance with the probable-

cause standard that we have steadfastly enforced persuades us

that there is a strong state interest that would be disserved by

adopting the Leon rule."

.

Our Court also took a broader view of the purpose of the

exclusionary rule:

Our concern . . . is with the Constitution and with the basic and fundamental guarantees that that document was intended to afford to all our citizens, particularly in times of public ferment. In our view, the citizen's right to be free from unreasonable searches and seizures conducted without probable cause is just such a fundamental principle, to be preserved and protected with vigilance. In our tripartite system of separate governmental powers, the primary responsibility for its preservation is that of the judiciary.

The exclusionary rule, by virtue of its consistent application over the past twenty-

15 A-5748-12T4 five years, has become an integral element of our state-constitutional guarantee that search warrants will not issue without probable cause. Its function is not merely to deter police misconduct. The rule also serves as the indispensable mechanism for vindicating the constitutional right to be free from unreasonable searches. Because we believe that the good-faith exception to the exclusionary rule adopted in Leon would tend to undermine the constitutionally-guaranteed standard of probable cause, and in the process disrupt the highly effective procedures employed by our criminal justice system to accommodate that constitutional guarantee without impairing law enforcement, we decline to recognize a good-faith exception to the exclusionary rule.

[Id. at 156-58 (footnote omitted).]

As an intermediate appellate court we are, of course, bound

by Novembrino. However, we do not believe that Novembrino

applies to the very different circumstances of this case, which

has nothing to do with invalid warrants or unlawful police

activity. In reaching that conclusion, we note that in very

limited circumstances, the Court has signaled that application

of the exclusionary rule may not always be appropriate where

applying the rule would not serve its well-understood purposes.

In State v. Harris,

(2012), the Court declined

to order the suppression of an illegal handgun seized during a

search authorized by a warrant properly issued pursuant to the

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35.

Unlike a warrant issued for a criminal investigation, a domestic

16 A-5748-12T4 violence warrant need not be issued on probable cause. However,

the Court reasoned that the gun was discovered and seized during

a "special needs search," conducted to protect a victim of

domestic violence and not for the purpose of uncovering evidence

of crime.

. Ordinarily, the fruits of such a search

may be admissible in a subsequent criminal prosecution, so long

as the search was conducted pursuant to a valid domestic

violence warrant and was not a mere pretext to uncover criminal

evidence.

at 585-86 (citing State v. Dispoto,

(2007)).

In declining to apply the exclusionary rule, however, the

Court further stated:

It is also appropriate to consider the purpose that undergirds the exclusionary rule. Almost inevitably, whether as the result of mistake, inadvertence, ignorance, or overzealousness, police can come into possession of evidence bearing on criminal activity without having complied perfectly with the constitutional requirement of probable cause. In response to this reality, courts have crafted the exclusionary rule, under which evidence seized illegally is suppressed. United States v. Calandra,

,

,

(1974); Handy, supra, 206 N.J. at 45-46. The purpose of the rule is two-fold: 1) to assure that the law does not provide an incentive for police misconduct and 2) to protect judicial integrity. Mapp v. Ohio,

,

, 1692- 94,

(1961); Elkins v. United States,

, 80

17 A-5748-12T4 S. Ct. 1437, 1444,

(1960). Here, there was no misconduct of any sort, no mistake in executing the warrant, and no disregard of its requirements. Consequently, to apply the exclusionary rule in this context would not further any of its purposes. We reach this conclusion in this limited, particular context, and we should not be understood at this juncture as retreating from our earlier rejection of the good faith exception. State v. Novembrino,

(1987).

[Harris, supra,

(emphasis added) (citing State v. Handy,

(2011)).]

The above-quoted language is readily applicable to this

case. Like Harris, and unlike Novembrino, here there was no

mistake by the police, good faith or otherwise. At the time of

the search, their conduct was lawful under well-established case

law in this State. See also State v. Domicz,

, 295-

96 (2006) (declining to characterize a thermal scan as "unlawful

conduct" by the police, when at the time of the scan, most

courts that had considered the issue had held that a thermal

scan was not a "search"). The police were not acting pursuant

to an invalidly-issued warrant which they mistakenly thought was

valid. Nor was there any unreasonable or improper conduct by

another State law enforcement employee involved in the search.

This case is not like State v. Handy, where a police

dispatcher negligently and inaccurately informed an officer that

18 A-5748-12T4 there was an outstanding warrant for the defendant.

. Handy was arrested, and a search

incident to the arrest yielded contraband.

. The

Court distinguished prior federal cases involving "an attenuated

clerical error in a database upon which police officials

reasonably relied."

. Instead, the Court found that

the dispatcher was "an active participant" in the chain of

events leading to the defendant's arrest.

. The

Court concluded that suppression "would have important deterrent

value, would underscore the need for training of officers and

dispatchers to focus on detail, and would serve to assure that

our own constitutional guarantees are given full effect."

. Cf. State v. Pitcher,

(App.

Div. 2005) (declining to suppress evidence where the police

officer stopped defendant's car based on a computer check of

Motor Vehicle records, which inaccurately indicated that the

car's owner had a suspended license).

Handy is not on point because, at the time the police

obtained the blood sample in this case, they were conducting

themselves in a manner sanctioned by decades of precedent from

our Supreme Court. No amount of additional police training

would have deterred the search in this case, because the police

were following the law as it existed at the time. As in Harris,

19 A-5748-12T4 suppressing the evidence would not serve the purpose of the

exclusionary rule to prevent illegal police conduct. Nor would

admitting the evidence involve the judiciary in what Handy

described as "'the taint of partnership in official

lawlessness.'"

(citation omitted).

While it could be argued that suppression would, in some

abstract sense, vindicate defendant's state and federal

constitutional right against illegal searches, it would do so at

a cost our Court has not always found justifiable.

Retroactivity analysis implicitly recognizes that, where

retrospective application of a new rule of law will inflict

major disruption on the criminal justice system, some defendants

will not get the benefit of the new rule even if it implicates

constitutional rights. Thus, in declining to give retroactive

application to new search and seizure rulings -- and to various

other criminal law rulings, see, e.g.,

, -- the Court necessarily deprives some defendants

of an avenue to vindicate newly-recognized rights.

In the very narrow circumstances presented here, we

conclude that Harris and by analogy, Davis, signal the correct

path to our decision. We recognize that there are doctrinal

differences between the reasoning in Davis and in Harris. For

example, Davis rested in part on the good faith exception

20 A-5748-12T4 articulated in Leon, which our Court rejected in Novembrino.

But at the heart of both opinions is the same core of common

sense.

"In this case, the State does not seek to admit the fruits

of unlawful police conduct since the police fully complied with

the law in effect at the time they acted."

.13 Consequently, application of the

exclusionary rule here would not serve the rule's principal

purposes articulated by our Court. It would not deter unlawful

police conduct, and it would not meaningfully safeguard the

integrity of our judicial process. It is one thing for our

courts to eschew involvement in admitting evidence seized

unlawfully. It is another thing entirely to exclude evidence

seized in conformity with the law as it existed at the time of

the seizure. Consequently, we reverse the trial court's order

suppressing the blood evidence.

In reaching this conclusion, we emphasize the unusual

circumstances of this case, where (a) the United States Supreme

Court issued a new search and seizure rule that was more

13 Skidmore involved a retroactivity analysis of State v. Hempele,

(1990), which held that police searches of curbside garbage required a warrant. Skidmore concluded that because Hempele represented a dramatic break with prior law, it would not be applied retroactively.

. Skidmore, therefore, did not reach the issue of whether the exclusionary rule would apply if the Hempele ruling were retroactive.

21 A-5748-12T4 restrictive than existing precedent from our Supreme Court; (b)

at the time the search was conducted, it was authorized by

settled precedent from our Supreme Court; and (c) had the new

rule been issued by our Supreme Court as an interpretation of

the New Jersey Constitution, it would not have been applied

retroactively.

[At the direction of the court pursuant to R. 1:36-2(a), the discussion addressing the defendant's appeal in Part II has been omitted from the published version of the opinion.]

Affirmed in part, reversed in part, and remanded for trial.

22 A-5748-12T4