State v. Witt __ NJ __ (2015) State v. William L. Witt (A-9-14) (074468) Argued April 14, 2014 -- Decided September 24, 2015

State v. Witt __ NJ __ (2015)

 State v. William L. Witt (A-9-14) (074468) 

Argued April 14, 2014 -- Decided September 24, 2015 

ALBIN, J., writing for a majority of the Court. 

 The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

In this appeal, the Court addresses the constitutional standard governing an automobile search and considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009). 

Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendant’s car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun. 

Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in violation of the New Jersey Constitution. Defendant’s sole argument was that the police did not have exigent circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car pass with its high beams on.  

The officer explained that a car must dim its high beams “as vehicles approach.” Thus, Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite searched defendant’s vehicle for “intoxicants,” he found a handgun in the center console. With Pena-Flores as its guide, the trial court found as follows: the officer had a right to stop defendant’s car based on an “unexpected” occurrence and had probable cause to search for an open container of alcohol, but did not have “sufficient exigent circumstances” to conduct a warrantless search. Accordingly, the court suppressed the handgun. 

       The Appellate Division granted the State’s motion for leave to appeal and affirmed the suppression of the gun “because of the utter absence of any exigency to support the warrantless vehicle search that occurred,” and “because there was no justification for this motor vehicle stop.” 435 N.J. Super. 608, 610-11 (App. Div. 2014). The panel declined to address the State’s argument that the exigent-circumstances test in Pena-Flores “should be replaced because it has proved to be unworkable and has led to unintended negative consequences,” explaining that, as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles.

The panel also agreed with defendant’s argument, raised for the first time on appeal, that Officer Racite did not have a reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.

The Court granted the State’s motion for leave to appeal.

HELD: The exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

1. Before addressing the parties’ arguments on the constitutional standard governing the search of defendant’s vehicle, the Court disposes of his challenge to the lawfulness of the stop. Defendant did not challenge the validity of the motor-vehicle stop before the trial court, but now claims that the filing of a motion to suppress under Rule 3:5-7(a) required the State to justify every aspect of the warrantless search, including the initial stop. The Court rejects defendant’s contention and concludes that the Appellate Division should have declined to entertain the belatedly raised issue. The Court reverses the Appellate Division on this point and holds that the lawfulness of the stop was not preserved for appellate review.  

2. Having addressed defendant’s challenge to the lawfulness of the stop, the Court turns to the constitutional standard governing the search of defendant’s vehicle. The automobile exception to the warrant requirement -- as defined by the United States Supreme Court in construing the Fourth Amendment -- authorizes a police officer to conduct a warrantless search of a motor vehicle if it is “readily mobile” and the officer has “probable cause” to believe that the vehicle contains contraband or evidence of an offense. Under federal law, probable cause alone satisfies the automobile exception to the warrant requirement. The federal automobile exception does not require a separate finding of exigency in addition to a finding of probable cause, as is the case in New Jersey. The overwhelming majority of states have adopted the federal approach to the automobile exception and do not require exigency beyond the inherent mobility of the vehicle.   

3. In State v. Alston, 88 N.J. 211 (1981), the Supreme Court of New Jersey upheld the constitutionality of the search of the defendants’ car based on the United States Supreme Court’s then-articulated automobile exception to the warrant requirement. In doing so, the Court stated that “the exigent circumstances that justify the invocation of the automobile exception are the unforseeability and spontaneity of the circumstances giving rise to probable cause, and the inherent mobility of the automobile stopped on the highway.” Id. at 233.

However, in State v. Cooke, 163 N.J. 657 (2000), the Court announced that, under Article I, Paragraph 7 of New Jersey’s State Constitution, the warrantless search of a vehicle could only be justified based on exigent circumstances in addition to probable cause. Pena-Flores reaffirmed the standard enunciated in Cooke, and declared that “the warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.” 198 N.J. at 28. The Court further set forth a multi-factor test to guide police officers in determining whether exigent circumstances excused the securing of a warrant, and encouraged the use of telephonic and electronic warrants as a means to meet the constitutional challenges of roadway stops.

4. In the wake of Pena-Flores, this Court created the Supreme Court Special Committee on Telephonic and Electronic Search Warrants, which issued a report in January 2010. The Committee concluded that safety and police resource concerns dictated that search-warrant applications be completed in no more than 45 minutes, with an ideal goal of 30 minutes. The Committee further outlined six steps to be taken in securing a telephonic search warrant when a police officer believes that there is probable cause to search. Thereafter, the Administrative Office of the Courts conducted two pilot programs. The first lasted only two months and yielded little usable data.

The second ran in Burlington County from September 2011 to March 2012. During that period, the State Police and local law-enforcement agencies filed 42 telephonic automobile search-warrant applications. The average request for an automobile warrant took approximately 59 minutes, from the inception of the call to its completion. Separately, the State Police reported to the Administrative Office of the Courts that Troop C applied for 16 telephonic search warrants, with the process taking, on average, 1.5 to 2 hours. The State Police also reported that since Pena-Flores, its state-wide consent to search requests rose from approximately 300 per year to over 2500 per year, and that its patrol policy is to exhaust the consent search option prior to making a determination to seek a warrant, telephonic or in-person.  

5. In State v. Shannon, 210 N.J. 225, 227 (2012), the Court declined the State’s request to revisit Pena-Flores, finding that the motor-vehicle data submitted by the State was insufficient “to establish the ‘special justification’ needed to depart from precedent.” However, the Court invited the parties to amass and develop a more thorough, statistical record relating to motor vehicle stops by the State Police and local authorities. Thereafter, the Office of Law Enforcement Professional Standards published a report entitled “The Effects of Pena-Flores on Municipal Police Departments.” The one firm conclusion reached by the report was that “after the Pena-Flores decision, there was a noticeable increase in consent to search requests for both municipal departments and the State Police; even with only a slight increase in the number of motor vehicle stops.”  

6. Resolution of the issue before the Court implicates the doctrine of stare decisis. Because stare decisis promotes consistency, stability, and predictability in the development of legal principles and respect for judicial decisions, a “special justification” is required to depart from precedent. That said, stare decisis is not an inflexible principle depriving courts of the ability to correct their errors. Among the relevant considerations in determining whether to depart from precedent are whether the prior decision is unsound in principle and unworkable in practice. The Court,  

therefore, turns to consider whether Pena-Flores is furthering the constitutional values that are protected by the New Jersey Constitution and whether there is “special justification” for departing from it.   

7. The use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as the Court expected when it decided Pena-Flores. Prolonged encounters on the shoulder of a crowded highway may pose an unacceptable risk of serious bodily injury and death to both police officers and citizens. Moreover, the seizure of the car and the motorist’s detention may be a greater intrusion on a person’s liberty interest than the search is on a person’s privacy interest. Finally, the dramatic increase in the number of consent searches since Pena-Flores is apparently an unintended consequence of that decision, reflecting the difficulty presented to police officers by the Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned about consent searches in such great numbers, particularly in light of the historic abuse of such searches and the coercive effect of a search request made to a motorist stopped on the side of a road. The Court, therefore, concludes that the current approach to roadside searches premised on probable cause places significant burdens on law enforcement without any real benefit to the public.  

8. Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores is unsound in principle and unworkable in practice, it does not adopt the federal standard for automobile searches because it is not fully consonant with the interests embodied in Article I, Paragraph 7 of the State Constitution. The Court returns to the Alston standard, which states that the automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. The Court’s decision limits the automobile exception to on-scene warrantless searches, unlike federal jurisprudence, which allows a police officer to conduct a warrantless search at headquarters merely because the officer could have done so on the side of the road.  

9. The Court’s decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal, Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-Flores no longer applies, and the standard set forth in Alston for warrantless searches of automobiles based on probable cause governs.  

The judgment of the Appellate Division isAFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion. 

JUSTICE LaVECCHIA, DISSENTING, expresses the view that the State has not shown a special justification to merit departure from settled law, and, therefore, stare decisis should prevail. Justice LaVecchia asserts that, contrary to the majority’s characterization, Cooke and Pena-Flores are not “unsound in principle,” and, further, the State has failed to show that the current law is “unworkable in practice.” 

Police should not have ordered driver out of car on traffic stop. State v. Keaton Decided August 3, 2015

Police should not have ordered driver out of car on traffic stop.  State v. Keaton Decided August 3, 2015

FERNANDEZ-VINA, J., writing for a unanimous Court.

 In this appeal, the Court considers the circumstances under which a law enforcement officer may legally enter a disabled vehicle to obtain the driver’s registration and insurance information without first requesting the driver’s permission or allowing the driver the opportunity to retrieve the documents himself.

In March 2009, New Jersey State Trooper William Jacobs was patrolling I-295 when he was called to the scene of an automobile accident. When he arrived, he saw a black sedan overturned in the median. Defendant Duran Keaton, the vehicle’s driver, had already been removed from the car and Emergency Medical Technicians (EMTs) were treating injuries to his face. In addition to ensuring the safety of the driver, clearing the scene, and restoring the flow of traffic, Trooper Jacobs was responsible for preparing a mandatory accident report. To complete the report, he was required to obtain the name of the driver, the vehicle’s registration, any insurance information, the vehicle identification number (VIN), the driver’s license number, and the owner’s address. The trooper did not ask defendant for the documents, but went to the overturned vehicle to obtain them.

Once inside the vehicle, Trooper Jacobs observed a handgun in an open backpack. He also saw a small bag of marijuana near the dashboard. He then located defendant’s identification, insurance information, and registration. Defendant was arrested and subsequently charged with multiple weapons offenses. Defendant filed a motion to suppress in which he asserted that the trooper’s entry into the vehicle indicated an intent to conduct a search of the vehicle, not merely an intent to retrieve the documents. He further asserted that the trooper should have spoken to him to discuss the vehicle’s ownership prior to entering the car. In response, the prosecution argued that the trooper satisfied the plain view exception to the warrant requirement and lawfully viewed the items seized. The trial judge denied defendant’s motion to suppress. The judge found the trooper’s testimony to be credible and concluded that he properly seized the gun and marijuana after discovering those items in plain view. The court noted that the trooper immediately recognized the handgun and marijuana as contraband and found that discovery of the contraband was inadvertent. Defendant entered a guilty plea and was sentenced to a four-year term of non-custodial probation, along with mandatory fees and penalties.

         Defendant subsequently appealed. On October 29, 2013, in an unpublished opinion, the Appellate Division reversed the trial court and held that the search of defendant’s car violated the Fourth Amendment. The panel held that the trooper could only enter the vehicle if defendant was “unable or unwilling” to produce his license and registration. Because defendant’s injuries were not life-threatening, the court found that the trooper should have: (1) afforded defendant the opportunity on his own, or with the help of another, to retrieve the documentation; (2) recovered the documents or information from defendant at the hospital; or (3) waited until defendant was released from the hospital to obtain the information. This Court granted the State’s petition for certification. 217 N.J. 588 (2014).

           HELD: The law enforcement officer was required to provide defendant with the opportunity to present his credentials before entering the vehicle. If after giving a defendant that opportunity, he or she is unable or unwilling to produce the registration or insurance information, only then may an officer conduct a search for those credentials. Here, because defendant was never provided with such an opportunity, the seizure of the contraband was unlawful under the plain view doctrine. Further, the community-caretaking doctrine was inapplicable because there was no need for an immediate warrantless search to preserve life or property.

        1. The Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution protect against warrantless searches. Police are required to obtain a warrant to conduct a search unless an exception to the warrant requirement applies. Here, the State argues that the plain view exception and the community-caretaking doctrine apply. Under the plain view exception, a police officer may seize evidence in plain view without a warrant if the officer is lawfully in the viewing area when he discovers the evidence and it is immediately apparent the object viewed is evidence of a crime, contraband, or otherwise subject to seizure. The officer must discover the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.   

2. Police officers who investigate a motor vehicle accident are required to complete an accident report. The Commission of Motor Vehicles (Commission) promulgates this report, which calls for sufficiently detailed information including the cause, the conditions then existing, the person and vehicles involved, if the parties were wearing seat belts or on cellular phones, and other information. The report must be forwarded to the Commission within five days after the investigation of the accident. A traffic violation may justify a search for things relating to that stop. If the vehicle’s operator is unable to produce proof of registration, the officer may search the car for evidence of ownership. Such a search must be reasonable in scope and tailored to the degree of the violation. A search to find the registration would be permissible if confined to the glove compartment or other area where registration might normally be kept in a vehicle.   

3. The Appellate Division considered facts and circumstances similar to those presented by this matter in State v. Jones, 195 N.J. Super. 119, 122 (App. Div. 1984). There, police arrived at the scene to find an overturned vehicle. Officers approached the defendant, who only received minor cuts and bruises, and requested he produce his license and vehicle identification. While able to produce his license, the defendant also indicated his vehicle credentials were still inside the overturned car. As such, one of the responding officers entered the car through the driver’s side door in order to obtain the necessary information. While inside the car, the officer observed an open toiletry bag, which was found to contain a vial filled with a white powdery substance and a razor blade. Suspecting the substance was cocaine, the officer seized the items.

The trial judge granted the defendant’s motion to suppress and the State appealed, contending the evidence was in the officer’s plain view and, therefore, he had a right to enter the automobile to search for proof of ownership and the insurance card. The Appellate Division affirmed the trial court’s suppression of the evidence, finding that a defendant’s constitutional right to privacy in his vehicle and personal effects cannot be subordinated to mere considerations of convenience to the police short of substantial necessities grounded in public safety. The panel noted the officer was obliged to make an accident report, but did not have a right to enter the car to search for the registration and insurance card before affording the defendant a reasonable opportunity to obtain them himself. Thus, under settled law, the warrantless search of a vehicle is only permissible after the driver has been provided the opportunity to produce his credentials and is either unable or unwilling to do so.   

4. Here, defendant was never provided such an opportunity. The trooper did not speak to defendant at the scene of the accident. The trooper never asked the EMTs for help in determining whether defendant was able to provide his credentials. Instead, the trooper made the decision to search defendant’s car for credentials only for the trooper’s convenience and expediency, without ever providing defendant the opportunity to present them. Defendant was never provided a reasonable opportunity to present his credentials, and therefore, the search of his vehicle cannot be justified under the plain view exception to the warrant requirement.

5. Further, under the inevitable discovery doctrine, in order to have otherwise inadmissible evidence admitted, the State is required to show: (1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of such evidence by unlawful means.

The State must offer clear and convincing evidence to sustain its burden. Here, the State has failed to demonstrate, by clear and convincing evidence, that law enforcement officials would have inevitably discovered the contraband in defendant’s vehicle. There is no evidence to suggest that the police intended to impound or inventory defendant’s vehicle. That logically indicates that the State did not demonstrate that proper, normal, and specific investigatory procedures would have been pursued in order to complete the investigation of the case.   

6. Finally, the State’s argument that the community-caretaking doctrine permitted the trooper to enter the vehicle to complete the accident report is also without merit. The community-caretaking doctrine is a narrow exception to the warrant requirement. Here, the trooper’s role as a community-caretaker did not permit him to conduct the search of defendant’s vehicle because the trooper’s statutory duty to prepare an accident report is not an exigent circumstance encompassed by the community-caretaker exception to the warrant requirement.  

The judgment of the Appellate Division isAFFIRMED.

State v. Adkins __ NJ __ (A-91-13) Decided May 4, 2015

State v.  Adkins  __ NJ __ (A-91-13)

  Decided May 4, 2015

LaVECCHIA, J., writing for a unanimous Court.

In this appeal, the Court considers the application of the United States Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw, for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.

In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.

McNeely, which held that the natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent circumstances before securing a sample of defendant’s blood without a warrant.

The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review, but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.

The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).

HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.

1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384 U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a warrant is typically required for the taking of blood, the officer might have reasonably believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable manner. Id. at 770-71.

2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol.

3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.” Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it will “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.” Id. at 412 (quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been established in a United States Supreme Court decision to a case pending review in New Jersey at the time the decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies retroactively to cases that were in the pipeline when it was decided.

4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court adheres to that test without any superimposed exception.

5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the circumstances to the events involved in the arrest. The exigency in these circumstances should be assessed in a manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant could be obtained, based on prior guidance from the Court that did not dwell on such an obligation, reviewing courts should focus on the objective exigency of the circumstances that the officer faced in the situation.

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.

Lawyer Had No Duty to Disclose Client's Indictable Offense State v. Kane docket App. Div. 2015 docket 12-07-0449 unreported decided February 17, 2015

Lawyer Had No Duty to Disclose Client's Indictable Offense  State v. Kane  docket App. Div. 2015 docket 12-07-0449  unreported  decided February 17, 2015  Before Judges Sabatino, Simonelli, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 12-07-0449.

Gretchen A. Pickering, Assistant Prosecutor, argued the cause for appellant (Robert L. Taylor, Cape May County Prosecutor, attorney; Edward H.S. Shim, Assistant Prosecutor, of counsel; Ms. Pickering, of counsel and on the brief).

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief).

PER CURIAM

This matter was previously before this court in 2013, resulting in an opinion in which we (1) noted that defendant had raised colorable claims of the ineffectiveness of her prior counsel in municipal court, and (2) remanded the matter to the Law Division for further development of the record in the context of an application for post-conviction relief ("PCR"). See State v. Kane, No. A-2725-12 (App. Div. Oct. 25, 2013).

After considering the testimony of six witnesses at the evidentiary proceeding on remand, the Law Division judge made credibility findings that were substantially favorable to defendant. The judge concluded in a detailed written opinion that defendant had been unconstitutionally deprived of the effective assistance of her first municipal counsel. In particular, the judge criticized that attorney for advising defendant to withdraw her guilty plea to a traffic offense under N.J.S.A. 39:3-40 for driving with a suspended license, thereby eliminating her double jeopardy protection and exposing her to prosecution for a fourth-degree offense under N.J.S.A. 2C:40-26(b) and a 180-day minimum jail sentence. As a remedy, the Law Division judge reinstated defendant's original municipal guilty plea under N.J.S.A. 39:3-40 and barred a prosecution of defendant under N.J.S.A. 2C:40-26(b) because of double jeopardy principles.

The State now appeals the Law Division's grant of relief to defendant. The State principally alleges that defendant's first municipal attorney engaged in fraud and in ethical violations by not alerting the municipal judge and the municipal prosecutor that his client's conduct could be subject to prosecution under N.J.S.A. 2C:40-26(b). For the reasons that follow, we reject the State's arguments and affirm the Law Division's disposition.

I.

The procedural history of the matter that led to our remand to the Law Division was set forth in our 2013 opinion

Defendant Davi F. Kane was arrested in Ocean City on January 25, 2012 for driving while on the suspended list. Defendant's vehicle had been stopped because she had been talking on a cell phone while driving. There is no contention that she was intoxicated at the time, or was committing a moving violation.

At the time of defendant's motor vehicle stop, she had been serving a ten-year suspension of her driver's license as a result of multiple prior convictions for drunk driving, N.J.S.A. 39:4-50.

On March 22, 2012, defendant, represented by counsel, entered into a plea agreement with the municipal prosecutor, in which she pled guilty to driving while on the suspended list, in violation of N.J.S.A. 39:3-40. A violation of that statute is a non-indictable offense, triggering mandatory imprisonment in the county jail for not less than ten days, but no more than ninety days. Ibid.

The municipal judge sentenced defendant to thirty days in jail, with the ability to serve that time intermittently, under an alternate incarceration program. In addition, the municipal judge imposed a one-year consecutive suspension of defendant's driver's license, plus various fines and court costs.

The original municipal plea was advantageous to defendant because her conduct was also in violation of N.J.S.A. 2C:40-26(b). That statute, which became effective on August 1, 2011, makes it a fourth-degree crime for a motorist to operate a vehicle at a time when his or her driver's license is suspended or revoked for a second or subsequent conviction for driving while intoxicated ("DWI"). In State v. Carrigan, 428 N.J. Super. 609 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013), we upheld the constitutionality of this new fourth-degree statute, allowing it to apply in circumstances where the underlying DWI suspensions were imposed prior to the statute's August 2011 effective date.

The reason that defendant's original plea was especially advantageous to her is that N.J.S.A. 2C:40-26(b) carries a mandatory minimum penalty of 180 days in prison. N.J.S.A. 39:3-40 is a lesser-included offense of N.J.S.A. 2C:40-26(b), because the elements of the former statute are subsumed among the elements of the latter. Pursuant to State v. Dively, 92 N.J. 573 (1983), if defendant's original guilty plea to the lesser offense in municipal court had not been vacated, the State would be precluded under Double Jeopardy principles from pursuing a fourth-degree indictment against defendant for the same conduct.

For reasons that [were] not explained in the record [on the first appeal], another attorney, who was associated with defendant's original counsel, appeared five days later before the municipal judge in the company of defendant and withdrew her guilty plea to the lesser offense. The municipal judge took no sworn testimony from defendant acknowledging that she was withdrawing her plea voluntarily. The only comment by defendant recorded in the transcript is her brief remark to the judge stating that she had paid $236 of the fines that had been previously imposed.

Subsequent to the withdrawal of defendant's municipal plea, she was indicted by the grand jury for the fourth-degree offense under N.J.S.A. 2C:40-26(b). She then appeared with the attorney who had withdrawn her initial guilty plea in the Law Division, and pled guilty to that more serious charge. In exchange, the State recommended that she be sentenced to the 180-day minimum under the statute.

On the day of sentencing before a different Law Division judge, defendant requested an opportunity to obtain new counsel. Thereafter, defendant's new attorney moved to withdraw her guilty plea to the fourth-degree offense. The Law Division judge declined that request, essentially because defendant had not asserted a colorable claim of innocence.

Defendant then moved for reconsideration, which the Law Division judge denied. The judge recognized that defendant had potentially viable Double Jeopardy and ineffectiveness arguments, but she directed that they be pursued separately in a future PCR. The judge then sentenced defendant to thirty days in the county jail, without explaining how that shorter sentence could comport with the 180-day minimum under N.J.S.A. 2C:40-26(b). Defendant's service of the jail sentence [was] stayed, however, pending the State's appeal.

[Kane, supra, slip op. at 3-6.]

In considering the State's appeal and defendant's cross-appeal in 2013 from the Law Division judge's original ruling, we made several key observations and determinations. As to the State's appeal, we acknowledged that the thirty-day sentence that the Law Division had imposed for the indictable offense under N.J.S.A. 2C:40-26(b) improperly conflicted with the 180-day mandatory minimum jail sentence required by the Legislature for that offense, assuming, for the sake of argument, that defendant's conviction of that offense was valid. Id. at 12. However, we also noted the State's frank acknowledgement in its 2013 brief that defendant's claims of her former counsel's ineffectiveness in allowing her to withdraw her municipal plea and thereby lose her double jeopardy protection "certainly seem to have some validity." Id. at 6.

In our 2013 opinion, we addressed the two-part constitutional test of ineffectiveness prescribed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984) (requiring proof that (1) counsel's performance was deficient and (2) the deficient performance actually prejudiced the accused's defense). Id. at 7. As to the second prong of Strickland concerning actual prejudice, we found it "readily apparent, as a matter of law, that if [defendant's] plea to [the] lesser-included [Title 39] offense had not been withdrawn, she would have been protected under the Double Jeopardy Clause from prosecution for the fourth-degree crime [under Title 2C]." Id. at 8; see also Dively, supra, 92 N.J. at 585-86. As to the first prong of the Strickland test concerning deficient performance, we expressed substantial concerns about why defendant's municipal counsel would have allowed her original guilty plea to be withdrawn. Id. at 9-10. In expressing those concerns, we suggested that the municipal prosecutor might not have initially recognized a potential for defendant's indictment under N.J.S.A. 2C:40-26(b), a statute that had been recently enacted. Id. at 10. Alternatively, we raised the possibility that "defendant's former [municipal] counsel may have been under a belief that he had some ethical obligation to have the plea vacated." Ibid.

Five witnesses were called by the defense at the remand hearing in the Law Division: defendant herself; defendant's initial attorney who appeared with her in municipal court on March 22, 2012 when she entered her guilty plea ("the first attorney"); the second attorney who appeared with defendant on March 27, 2012 when her guilty plea was withdrawn ("the second attorney"); the municipal prosecutor; and the municipal judge. The State presented one witness, the former municipal court employee1 who had been the "court recorder" for the proceedings on March 22, and 27, 2012.

The remand hearing revealed that defendant's withdrawal of her initial guilty plea in municipal court had been precipitated by oral communication between the municipal court staff and the first attorney. The court contacted the first attorney based on concerns that came to the attention of the municipal judge that the plea may have been, as the judge termed it, "illegal" because of the potential for prosecuting defendant for a fourth-degree indictable offense under N.J.S.A. 2C:40-26(b).2 Notably, the municipal prosecutor did not file an application with the court to have the Title 39 guilty plea vacated, nor did the prosecutor urge defendant's counsel to take steps to have that plea withdrawn. Instead, the municipal prosecutor candidly testified that he had told the second attorney that he had "made a mistake," and that defendant's case would qualify as an indictable offense under the criminal code. He further told the second attorney that he "was willing to live with the . . . terms of the plea that had first been presented under [N.J.S.A. 39:3-40]. . . . [and that he] was not doing anything to have that plea set aside." The municipal prosecutor also stated that, upon learning that defendant was returning to court to withdraw her guilty plea, it "confounded" him as to why she was doing that.

The first attorney acknowledged at the remand hearing that he had been aware of defendant's driving record at the March 22, 2012 hearing, having represented defendant on multiple prior occasions. He specifically acknowledged that he was aware that defendant's license had been under suspension at the time of her arrest due to previous convictions for DWI and for driving with a suspended license. He was aware of the criminal code amendments that made driving with a suspended license due to a prior conviction for driving while intoxicated a fourth-degree indictable offense. The first attorney also generally was aware of Dively, supra, 92 N.J. at 573, but he maintained that Dively, and the double jeopardy implications of defendant's case, were not in his "train of thought at the time."

The first attorney recalled receiving a communication from the municipal court after the March 22, 2012 hearing regarding defendant's case being "relisted" for further proceedings. Thereafter, he informed defendant by phone that he was unable to accompany her to court for the second hearing due to another court appearance that he could not avoid. The first attorney did not take any steps to discover why the court was scheduling a second hearing after defendant had already been sentenced, but he had "assumed" that the judge had decided to reject the plea, based on the applicability of the criminal statute.

The first attorney did not request a postponement or adjournment of the second hearing that ultimately occurred on March 27, 2012. He also testified that he never had a conversation with the second attorney, whom defendant herself arranged, about the case. On that point, the first attorney acknowledged that he should have discussed the case with the second attorney prior to the March 27 hearing.

The first attorney further testified that, although he had filed a notice of appearance in municipal court, he never filed a substitution of attorney, nor did he receive a substitution from another attorney. In his mind, he testified, it was "acceptable" to him that the second attorney appeared on his behalf at the March 27 hearing, although he said that he learned of that attorney's appearance only after the fact, upon reading the hearing transcript. Although he did not explicitly acknowledge as much, the first attorney's testimony fairly suggested that he was aware that he was still the attorney of record for defendant on March 27, 2012.

The second attorney testified at the remand hearing that, at defendant's request, he agreed to "stand in" for the first attorney, who could not appear at the March 27, 2012 hearing due to a schedule conflict. At that March 27 hearing, the second attorney entered his appearance on behalf of the first attorney rather than on behalf of defendant, specifically presenting himself "on behalf of [the first attorney] representing[] State v. Kane in this matter." The second attorney testified, contrary to the first attorney, that he did have a brief conversation with the first attorney regarding defendant's case.

The second attorney contended that the first attorney had called him prior to the March 27 hearing, and that they had a "[v]ery, very short conversation," in which the first attorney allegedly informed the second attorney of his scheduling conflict and told the second attorney that he had "already spoken to the prosecutor." The second attorney further testified that the first attorney told him to "just withdraw [defendant's] guilty plea."

After arriving at the municipal court on March 27, 2012, the second attorney had a brief conversation with the municipal prosecutor, a conversation which he described as follows

I went up to the prosecutor, asked him if he could fill me in as to what was going on. He told me that he had spoken to [the first attorney] about the matter. The police had charged her with the wrong offense and that was just about all he was going to tell me on that. It was very brief.

After his conversation with the prosecutor, the second attorney then told defendant that he did not "think that it [was] a good idea . . . to withdraw her plea at this time," without going into detail as to his reasons. He described the conversation as follows

I told [defendant] that I didn't think it was a good idea [to withdraw her guilty plea]. And she told me I wasn't there to think; I was to do what her attorney wanted me to do. So we approached . . . the judge and put it on the record.

Thereafter, the second attorney withdrew defendant's guilty plea. As the second attorney recalls it, and the municipal transcript confirms, defendant was not placed under oath before or during the plea withdrawal. The second attorney acknowledged that he withdrew defendant's plea despite his reservations about doing so. He further acknowledged that he withdrew defendant's plea because he felt that it was defendant's desire to withdraw the plea that day, based on her comment about doing "what her attorney wanted [him] to do" and based on the fact that he felt he was not "in the loop" and was just "[f]ollowing [the first attorney's] orders." After defendant's guilty plea had been withdrawn at the March 27 hearing, the second attorney observed that defendant appeared "upset."

In his remand testimony, the second attorney suggested that he knew of the indictable offenses under N.J.S.A. 2C:40-26(b), but he expressed uncertainty as to whether he was actually aware of the penalties under that statute at the time of the March 27, 2012 hearing. In addition, the second attorney acknowledged that March 27, 2012 was the first occasion on which he had ever withdrawn a plea in his legal career.

In her own testimony at the remand hearing, defendant related the circumstances surrounding the withdrawal of her municipal guilty plea at the March 27, 2012 hearing. Defendant testified that her first attorney had called her on the telephone within one or two days after the March 22, 2012 hearing and told her that "there's been a mistake and [that] I had to return back to Ocean City Court and take back my guilty plea." Defendant stated that the first attorney told her that "they would issue a warrant for my arrest" if she did not comply.

Defendant subsequently learned from the first attorney that he could not accompany her to the second hearing because he said that he had to be in another court for another matter. Defendant thus asked an attorney in the same law firm where defendant also had worked, to accompany her, to which he agreed.

Immediately before the March 27 hearing, defendant and the second attorney had a conversation in which that attorney expressed that he was not comfortable withdrawing defendant's guilty plea, because defendant had already been sentenced. Her remand testimony suggests that she was led to believe that if she withdrew her municipal guilty plea, her case "would get sent to the grand jury," although she maintained that she and the second attorney did not discuss the potential penalties of withdrawing her municipal plea.

At the March 27 hearing, the municipal prosecutor informed the court that the second attorney was making a motion to vacate defendant's municipal guilty plea, and that he had "no objection" to this course of action. The municipal prosecutor further suggested, without clearly indicating, that defendant would be charged with an indictable offense, which he described "is what should have happened." The municipal judge addressed the second attorney only to ask him whether he was in agreement, to which counsel indicated that he was, although it is not clear precisely to what he was agreeing.

As we have previously noted, the municipal judge did not address defendant at the March 27 withdrawal hearing. The only time that defendant spoke in court on the record on that date was at the conclusion of the hearing, when she inquired about the $236 in fines that she had already paid, which the judge indicated should be returned to her.

According to defendant's remand hearing testimony, it was not until the hearing in the Law Division on September 6, 2012, when she entered a guilty plea on the indictment, that she realized that she could go to jail. Although she remembered entering a guilty plea under oath before the Law Division judge who was then presiding, defendant did not understand that the consequences of that guilty plea involved 180 days in jail. At the remand hearing, defendant acknowledged initialing and signing the plea form, and that the Law Division judge had asked her questions about that form. Defendant also asserted in her testimony that the second attorney did not review the plea form with her in detail.

The testimony presented by the State from the municipal court recorder reflects that, at some point on March 22, after defendant had pled guilty to the Title 39 violation, she raised with the municipal judge the issue of whether defendant should have instead been prosecuted for the fourth-degree offense under the new criminal code provision. As the court recorder recalled it, that discussion prompted other discussions involving the judge, although she did not participate in those conversations. The municipal judge's own testimony was substantially in accord with the court recorder's recollections.

In a written opinion dated July 30, 2014, Judge Patricia M. Wild found that the first attorney, but not the second attorney, had provided ineffective assistance of counsel in representing defendant. The judge found that neither the first nor the second attorney had advised defendant of the penal consequences, specifically the 180-day mandatory minimum sentence, to which she would be subject if she pled guilty to, or was convicted of, a violation of N.J.S.A. 2C:40-26(b). The judge also noted that both the first attorney and the second attorney represented defendant free of charge.

As to the first attorney, the judge made several key factual observations. She found that he "did not understand the sentencing consequences of a conviction under [N.J.S.A. 2C:40-26(b)]." In response to the directly-conflicting testimony between the first and second attorney as to whether they had spoken with each other prior to defendant's March 27, 2012 municipal plea withdrawal hearing, the judge found the second attorney's testimony credible and believed that such a conversation, albeit brief, had occurred.

The judge determined that the first attorney "demonstrated unreasonable professional judgment" in his representation of defendant, by "abandon[ing] his client at a critical time in the proceedings[.]" Specifically, the judge cited the fact that the first attorney "failed to request an adjournment of the March 27, 2012 hearing, did not appear at the hearing, and did not arrange to have competent counsel appear on his behalf." In addition, the judge found that the first attorney failed to provide defendant with information that would have allowed her to make an informed decision about withdrawing her municipal guilty plea, specifically the "double jeopardy implications of further proceedings" and the "potential penal consequences" if she were to be charged under the criminal statute.

As to the second attorney, the judge factually determined that he had "consistently expressed his concern" to defendant "as to the wisdom of withdrawing her [guilty] plea," and had, in fact, counseled defendant not to withdraw her plea. The judge also found that the second attorney was not aware of the consequences, either the double jeopardy implications or the penal consequences, of withdrawing defendant's municipal guilty plea, until the Law Division hearing in September 2012. The judge also found it significant that the second attorney had stated his appearance at the March 27, 2012 hearing as being "on behalf of [the first attorney]."

Based on these factual findings, Judge Wild concluded that the second attorney had not provided ineffective assistance of counsel to defendant. Because the first attorney remained defendant's attorney of record at the March 27, 2012 hearing, he, rather than the second attorney, had breached his duty of diligence and of communication with defendant. Specifically, Judge Wild found

This case comes down to the following. Effective counsel would have requested an adjournment of either the municipal matter or the Superior Court matter and would have appeared with [defendant] at Municipal Court on March 27, 2012. Effective counsel would have told [defendant], "You have a good deal in municipal court and you are not required to withdraw your plea; you should not withdraw your plea and if you do, you will be subject to indictment in Superior Court and, if you plead guilty to or are found guilty of the indictable charge, you will be required to spend a minimum of 180 days in jail." [The first attorney] knew all of this. [The first attorney] did not tell [defendant] any of this. Instead, he abandoned her, resulting in her representation by a relatively inexperienced, though well-intentioned, attorney. Effective counsel would never have abandoned his client.

The judge further found that the second attorney "was hampered in giving advice" to defendant due to the first attorney's failure to give "effective advice" to defendant on the implications of withdrawing her plea, particularly because the judge found that the first attorney "obviously left [defendant] with the belief that she had no alternative other than to withdraw her municipal court plea."

Citing the court's "broad power" to fashion a remedy, Judge Wild therefore vacated defendant's guilty plea and conviction under Indictment No. 12-07-0449, thereby dismissing that matter on the grounds of double jeopardy. The judge additionally vacated defendant's withdrawal of her guilty plea to the municipal complaint, thereby reinstating defendant's guilty plea to that complaint and reinstating the sentence initially imposed by the municipal judge in municipal court.

II.

In its present appeal, the State argues that the trial court erred in granting defendant PCR and in reinstating her original municipal guilty plea and sentence for a violation of N.J.S.A. 39:3-40. The State mainly alleges that defendant's guilty plea was the product of fraud, that her first attorney acted unethically in not advising the municipal judge and the municipal prosecutor that defendant was an offender subject to indictment under N.J.S.A. 2C:40-26(b), and because defendant had not demonstrated the "actual prejudice" second prong of the Strickland test for ineffectiveness. We reject these arguments and affirm the trial court's order, substantially for the sound reasons articulated in Judge Wild's detailed written opinion. We add only a few comments.

There is insufficient evidence in the record to establish that defendant's original guilty plea was procured by fraud or unethical behavior on the part of defense counsel. Defendant's driving abstract was available to the municipal judge and the municipal prosecutor, and was apparently consulted by the court at or prior to the March 22, 2012 plea hearing. The abstract should have readily revealed that defendant was on the revoked list because of a second or subsequent DWI conviction and thus her current driving record posed a violation of N.J.S.A. 2C:40-26(b).

To be sure, N.J.S.A. 2C:40-26(b) was a relatively new statute as of March 2012, and it is conceivable that the court and the municipal prosecutor may not have been well-attuned to its potential application in DWI cases. Nevertheless, we reject the State's claim that defense counsel was obligated under R.P.C. 3.3(a)(5) or other ethical rules to spotlight the statute's potential application adverse to his client's interests. The situation here is markedly distinguishable from In re Seelig, 180 N.J. 234 (2004), in which a defense attorney affirmatively misled a municipal judge about the facts in a vehicular case, i.e., whether the victims had died. As the municipal prosecutor honestly acknowledged here, it was his responsibility to be aware of the Title 2C provision's potential applicability, and to refrain from participating in the entry of a guilty plea to a lesser charge that would have double jeopardy implications for a future prosecution for an indictable offense. The fact that the municipal prosecutor accepted that the original plea was his mistake and decided not to file an application or pursue means to have the plea vacated speaks volumes. There was no "fraud" or unethical behavior by the defense here. Instead, as Judge Wild aptly found, defendant's first attorney was deficient in advising her to withdraw the plea to her detriment without explaining to her the consequences of that course of action. Even giving all due respect to the court and cooperating with its request to have the case relisted, a proper advocate for defendant would have politely resisted the efforts to have the plea withdrawn. In addition, as Judge Wild found, the first attorney, as counsel of record, failed to provide proper guidance to the second attorney and ensure that defendant's rights at the March 27, 2012 hearing were not sacrificed.

There also was nothing "illegal" about defendant pleading guilty to the Title 39 violation as a lesser-included offense of N.J.S.A. 2C:40-26(b). See, e.g., State v. Hessen, 145 N.J. 441, 452 (1996) (noting that the decision "to offer a plea bargain to a lesser included offense" implicates "prosecutorial authority and discretion").

The State's contention that the second prong of Strickland is not satisfied here requires no extensive discussion. R. 2:11-3(e)(2). As we recognized in our first opinion, the actual prejudice to defendant stemming from these unfortunate circumstances is manifest. The first attorney's improvident decision to have defendant withdraw her guilty plea to the municipal charges, especially since her guilt of driving on the suspended list was clear, surely was prejudicial to her in losing her double jeopardy protection. See Dively, supra, 92 N.J. at 586.

Affirmed.

1 The employee now works for the State judiciary.

2 In his testimony, the municipal judge did not specify why he was concerned about the legality of the plea, but it appears from the context that the concerns stemmed from the possibility of an indictable offense.