1

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the 

Clerk for the convenience of the reader. It has been neither reviewed nor approved by the 

Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Rafael Camey (A-73-17) (080574)

Argued January 2, 2019 -- Decided August 1, 2019

LaVECCHIA, J., writing for the Court.

The Court reviews two key pre-trial determinations involving the DNA evidence 

from defendant Rafael Camey, who stands charged with murder. First, the trial court 

ruled the results of a buccal swab that had been excluded on the basis of invalid consent 

inadmissible under either of the State’s inevitable discovery arguments. Second, the trial 

court also applied an inevitable discovery analysis in rejecting the State’s application to 

take a second buccal swab from defendant. The second determination raises a novel 

question: Under what circumstances, if any, may the police apply to conduct a new 

search for immutable evidence like DNA? Is a suspect’s DNA off-limits to law 

enforcement for all time if an initial search was invalid? Or, are there situations in which 

law enforcement may seek a new buccal swab to examine a person’s DNA?

On September 30, 2013, the Passaic Police Department received a 9-1-1 report of 

a brutally beaten body of a woman, later identified as “Katie,” in a wooded area near a 

river bank behind a ShopRite store. Sergeant Bordamonte, the lead detective in the 

matter, was familiar with “Tina,” a prostitute, who placed the 9-1-1 call. Bordamonte 

interviewed Tina, who said that Katie was “the new girl on the block” and that she saw 

Katie with a person she described as a “violent Mexican male” on the night before 

Katie’s death. Tina said that she had been choked by the same man during a paid sexual 

encounter. She also said that the man had assaulted another woman.

Police obtained a statement from Katie’s husband, who stated that Katie was a 

prostitute and drug addict who would “disappear for days at times.” Later, Bordamonte 

learned that Katie’s husband had been arrested for aggravated sexual assault and 

kidnapping and that there had been a domestic violence incident between him and Katie.

Over the next weeks, the police interviewed Tina again, as well as other people 

who knew Katie. The police also interviewed and took, with consent, buccal swabs from 

numerous individuals who were in the vicinity of where Katie’s body was found. On 

October 20, 2013, Tina called police to report that she saw the violent male. Police 

responded to her location, where Tina made an on-scene identification of defendant.
2

The next night, officers went to a bar that defendant frequented after his work shift 

and detained him. A detective advised defendant of his Miranda rights and interviewed 

him in Spanish, his native language, but presented him with a consent form for a buccal 

swab printed in English. After defendant signed the untranslated form, another detective 

took a buccal swab from defendant and released him. Several weeks later, Bordamonte 

sent defendant’s DNA sample, along with the approximately twenty other samples 

collected from local homeless individuals, to the State Police Laboratory for testing.

On June 25, 2014, the State Police notified Bordamonte that DNA found on 

Katie’s body matched defendant’s DNA profile. That day, defendant was placed under 

arrest and charged with felony murder, murder, and aggravated sexual assault.

During pre-trial applications, the trial court was required to evaluate defendant’s 

consent to the buccal swab. The court determined that the consent obtained from 

defendant was invalid and ordered suppression of the DNA test results from that swab, 

holding that the swab was the product of an illegal detention, the consent form presented 

to defendant was written in English and never translated for defendant into his native 

Spanish, and defendant was never informed of his right to refuse or that the DNA would 

be sent to a police lab for analysis in a criminal investigation.

Thereafter, the trial court also rejected the State’s further argument that the swab’s 

results were admissible under the inevitable discovery exception to the exclusionary rule. 

The court followed the formulation of that doctrine adopted for use in New Jersey in 

State v. Sugar, 100 N.J. 214 (1985) (Sugar II). The court determined that the State failed 

to show that proper, normal and specific investigative procedures would have been 

pursued. The court noted there was “little urgency” and “little use of legal process” 

throughout the investigation and referenced Bordamonte’s “infrequent use of the legal 

process,” throughout his career. The court further pointed to other investigatory failings 

or shortcomings, citing as “shocking” the failure to interview defendant’s roommates or 

co-workers regarding his whereabouts on the night of the murder, and the failure to seek 

a search warrant for the home of Katie’s husband, despite his criminal history, including 

his prior incident of domestic violence involving the victim.

The court rebuffed the State’s argument that it would have inevitably obtained 

defendant’s DNA because police are statutorily required to take a DNA sample from 

persons arrested for certain enumerated violent crimes including sexual assault (with 

which defendant was charged here). Because defendant was arrested primarily based on 

the illegally obtained DNA sample, the court would not allow the State to rely on an 

arrest based on those DNA results to justify the taking of another swab. Moving on to the 

State’s application to compel defendant to provide a new buccal swab under Rule 3:5A, 

the trial court denied the motion. The court concluded that the application must also be 

evaluated under inevitable discovery and held that the doctrine’s application already had 

been rejected by the court.
3

The Appellate Division affirmed on interlocutory appeal, and the Court granted 

the State’s motion for leave to appeal. 234 N.J. 6 (2018).

HELD: The Court affirms the suppression of DNA evidence from the first buccal swab. 

The trial court’s thorough and detailed reasons for denying admission of this evidence, 

under either of the State’s two inevitable discovery arguments, are clearly sustainable on 

appeal. However, the State’s application for a second buccal swab calls for a remand for 

further proceedings consistent with this opinion and its new test, derived in part from 

aspects of the independent source doctrine: To apply for a new buccal swab for DNA 

evidence under Rule 3:5A, the State must demonstrate probable cause for the new search. 

That showing may include evidence that existed before the initial invalid search, but 

cannot be tainted by the results of the prior search. In addition, to deter wrongdoing by 

the police, the State must show by clear and convincing evidence that the initial 

impermissible search was not the result of flagrant police misconduct.

1. A buccal swab is a common method to collect specimen material for DNA testing. 

But it is also a “search,” and must be obtained in a manner consistent with constitutional 

search and seizure principles for valid use in a criminal prosecution. To pass muster, a 

search must be conducted pursuant to a search warrant or must fall within an exception to 

the warrant requirement. Obtaining voluntary consent to conduct a buccal swab is one 

way to obtain a constitutionally valid swab without a search warrant. Another means for 

obtaining a swab is to utilize judicial authority to compel a suspect to submit to an 

investigative detention. Pursuant to Rule 3:5A-1, investigative detention orders can 

compel a defendant “to submit to non-testimonial identification procedures for the 

purpose of obtaining evidence of that person’s physical characteristics.” Rule 3:5A-4 

provides the substantive standards for issuance of such an order. (pp. 17-20)

2. Whereas consent can serve as an exception to the warrant requirement, the inevitable 

discovery doctrine under Sugar II can preserve the admissibility of evidence obtained 

without a warrant or a valid exception to the warrant requirement. The Court agrees with 

the trial court’s determination that inevitable discovery was the correct prism through 

which to evaluate the State’s request to avoid exclusion of the DNA results from 

defendant’s illegal buccal swab. While no published New Jersey opinion has applied the 

inevitable discovery doctrine to immutable DNA evidence, many other states have. The 

Court rejects arguments that DNA identification evidence is exempt from an inevitable 

discovery analysis merely because it reveals uniquely identifying information about an 

individual’s identity. The trial court and Appellate Division here correctly determined 

that the doctrine could be used to evaluate DNA evidence. (pp. 21-27)

3. The Court also agrees with the trial court’s application of the inevitable discovery 

standard to defendant’s buccal swab and has no difficulty affirming its findings, which 

were based on the determination that the State failed to meet the first prong of the Sugar 

II test by clear and convincing evidence. The State argues that police either would have 
4

applied for a search warrant or an investigative detention to obtain a buccal swab from 

defendant or would have acted on its probable cause to arrest him. But the events of the 

actual investigation suggest otherwise, as the trial court found. (pp. 27-30)

4. The trial court also used an inevitable discovery analysis to parse the State’s 

application under Rule 3:5A for an order to take a new buccal swab and rejected the 

request essentially for the reasons already given in its previous inevitable discovery 

ruling. The Court is unconvinced that an inevitable discovery framework is correct in 

these circumstances. The doctrine generally addresses completed searches that cannot be 

replicated. A key factor in the trial court’s decision here was its perception that the State 

was seeking to obtain through legal means the same evidence that it had earlier obtained 

unlawfully. But DNA is not an item like guns, drugs, or documents. A new DNA 

sample might provide the same information as the original sample, but each sample is 

evidence in its own right -- and the exclusionary rule bars the use of the same evidence

that was illegally obtained or “poisoned fruit” evidence that would not have been 

discovered but for the initial, illegally obtained evidence. The State’s request to compel a 

new sample must therefore be viewed for what it truly is: a request to obtain a new 

buccal sample -- new evidence -- notwithstanding that it will lead to the same uniquely 

identifying information that DNA provides. A properly issued judicial order under Rule

3:5A-4 should be available to law enforcement, on the right terms. (pp. 30-33)

5. The Court fashions a standard tailored for the unique nature of DNA evidence and a 

fair assessment of whether a second buccal swab sample should be allowed. The test is

derived in part from aspects of the independent source doctrine, as set forth in State v. 

Holland, 176 N.J. 344, 360-62 (2003). Noting that flagrancy is a high bar that requires 

active disregard of proper procedure, or overt attempts to undermine constitutional 

protections, the Court adopts the following test: First, the State must demonstrate that 

probable cause exists to conduct the new search. The court should look at the showing 

advanced by the State to demonstrate probable cause. The evidence may involve the 

same evidence that existed at the time of the illegal search. Thus, Tina’s statements and 

her identification of defendant are not off-limits. Second, the court should determine 

whether the State’s showing of probable cause is untainted by the results of the prior 

search. Here, that means that the probable cause must be independent of the information 

obtained through the results from the prior swab. Third, to deter wrongdoing by the 

police, the Court requires the State to show by clear and convincing evidence that the 

initial impermissible search was not the result of flagrant police misconduct. The Court 

notes that a buccal swab is minimally intrusive and stresses that it is considering only a 

Rule 3:5A application which addresses minimally intrusive identification procedures. 

The Court remands to allow the State to demonstrate whether it can meet the standard 

announced. Because the original judge made extensive credibility determinations about 

the witnesses before the court, as well as about Tina, who was not before the court, the 

Court refers this matter to the Assignment Judge for assignment. (pp. 33-36)
5

The judgment of the Appellate Division is AFFIRMED IN PART and 

REVERSED IN PART, and the matter is REMANDED for further proceedings.

JUSTICE ALBIN, dissenting, expresses the view that there is no basis to reverse 

the trial court’s suppression order and to remand before a different judge, because the 

State cannot prove by clear and convincing evidence that the police officers did not 

engage in flagrant misconduct when they unlawfully detained Camey three times, 

unlawfully interrogated him, and unlawfully secured a buccal swab without his consent. 

Justice Albin notes that the trial court properly applied the inevitable discovery doctrine 

-- the theory presented by the State at the suppression hearing -- and that its factfindings 

must be accorded deference. Justice Albin also explains that the majority’s retreat from 

Holland’s rigorous independent source test -- the test for determining whether a “seizure 

of evidence was independent of, and untainted by, earlier illegal police misconduct” --

diminishes the deterrent effect of the exclusionary rule. In Justice Albin’s view, allowing 

the State to rely on the same evidence to establish probable cause permits the police a doover after a failure to adhere to constitutional dictates.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA,

SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. JUSTICE 

ALBIN filed a dissent.
1

SUPREME COURT OF NEW JERSEY

A-73 September Term 2017

080574

State of New Jersey,

Plaintiff-Appellant,

v.

Rafael Camey,

Defendant-Respondent.

On appeal from the Superior Court, 

Appellate Division.

Argued

January 2, 2019

Decided

August 1, 2019

Lila B. Leonard, Deputy Attorney General, argued the 

cause for appellant (Gurbir S. Grewal, Attorney General,

attorney; Lila B. Leonard, of counsel and on the brief, 

and Christopher W. Hsieh, Chief Assistant Passaic 

County Prosecutor, on the brief). 

Stefan Van Jura, Deputy Public Defender, argued the 

cause for respondent (Joseph E. Krakora, Public 

Defender, attorney; Stefan Van Jura, of counsel and on 

the brief, and Laura C. Sutnick, Designated Counsel, on 

the brief). 

Alexander Shalom argued the cause for amicus curiae 

American Civil Liberties Union of New Jersey (American 

Civil Liberties Union of New Jersey Foundation, 

attorneys; Alexander Shalom, Tess Borden, Edward 

Barocas, and Jeanne LoCicero, on the brief).
2

JUSTICE LaVECCHIA delivered the opinion of the Court.

In this case, defendant Rafael Camey stands charged with murder. The 

police discovered the victim’s lifeless body behind a supermarket in Passaic 

and swabbed it for DNA evidence. The victim had been brutally beaten and 

was partially disrobed; the cause of her death was blunt force trauma and 

drowning.

The ensuing investigation led the police to search for a particular violent 

individual with whom the victim had been seen. To try to solve the crime, the 

police swabbed multiple individuals for DNA including defendant. His DNA 

profile matched the DNA found in the victim. In this interlocutory appeal, we 

review two key pre-trial determinations involving the DNA evidence from 

defendant.

First, after the trial court granted defendant’s motion to suppress DNA 

results from a buccal swab obtained on the basis of invalid consent, which the 

State no longer contests, the State sought admission of the excluded DNA 

results on the basis of inevitable discovery. The State argued that it could 

have obtained a buccal swab from defendant under N.J.S.A. 53:1-20.20 or 

through an application for investigative detention under Rule 3:5A-4. The trial 

court agreed to employ an inevitable discovery analysis and ruled the results 
3

from that buccal swab inadmissible under either inevitable discovery 

argument. The Appellate Division affirmed the suppression of the results from 

that swab.

Second, the State filed a separate application under Rule 3:5A-4 to take 

a second buccal swab from defendant. The court again turned to the 

framework of an inevitable discovery analysis and rejected the application. 

The Appellate Division again affirmed.

Like the trial court and the Appellate Division, we hold that the police 

violated the Fourth Amendment in the way they obtained defendant’s DNA. 

As a result, the results from that search cannot be used.

DNA evidence, however, is immutable. It is unlike a completed search 

of a home in which the police already removed contraband -- a search that 

cannot be repeated. After a person is swabbed for DNA, of course, his DNA 

remains intact. It will be the same ten years from now as it was several years 

ago. The application for a second buccal swab from defendant calls into 

question the standard to which the State should be held when making an 

application for a judicially sanctioned swab as part of an investigative 

detention, see R. 3:5A-4, after the State’s previous swab -- secured through an 

unconstitutional search and seizure -- was excluded. Notwithstanding the 

immutability of DNA information, the second buccal swab does not lose its 
4

character as a second search and seizure merely because the new buccal 

evidence will provide the same uniquely identifying information available 

from an individual’s DNA that the initial buccal evidence provided. 

The appeal thus raises a novel question: Under what circumstances, if 

any, may the police apply to conduct a new search for immutable evidence like 

DNA? Is a suspect’s DNA off-limits to law enforcement for all time if an 

initial search was invalid? Or, are there situations in which law enforcement 

may seek a new buccal swab to examine a person’s DNA? 

We conclude that a traditional inevitable discovery “look-back” analysis 

for alternative reasoning to support admission of already-seized evidence is a 

poor fit for the analysis needed in these circumstances. Instead, we draw from 

the independent source doctrine to analyze the question and frame an 

appropriate test. To apply for a new buccal swab for DNA evidence under 

Rule 3:5A, we conclude that the State must demonstrate probable cause for the 

new search. That showing may include evidence that existed before the initial 

invalid search, but the showing cannot be tainted by the results of the prior 

search. In addition, to deter wrongdoing by the police, the State must show by 

clear and convincing evidence that the initial impermissible search was not the 

result of flagrant police misconduct. The approach adopted protects a 
5

suspect’s constitutional rights and recognizes the legitimate public interest in a 

fair assessment of whether a second buccal swab sample should be allowed.

In sum, we affirm the suppression of DNA evidence from the first buccal 

swab. We hold that the trial court’s thorough and detailed reasons for denying 

admission of this evidence, under either of the State’s two inevitable discovery 

arguments, are clearly sustainable on appeal. However, the State’s application 

for a second buccal swab calls for a remand. We vacate the Appellate 

Division’s affirmance of the denial of the State’s application to take a new 

buccal swab from defendant and remand for further proceedings consistent 

with this opinion and the new test set forth herein.

I.

The pertinent facts from the pre-trial applications and related evidential 

proceedings involve the State’s investigation into the death of a woman whose 

body was discovered in a secluded area of Passaic and the narrowing of the

investigation to defendant.

A little after 6:00 p.m. on September 30, 2013, the Passaic Police 

Department received a 9-1-1 report of a body in a wooded area near a river 

bank behind a ShopRite store. Sergeant Bordamonte, the lead detective in the 

matter, testified that the deceased -- later determined to be a woman named
6

Katie1-- had been “beaten very, very brutally” and was partially disrobed. An

autopsy revealed that the cause of death was blunt force trauma and drowning.

Bordamonte was familiar with Tina, the person who placed the 9-1-1 

call. The police knew she was a prostitute who frequented the area where 

Katie’s body was located and that she had provided useful information in other

police investigations.

Bordamonte interviewed Tina the day after Katie’s body was found. 

Tina told Bordamonte that Katie was “the new girl on the block” and that she 

saw Katie with a person she described as a “violent Mexican male” (the violent 

male) at about 11:00 p.m. on the night before Katie’s death. Tina said that she 

had been choked by the same man during a paid sexual encounter. She also 

said that the man had assaulted another woman, Ashley, and that a friend,

Dennis, would be better able to describe this man because Dennis “definitely 

knows who he is.”2 Bordamonte showed Tina photographs from the police 

database and later drove her around in the hope that she might recognize the 

man she recalled seeing with Katie. Neither effort produced an identification,

and Tina agreed to contact the police if she saw the man again. According to 

 

1 We have assigned fictitious names to many individuals discussed herein, 

including the victim, her husband, and the informant.

2

 Those statements were not borne out in independent interviews of Ashley 

and Dennis.
7

Bordamonte, Tina appeared to be under the influence of an intoxicating 

substance during this initial interview.

Later that day, police obtained a statement from Katie’s husband,

Martin. According to Martin, Katie was a prostitute and drug addict. He said

that he had not seen her for one or two days and that it was not uncommon for 

her to “disappear for days at times.” Bordamonte later learned, through a 

criminal history search, that Martin had been arrested for aggravated sexual 

assault and kidnapping and that there had been a domestic violence incident 

between him and Katie.

Three days after finding Katie’s body, Bordamonte conducted a second 

interview with Tina in which she repeated that she last saw Katie with the 

violent male the night before her body was found. During this interview, Tina

again appeared to Bordamonte to be under the influence of drugs.

That same day, police officers conducted on-scene interviews with 

approximately sixteen homeless individuals who were in the vicinity of where 

Katie’s body was found and from whom the police received consent to take 

buccal swabs. None of the individuals whom the police interviewed and 

swabbed were able to provide information related to Katie’s death. 

Beforehand, police had administered buccal swabs to at least four other 

homeless individuals who were in the area near where Katie’s body was found.
8

On October 8, 2013, police interviewed a friend of Katie’s, Penny, who 

reported that Katie and Martin were having “marital problems.” Penny also 

stated that, on the night before Katie’s body was found, she saw her with a 

man named Richard and she believed Richard was involved in the murder 

because he had not been back since that night. Richard was subsequently

interviewed, and he confirmed that he saw Katie the night before her body was 

found. Others interviewed by Bordamonte included a woman who reported 

that she had acted as a lookout for Katie while Katie had a sexual encounter 

with a Polish man the day she was killed. According to this report, Katie and 

that man were alone for a long time.

On October 18, 2013, Tina was interviewed for a third time. She 

reiterated that she last saw Katie walking away from others toward a more 

secluded area with the so-called violent male and added that the “rumor in the 

street” was that someone called “Blaze” killed Katie.

3

 Two days after this 

interview, Tina called police to report that she saw the violent male about 

whom she had been telling them. Police responded to her location, where Tina

made an on-scene identification of defendant by pointing him out.

 

3

 At the suppression hearing, Bordamonte could not confidently confirm that 

Tina was under the influence of drugs during the October 18 interview, unlike 

his observations from earlier interviews, but he stated that her behavior that 

day suggested that she may have been.
9

Thus, despite the investigation leading in various directions, by October 

21, 2013, defendant was a person of interest in the investigation into Katie’s 

murder. That night, officers went to a bar that defendant frequented after his 

work shift and detained him. Detective Alex Flores advised defendant of his 

Miranda4rights and interviewed him in Spanish, his native language. Flores 

also presented defendant with a consent form for a buccal swab printed in 

English. After defendant signed the untranslated form, another detective took 

a buccal swab from defendant and released him.

Several weeks later, on January 13, 2014, Bordamonte sent defendant’s

DNA sample, along with the approximately twenty other samples that the

police had collected from local homeless individuals, to the State Police 

Laboratory for testing. Bordamonte testified that he waited so he could submit 

the samples in a single group, conceding that the submission “was a touch 

delayed.”

On March 18, 2014, Tina provided police with another formal statement, 

this time shortly after her incarceration, during which she was drug-free. This

statement was consistent with her previous statements regarding Katie and the 

violent male. Also, after viewing photographs depicting eighteen of the

twenty individuals who had either consented to buccal swabs or been

 

4 Miranda v. Arizona, 384 U.S. 436 (1966).
10

interviewed as part of the investigation, Tina picked out defendant as the 

violent male she had described.

On April 8, 2014, police brought defendant in for a second interview.

Detective Reinaldo Arroyo read defendant his Miranda rights in Spanish and 

repeated them, upon defendant’s request, before conducting the interview. 

Defendant was released at the end of that interview.

On June 25, 2014, the State Police notified Bordamonte that DNA found 

on Katie’s body matched defendant’s DNA profile. That day, defendant was 

brought to police headquarters, was read his Miranda rights in Spanish, and 

spoke with police for several hours. He was placed under arrest at the 

conclusion of that interview and charged with felony murder, N.J.S.A. 2C:11-

3(a)(3); murder, N.J.S.A. 2C:11-3(a)(1); and aggravated sexual assault, 

N.J.S.A. 2C:14-2(a)(6).

II.

During pre-trial applications, the trial court was required to evaluate

defendant’s consent to the buccal swab. The court already had ordered the 

suppression of defendant’s three statements, which the State does not contest 

on appeal. With respect to the buccal swab, the court determined that the 

consent obtained from defendant was invalid and ordered suppression of the

DNA test results from that swab. The court held that the swab was the product 
11

of an illegal detention, the consent form presented to defendant was written in 

English and never translated for defendant into his native Spanish, and

defendant was never informed of his right to refuse or that the DNA would be 

sent to a police lab for analysis in a criminal investigation.

Thereafter, the trial court also rejected the State’s further argument that 

the swab’s results were admissible under the inevitable discovery exception to 

the exclusionary rule. The court followed the formulation of that doctrine

adopted for use in this State in State v. Sugar, 100 N.J. 214 (1985) (Sugar II), 

which has a three-pronged test that the State must satisfy by clear and 

convincing evidence.

The court determined that the State failed to show that proper, normal 

and specific investigative procedures would have been pursued, rejecting, in 

particular, the State’s assertion that Bordamonte would have applied for a 

search warrant for defendant’s DNA had defendant denied consent. In 

reaching that conclusion, the court reasoned that although Bordamonte 

collected DNA samples from twenty “homeless males” and several other 

people by the time detectives obtained defendant’s DNA on October 21, 2013,

the swabs were not taken to the lab until January 13, 2014. The court noted 

there was “little urgency” and “little use of legal process” throughout the 

investigation and referenced Bordamonte’s “infrequent use of the legal 
12

process,” throughout his career.

5

 The court further pointed to other 

investigatory failings or shortcomings as reinforcing the conclusion that police 

would not have obtained a warrant for DNA. For example, the court cited as 

“shocking” the failure to interview defendant’s roommates or co-workers 

regarding his whereabouts on the night of the murder, and the failure to seek a 

search warrant for the home of Katie’s husband, Martin, despite his criminal 

history, including his prior incident of domestic violence involving the victim.

The court added that, even if Bordamonte had applied for a warrant or a 

Rule 3:5A investigative detention order when taking the buccal swab from 

defendant, the court “would have been very concerned as to whether the 

application met the standard required.” Among other things, the court cited

credibility concerns attributed to Tina’s criminal history and her substantial 

narcotics impairment at the time of two of her statements relied on by the 

State.

To the extent that the State argued that it would have inevitably obtained 

defendant’s DNA because police are statutorily required to take a DNA sample 

from persons arrested for certain enumerated violent crimes under N.J.S.A. 

53:1-20.20, including sexual assault (with which defendant was charged here),

the court rebuffed the argument. Explaining that defendant was arrested 

 

5 The court also relied on a past internal investigation involving Bordamonte.
13

primarily based on the illegally obtained DNA sample, the court would not

allow the State to rely on an arrest based on those DNA results or his 

suppressed statements to justify the taking of the swab sample. The court also

questioned whether Tina, who had not appeared in court, had sufficient

credibility to support an arrest based on her claim that she had been assaulted 

by defendant in the past.

Moving on to the State’s application to compel defendant to provide a 

new buccal swab under Rule 3:5A, the trial court denied the motion. The court 

concluded that the application must also be evaluated under inevitable 

discovery and held that the doctrine’s application already had been rejected by 

the court.

The State filed an interlocutory appeal from both rulings, which the 

Appellate Division granted. The Appellate Division stated that the trial court’s 

“detailed and well-reasoned oral decision” was consistent with Sugar II and 

properly considered whether Bordamonte would have obtained a search 

warrant, rather than whether he could have. Noting that an appellate court is

not at liberty to supplant the trial court’s credibility determinations with its 

own “merely because [it] might have reached a different conclusion,” the 

appellate court affirmed the trial court. The Appellate Division held that, “in 

light of the record and the judge’s detailed conclusions,” the trial court did not 
14

abuse its discretion in suppressing the results of the first buccal swab, denying 

the State’s motion to admit the evidence under inevitable discovery, and

denying the motion to compel a second buccal swab also under an inevitable 

discovery analysis.

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

234 N.J. 6 (2018). We also granted leave to appear as amicus curiae to the 

American Civil Liberties Union -- New Jersey (ACLU).

III.

The State maintains before this Court that it has shown by clear and 

convincing evidence that the evidence from the first buccal swab would have 

been inevitably discovered under the three-prong test set forth in Sugar II.

With regard to the denial of its application under Rule 3:5A to take a 

second buccal swab, the State argues that it has probable cause to collect 

defendant’s DNA today “based [in part] on the robust investigation the police 

conducted” before obtaining defendant’s DNA sample on October 21, 2013. 

Regardless of any alleged constitutional violation in connection with obtaining 

the first swab, the State argues that defendant should not be permitted to 

“suppress his identity.”

Defendant maintains that the State failed to satisfy the Sugar test and 

largely relies on the trial court’s findings and reasoning. Defendant also 
15

disputes that the State could have obtained defendant’s DNA pursuant to 

N.J.S.A. 53:1-20.20. And, in response to the State’s argument that defendant 

cannot “suppress his identity” in connection with an application for a second 

buccal swab under Rule 3:5A and otherwise, defendant reasons that DNA is 

“something of evidentiary value” and, as “identity-related evidence,” it can be 

suppressed just like other evidence.

The ACLU emphasizes that the State established only that it was 

plausible -- not that it was inevitable, as required under Sugar -- that 

Bordamonte would have applied for a warrant to search defendant had police 

not performed an invalid consent search. It urges that we not disturb the trial 

court’s determinations about Bordamonte’s credibility as a witness or second 

guess the evidence the court considered in making the determination about 

what he would have done. More fundamentally, the ACLU challenges the use 

of inevitable discovery in this setting. It contends police officers would have 

no incentive to seek warrants even when they have probable cause to search if 

they could simply argue inevitable discovery later.

The ACLU also argues that the leading inevitable discovery cases 

require an inevitable discovery despite -- not simply in the absence of -- the 

unlawful behavior. In this case, the ACLU maintains that the application for a 

judicial warrant to take a second buccal swab would not have occurred despite
16

the unlawful buccal swab. The ACLU reasons that, because the lawful process 

that “would have” resulted in inevitable discovery was not independent from 

the unlawful process that actually was pursued, any use of the inevitable 

discovery doctrine in this matter should be invalid.

IV.

A.

The Fourth Amendment to the United States Constitution and Article I, 

Paragraph 7 of the New Jersey Constitution protect individuals from 

unreasonable searches and seizures. State v. Gathers, 234 N.J. 208, 219 

(2018). “Those provisions impose a standard of reasonableness on the 

exercise of discretion by government officials to protect persons against 

arbitrary invasions.” State v. Chisum, 236 N.J. 530, 544-45 (2019) (quoting 

State v. Maristany, 133 N.J. 299, 304 (1993)). In balancing an intrusion 

against the promotion of legitimate governmental interests when performing a 

reasonableness analysis, the balance generally is struck “in favor of the 

procedures described by the Warrant Clause of the Fourth Amendment.” State 

v. O’Hagen, 189 N.J. 140, 149 (2007) (quoting Skinner v. Ry. Labor Execs.’ 

Ass’n, 489 U.S. 602, 619 (1989)).

The warrant requirement interposes a neutral magistrate between the 

police officer and the person against whom the search is directed, unless the 
17

search falls within a recognized exception to the warrant requirement. See

State v. Sullivan, 169 N.J. 204, 210 (2001). Evidence that is seized in 

violation of the warrant requirement, and any recognized exception to it, is

excluded as a general rule. Ibid.

Those very basic principles provide the starting point to our analysis.

B.

This appeal concerns the taking of a buccal swab from defendant, which 

produced nontestimonial DNA identification information about defendant. 

This is a unique category of evidence. 

DNA evidence is extremely useful for identification purposes in criminal 

prosecutions as well as for exonerations. See Dist. Attorney’s Office for the

Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009) (“DNA [evidence] has 

an unparalleled ability both to exonerate the wrongly convicted and to identify 

the guilty. It has the potential to significantly improve both the criminal 

justice system and police investigative practices.”). The United States 

Supreme Court has stated that the difference between using DNA analysis and 

fingerprint databases to identify a suspect “is the unparalleled accuracy DNA 

provides.” Maryland v. King, 569 U.S. 435, 451 (2013). As a result, “the 

utility of DNA identification in the criminal justice system [has become]
18

undisputed.” Id. at 442. Our own case law recognizes as much. See State v. 

Sterling, 215 N.J. 65, 103-04 (2013); see also O’Hagen, 189 N.J. at 163.

Presently, all fifty states require the collection of DNA for certain -- if 

not all -- felony convictions. King, 569 U.S. at 445; see, e.g., 34 U.S.C. §

12592 (creating federal index to facilitate law enforcement exchange of DNA 

identification information); N.J.S.A. 53:1-20.20 (requiring collection of DNA 

upon conviction of certain crimes and upon arrest for a limited set of 

enumerated offenses). Thus, in New Jersey, and other jurisdictions, law 

enforcement uses the collection of DNA as an important tool in identification.

A buccal swab is a common method of law enforcement collection of 

specimen material for DNA testing. But, it is also beyond dispute that the 

taking of a buccal swab “for the purposes of obtaining a DNA sample is a 

‘search.’” O’Hagen, 189 N.J. at 149 (citing Skinner, 489 U.S. at 616-17); 

accord Gathers, 234 N.J. at 221. And because a buccal swab constitutes a 

search, it must be obtained in a manner consistent with constitutional search 

and seizure principles for valid use in a criminal prosecution.

To pass constitutional muster, a search must be conducted pursuant to a 

search warrant or must fall within an exception to the warrant requirement. 

See Sullivan, 169 N.J. at 210. “One well-recognized exception to the warrant 

requirement is consent.” State v. Cushing, 226 N.J. 187, 199 (2016) (citing
19

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). Obtaining voluntary 

consent to conduct a buccal swab is one way to obtain a constitutionally valid 

swab without a search warrant. To ensure validity, warnings given to an 

individual informing about the right to refuse consent help the State later carry 

its burden to demonstrate that the consent was truly a voluntary, knowing, and 

intelligent waiver of the right to be free of such an intrusion. See State v. 

Johnson, 68 N.J. 349, 354 (1975).

Another means for obtaining a swab is to utilize judicial authority to 

compel a suspect to submit to an investigative detention, which is the 

functional equivalent of an application for issuance of a search warrant. See

State v. Hall, 93 N.J. 552, 557-59 (1983) (recognizing judicial authority to 

authorize investigative detentions founded on the Judiciary’s constitutional 

authority governing search and seizure). Taking a lead from the United States 

Supreme Court in Davis v. Mississippi, 394 U.S. 721, 727-28 (1969), our 

Court concluded that for certain detentions, which are minimally intrusive,

produce reliable evidence, and can be effected “without abuse, coercion or 

intimidation,” the proofs required for an investigative detention order need not 

rise to probable cause. Hall, 93 N.J. at 561-62; accord In re Alleged 

Aggravated Sexual Assault of A.S., 366 N.J. Super. 402, 409-10 (App. Div. 

2004).
20

Court rules now formalize the guidelines for issuance of an order for 

investigative detention to compel lineups, fingerprinting, and other minimally 

intrusive identification procedures. See State v. Rolle, 265 N.J. Super. 482, 

486 (App. Div. 1993). Pursuant to Rule 3:5A-1, investigative detention orders 

can compel a defendant “to submit to non-testimonial identification procedures 

for the purpose of obtaining evidence of that person’s physical characteristics.” 

Rule 3:5A-4 provides the substantive standards for issuance of such an order: 

An order for an investigative detention shall be issued

only if the judge concludes from the application that:

(a) a crime has been committed and is under 

active investigation, and

(b) there is a reasonable and well-grounded basis 

from which to believe that the person sought may 

have committed the crime, and

(c) the results of the physical characteristics 

obtained during the detention will significantly 

advance the investigation and determine whether 

or not the individual probably committed the 

crime, and

(d) the physical characteristics sought cannot 

otherwise practicably be obtained.

[R. 3:5A-4.]
21

C.

Our analysis in this matter begins from the vantage point of the trial 

court’s foundational finding that defendant’s initial buccal swab was taken 

through invalid consent -- a finding that the State does not dispute. Rather, the 

State claims the results of that swab should be admitted on the basis of 

inevitable discovery.

Whereas consent can serve as an exception to the warrant requirement, 

the inevitable discovery doctrine can preserve -- if certain conditions are 

satisfied -- the admissibility of evidence obtained without a warrant or a valid 

exception to the warrant requirement. Specifically, the inevitable discovery 

doctrine allows for the admission of evidence obtained through law 

enforcement’s unconstitutional conduct if that evidence would have been 

discovered in the absence of that unlawful conduct. See Nix v. Williams, 467 

U.S. 431, 444-48 (1984). Inevitable discovery tempers the “social costs 

associated with the exclusionary rule” by placing “police in the same position 

that they would have been in had no police misconduct occurred.” Sugar II, 

100 N.J. at 237.

The doctrine is rooted in the deterrent goal of the exclusionary rule. To 

promote that objective, the exclusionary rule prevents the prosecution from 

being in a better position than if the illegal conduct had not taken place; it is 
22

not meant to punish the prosecution by putting it in a worse place. Id. at 236-

37. Considered a narrow exception to the exclusionary rule, our standard for 

allowing evidence on the basis of inevitable discovery requires the State to 

demonstrate, by clear and convincing evidence, id. at 240, that

(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 the 

discovery of the evidence; and (3) the discovery of the 

evidence through the use of such procedures would 

have occurred wholly independently of the discovery of 

such evidence by unlawful means.

[Id. at 238.]

Our standard for inevitable discovery does not require “the State [to]

demonstrate the exact circumstances of the evidence’s discovery.” State v. 

Maltese, 222 N.J. 525, 552 (2015) (quoting State v. Sugar, 108 N.J. 151, 158 

(1987) (Sugar III)). Rather, “[t]he State need only present facts or elements --

proving each such fact or element by a preponderance of the evidence -- that in 

combination clearly and convincingly establish the ultimate fact and lead to 

the conclusion that the evidence would be inevitably discovered.” Sugar III, 

108 N.J. at 159. That said, the doctrine cannot be used to elide the warrant 

requirement. Sugar II specifically warned against that. 100 N.J. at 240 n.3 

(stating that when illegal conduct “consists simply of the failure to obtain a 
23

search warrant, the exception should not be applied to circumvent the warrant 

requirement . . . or to defeat the deterrent purposes espoused in the 

exclusionary rule” (citing Nix, 467 U.S. 431; United States v. Griffin, 502 

F.2d 959 (6th Cir. 1974); Commonwealth v. Benoit, 415 N.E.2d 818 (Mass. 

1981))).

V.

With that general background in mind, we review first the trial court’s 

use of the inevitable discovery doctrine to evaluate the State’s request to avoid 

exclusion of the DNA results from defendant’s illegal buccal swab.

We agree with the trial court’s determination that inevitable discovery 

was the correct prism through which to analyze the unique immutable 

nontestimonial identification evidence that was obtained in this case. The

immutable nature of the evidence does not exempt it from the analytic 

framework that controls for inevitable discovery. First, nothing about our 

decisions in Sugar or any other related case suggests that the exclusionary rule 

and its exceptions do not apply with equal force to evidence based on mutable 

and immutable characteristics. Indeed, the Supreme Court’s decision in Davis

indicates that the exclusionary rule applies to both forms of evidence. 394

U.S. at 724 (discussing fingerprint evidence). And, no decision -- federal or 
24

state -- has ruled that an inevitable discovery analysis may not be used with 

respect to such evidence.

While no published New Jersey opinion has applied the inevitable 

discovery doctrine to DNA evidence -- an immutable characteristic -- many 

other states have engaged in such an analysis using the standard.

For example, in People v. Diaz, police obtained blood and hair samples 

from the defendant -- who was accused of sexual assault -- without a search 

warrant even after he refused to voluntarily provide the samples. 53 P.3d 

1171, 1173 (Colo. 2002) (en banc). After determining that taking the samples 

without a warrant was an illegal search and did not meet any exception to the 

warrant requirement, the Supreme Court of Colorado undertook an inevitable 

discovery analysis and held that the evidence was not admissible under the 

doctrine because the prosecution failed to show “that an independent police 

investigation was being conducted, or that the police would have inevitably 

discovered the evidence through such an investigation despite their 

misconduct.” Id. at 1175-76.

Similarly, in the Louisiana decision State v. Lee, police obtained a 

subpoena duces tecum authorizing the taking of a buccal swab from the 

defendant in the course of an investigation into the serial rape and killing of 

multiple women. 976 So. 2d 109, 120-21 (La. 2008). The Supreme Court of 
25

Louisiana determined that a subpoena duces tecum was insufficient to obtain 

the sample legally and concluded that the buccal swab taken from the 

defendant was an illegal warrantless search. Id. at 124-27. Nonetheless, the 

court undertook an inevitable discovery analysis and determined that the swab 

was admissible. Id. at 131.

The extensive police investigation in Lee demonstrated to the Supreme 

Court of Louisiana that “the State satisfied its burden of showing by a 

preponderance of the evidence there was a parallel and independent 

investigation unrelated to the illegal search that would have inevitably and 

legally yielded defendant’s DNA.” Ibid. The court described the multiple 

leads that the investigating police department had, independent of the illegal 

buccal swab, that would have inevitably led them to legally obtain a buccal 

swab from the defendant. Id. at 128-31. The court pointed to facts that 

showed that the police and other investigating agencies were diligently 

pursuing multiple independent leads based on DNA found at the crime scenes, 

a composite sketch which bore a striking resemblance to the defendant, a 

description of a car seen at one of the crime scenes belonging to the 

perpetrator, and multiple telephone tips. Ibid. The court explained that the 

police were actively working with the other agencies such as crime lab experts 

and a serial killer task force to solve the murders prior to receiving the results 
26

of the defendant’s buccal swab. Ibid. For those reasons, the court’s evaluation 

led it to conclude that the necessary proofs for inevitable discovery were 

present. Id. at 131. The Supreme Court of Florida reached a similar result 

with respect to a blood sample obtained from the person last seen with a 

murder victim on the ground that, even if, as the defendant argued, the initial 

sample had been illegally obtained through coerced consent, the independent 

and preexisting investigation into the defendant would inevitably have led to a 

sample being legally taken. Fitzpatrick v. State, 900 So. 2d 495, 514 (Fla. 

2005).

Diaz and Lee are illustrative of the universe of cases that demonstrate 

that courts have been using an inevitable discovery framework to consider 

otherwise excluded immutable evidence as a matter of course.6 We reject the 

arguments advanced before us that DNA identification evidence is exempt 

from an inevitable discovery analysis merely because it reveals uniquely 

identifying information about an individual’s identity. The trial court and 

 

6 See, e.g., United States v. Cherry, 759 F.2d 1196, 1207 (5th Cir. 1985) 

(applying inevitable discovery to illegally obtained fingerprints because law 

enforcement had uncovered, independent of the prior misconduct, sufficient

incriminating evidence against the defendant to give rise to probable cause for 

his arrest, upon which the police would have eventually acted and thus 

lawfully obtained the defendant’s fingerprints).
27

Appellate Division here correctly determined that the doctrine could be used to 

evaluate DNA evidence. 

As for the trial court’s application of the inevitable discovery standard to 

defendant’s buccal swab, we agree with that also.

We have no difficulty affirming the trial court’s detailed findings, which 

were based on the determination that the State failed to meet the first prong of 

the Sugar II test by clear and convincing evidence. The State argues that 

police either would have applied for a search warrant or a Rule 3:5A 

investigative detention to obtain a buccal swab from defendant or would have 

acted on its probable cause to arrest him. But the events of the actual 

investigation suggest otherwise, as the trial court found. Once Bordamonte 

and the other officers involved illegally obtained defendant’s buccal swab, the 

investigation slowed to a virtual halt. The State concedes that the police had 

zeroed in on defendant as a primary suspect and that they were fully aware that 

DNA evidence would be the lynchpin of this case. Yet, Bordamonte testified 

that he did not send defendant’s DNA to the lab for almost three months, 

during which time officers received no new information or investigative leads.

Even after Bordamonte sent defendant’s DNA to the lab, investigators 

failed to question defendant’s co-workers and roommates to ascertain his 

whereabouts on the night of Katie’s murder or to corroborate Tina’s story. 
28

They also never sought to obtain a search warrant for Katie’s husband’s home, 

despite learning about his past criminal history and domestic violence against 

Katie.

The trial court found particularly troubling for the State’s inevitable 

discovery analysis Bordamonte’s failure to utilize legal processes to lawfully 

obtain critical information. Although the police could have applied for the 

investigative detention of defendant under Rule 3:5A or a search warrant, the 

test under Sugar II is whether the police would have made the applications. 

We will not disturb the trial court’s findings; in an appeal, we defer to findings 

that are supported in the record and find roots in credibility assessments by the 

trial court. State v. Locurto, 157 N.J. 463, 471-72 (1999). Here, Bordamonte 

took no affirmative steps to secure legal process, making this case unlike State 

v. Johnson, 120 N.J. 263, 290 (1990).

7

 See also State v. Premone, 348 N.J. 

 

7

 In Johnson, the Court held that the fruits of a search conducted on the basis 

of illegal consent were admissible under the inevitable discovery doctrine. 120 

N.J. at 290. There, a detective was preparing a search warrant for the 

defendant’s bedroom at the same time as interrogating officers obtained an 

illegal confession and consent from the defendant to search the bedroom. Id.

at 289. At that time, the detective had typed one-and-a-half pages of the 

affidavit for the warrant and suspended his typing efforts only after the 

defendant consented to the search. Ibid. On that record, the Court determined 

that had the interrogating officers not illegally obtained the defendant’s 

consent for a search, the detective would have completed the search warrant he 

was in the process of preparing, that the application would have been granted, 

and that the officers would have inevitably exercised the warrant and found the 

evidence. Id. at 290.
29

Super. 505, 510, 515 (App. Div. 2002) (refusing to apply inevitable discovery 

where the State argued it could have obtained the information through a search 

warrant but had not taken steps in that direction).

Nor can the State prevail on its argument that it would have obtained a 

buccal swab by relying on probable cause to arrest defendant for the assault on 

Tina and allegedly other women, according to her. Again, the State did not 

take any steps during the weeks it was waiting for the DNA testing to come 

back from the lab to respond to Tina’s claims that defendant was dangerous. 

Our standard of proof requires that the State carry its burden by clear and 

convincing evidence in order for otherwise excluded evidence to be allowed in 

through inevitable discovery. Sugar II, 100 N.J. at 240. We are unpersuaded 

by the State’s arguments that it has met that high standard.8 In sum, for the 

reasons stated, there is no basis for disturbing the findings and conclusion of 

the trial court, affirmed by the Appellate Division, that the State has not 

 

8

 The State relies on the Seventh Circuit case Sutton v. Pfister to support its 

contention that N.J.S.A. 53:1-20.20 -- which requires arrestees for certain 

offenses to provide DNA -- is sufficient to satisfy the inevitable discovery 

doctrine in this case. 834 F.3d 816, 822 (7th Cir. 2016). We find the State’s 

analogy unpersuasive as the Seventh Circuit follows the federal inevitable 

discovery standard, which imposes a preponderance of the evidence burden on 

the State. Id. at 821. The New Jersey standard, as set out in Sugar II, requires 

the State to overcome a higher, clear and convincing burden of proof. 100 N.J. 

at 240.
30

proven that the results of defendant’s buccal swab should be allowed in 

through inevitable discovery.

VI.

A.

Finally, we turn to the State’s application under Rule 3:5A for an order 

to take a new buccal swab. The trial court used an inevitable discovery 

analysis to parse this request, commenting in so doing that the request was 

coming very late in the investigatory proceedings -- approximately three and 

one-half years after the discovery of Katie’s body. We observe that the State 

did not argue for the application of any other test. And, as noted, the court 

rejected the request essentially for the reasons already given in its previous 

inevitable discovery ruling.

We are unconvinced that an inevitable discovery framework is correct in 

these circumstances. The doctrine generally addresses completed searches that 

cannot be replicated.

A key factor in the trial court’s decision here was its perception that the 

State was seeking to obtain through legal means the same evidence that it had 

earlier obtained unlawfully. That “look-back” logic would, for example, bar a 

belated application for a search warrant that would allow the police to lawfully 

recover a murder weapon it had discovered only through an initial illegal 
31

search, and rightly so -- the exclusionary rule would have little meaning if it 

could be sidestepped by using the fruits of unlawful conduct to secure legal 

means through which to obtain the same evidence. The exclusionary rule 

would be stripped of its deterrent value and reduced to a procedural speed 

bump if such were the case. 

But DNA is not an item like guns, drugs, or documents. DNA is 

different in that immutable evidence lives on. Always. And the breadth of it 

extends beyond the swab. A new DNA sample might provide the same 

information as the original sample, but each sample is evidence in its own 

right -- and the exclusionary rule bars the use of the same evidence that was 

illegally obtained or “poisoned fruit” evidence that would not have been 

discovered but for the initial, illegally obtained evidence. The State’s request 

to compel a new sample must therefore be viewed for what it truly is: a

request to obtain a new buccal sample -- new evidence -- notwithstanding that 

it will lead to the same uniquely identifying information that DNA provides. 

That one’s identity does not change and is revealed through DNA does not

alter the fact that it is still a new sample.

An easy-to-imagine example illustrates this point. Defendant’s buccal 

swab has been found inadmissible because it was illegally obtained. But there 

are other ways to obtain a sample of defendant’s DNA. If, for example, he 
32

were to be seen in a public place drinking from a paper cup, one could not 

reasonably argue that the State would be precluded from retrieving the cup and 

testing the DNA sample left on it by defendant. The same reasoning leads to 

the logical conclusion that if law enforcement has a basis for obtaining a 

lawful buccal sample, defendant cannot shield his DNA-revealed 

nontestimonial identifying information because it once was obtained illegally. 

There is simply no basis to distinguish a subsequent, lawful buccal swab from 

the lawful collection of DNA from other sources. Both are new evidence.

Rule 3:5A provides law enforcement with an avenue for making a lawful 

request for a new sample. A properly issued judicial order under Rule 3:5A-4 

should be available to law enforcement, on the right terms. Other courts have 

recognized as much. In the Diaz case from Colorado discussed above, the 

Colorado Supreme Court took a similar step. 53 P.3d at 1175-78. Despite its 

holding that the original blood and hair samples must be suppressed, the court 

determined that under the Colorado Rules of Criminal Procedure, “an illegal 

seizure of previous identification samples from the defendant by the police 

does not foreclose the prosecution from obtaining identity evidence through 

proper means after filing of the case.”9 Id. at 1177. The court reasoned that in 

 

9

 Under the Colorado Rules of Criminal Procedure, “[n]otwithstanding the 

initiation of judicial proceedings, and subject to constitutional limitations, 

upon request of the prosecuting attorney, the court may require the accused to 
33

seeking the new nontestimonial identification evidence, “the prosecution d[id]

not rely on information or evidence the police obtained by means of an illegal 

search and seizure.” Ibid.

So the important question to be decided is by what standard the State 

may obtain a judicial order for the taking of a new buccal swab through a Rule

3:5A application after a prior buccal sample has been suppressed.

B.

Because the look-back approach that undergirds inevitable discovery 

seems a poor fit for these circumstances -- where, again, the State seeks not the 

admission of previously obtained evidence but rather new evidence that will 

provide the same information as the suppressed evidence -- we fashion a test 

better tailored for the unique nature of DNA evidence and a fair assessment of 

whether a second buccal swab sample should be allowed.

The test we envision is derived in part from aspects of the independent 

source doctrine. Generally, the independent source doctrine allows for the 

introduction of evidence tainted by unlawful police conduct if the information 

 

give any nontestimonial identification.” Colo. R. Crim. P. 16(II)(a)(1). 

Nontestimonial identification “includes, but is not limited to, identification by 

fingerprints, palm prints, footprints, measurements, blood specimens, urine 

specimens, saliva samples, hair samples, specimens of material under 

fingernails, or other reasonable physical or medical examination, handwriting 

exemplars, voice samples, photographs, appearing in lineups, and trying on 

articles of clothing.” Colo. R. Crim. P. 41.1(h)(2).
34

leading to discovery of the evidence is independent of the previous unlawful 

conduct. See Nix, 467 U.S. at 443. Similar to the inevitable discovery 

doctrine, the State bears the burden of proving that the independent source 

doctrine should apply by clear and convincing evidence. State v. Holland, 176 

N.J. 344, 362 (2003). Under New Jersey law, the State must show that

probable cause existed to conduct the challenged search 

without the unlawfully obtained information. It must 

make that showing by relying on factors wholly 

independent from the knowledge, evidence, or other 

information acquired as a result of the prior illegal 

search. Second, the State must demonstrate . . . that the 

police would have sought a warrant without the tainted 

knowledge or evidence that they previously had 

acquired or viewed. Third, regardless of the strength of 

their proofs under the first and second prongs, 

prosecutors must demonstrate by the same enhanced 

standard that the initial impermissible search was not 

the product of flagrant police misconduct.

[Id. at 360-61.] 

Flagrancy is a high bar, requiring active disregard of proper procedure, or 

overt attempts to undermine constitutional protections. See State v. Smith, 

212 N.J. 365, 398 (2012) (distinguishing, in the context of a search warrant 

affidavit, the omission of details that would undermine a finding of probable 

cause from affirmative misstatements for purposes of a flagrant misconduct

analysis); see also State v. Chaney, 318 N.J. Super. 217, 226-27 (App. Div. 
35

1999) (finding that the initial unlawful entry by police into a motel room 

where they discovered contraband was not flagrant misconduct because the 

“arrest warrants for a person with the same name as defendant, whose last 

known address was the motel in which defendant was registered,” gave police 

an objectively reasonable basis to believe they were authorized to enter the 

room).

The test we now tailor for an application under Rule 3:5A for a new 

buccal swab for DNA, when the previously obtained sample was declared 

invalid and suppressed, is as follows. First, the State must demonstrate that

probable cause exists to conduct the new search. The court should look at the 

showing advanced by the State to demonstrate probable cause. The evidence 

may involve the same evidence that existed at the time of the illegal search. 

We do not exclude its consideration. We permit but do not require new 

evidence. Thus, Tina’s statements and her identification of defendant are not 

off-limits. Second, the court should determine whether the State’s showing of 

probable cause is untainted by the results of the prior search. Here, we mean 

that the probable cause must be independent of the information obtained 

through the results from the prior swab.10 Third, to deter wrongdoing by the 

 

10

 The dissent appears to misapprehend our test. Post at ___ (slip op. at 13). 

The salient point of Holland’s second prong is encompassed in the first and 

second parts of our test.
36

police, we track the third prong of the independent source doctrine and require 

the State to show by clear and convincing evidence that the initial 

impermissible search was not the result of flagrant police misconduct.

Finally, because of the privacy interest involved, we consider the degree 

of the intrusion posed by the State’s second search. A buccal swab is 

minimally intrusive. King, 569 U.S. at 463. We note that we are considering 

only a Rule 3:5A application which addresses minimally intrusive 

identification procedures. See Rolle, 265 N.J. Super. at 486.

We do not attempt to apply this new test on this record. Rather, a 

remand is in order to allow the State an opportunity to demonstrate whether it 

can meet the standard announced. There may be additional witnesses and 

other evidence that it seeks to put before a factfinder. We follow normal 

procedures and send this back for the trial courts to handle. Because the 

original judge made extensive credibility determinations about the witnesses 

before the court, as well as about Tina, who was not before the court, we refer 

this matter to the Assignment Judge for assignment.

VII.

We affirm in part and reverse in part the judgment of the Appellate 

Division. We remand this matter to the Superior Court, Law Division for 

further proceedings consistent with this opinion.
37

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZVINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA’s opinion. 

JUSTICE ALBIN filed a dissent.
1

State of New Jersey,

Plaintiff-Appellant,

v.

Rafael Camey,

Defendant-Respondent.

JUSTICE ALBIN, dissenting.

The fundamental rights afforded to a suspect by our Federal and State 

Constitutions cannot be cut and trimmed to fit the investigatory objectives of

law enforcement. Even those under investigation for heinous offenses are 

entitled to the full protection of the law. 

The trial court determined that the police unlawfully secured a buccal 

swab from defendant Rafael Camey by unconstitutionally detaining him and 

having him sign a consent form in a language he did not understand and 

without informing him of his right to refuse. The court found that the police 

three times unlawfully detained Camey and three times unlawfully interrogated 

him.

At the conclusion of a testimonial hearing, the court suppressed evidence 

of the buccal swab and the DNA test results of that swab. The court held that

the inevitable discovery doctrine did not allow the taking of a second buccal 
2

swab from Camey because the State had not presented credible evidence that

the investigating detective would have secured a warrant through lawful 

means. 

The Appellate Division concluded that the trial court -- based on its 

detailed factual findings -- did not abuse its discretion in suppressing the 

buccal swab and forbidding the taking of a second one. 

Despite the trial court’s proper application of the inevitable discovery 

doctrine -- the theory presented by the State at the suppression hearing -- the 

majority reverses. The majority does so based on its newly created and 

weakened version of the independent source doctrine set forth in State v. 

Holland, 176 N.J. 344, 360-61 (2003) -- a new test crafted specifically for 

immutable evidence, such as DNA evidence. The majority, however, retains 

an important feature of the Holland test -- barring a second search if the initial 

impermissible search was “the result of flagrant police misconduct.” Ante at 

___ (slip op. at 36). 

In light of that still operable flagrancy factor, the majority’s remand for 

a new suppression hearing before a different judge is not justifiable. The trial 

court’s factfindings were sustained by the Appellate Division and, by any 

measure, detail police officers engaging in flagrant misconduct in violation of 

Camey’s constitutional rights. On the record before us, given the deference 
3

that must be accorded the trial court’s factfindings, see State v. Elders, 192 

N.J. 224, 244 (2007), the State cannot prove by clear and convincing evidence 

that the police officers did not engage in flagrant misconduct when they 

unlawfully detained Camey, unlawfully interrogated him, and unlawfully 

secured a buccal swab without his consent. Thus, even under the new test, the 

taking of a second buccal sample is barred.

I dissent because there is no basis to reverse the trial court’s suppression

order and to remand before a different judge. I also dissent because the 

majority’s retreat from the rigorous Holland test -- the test for determining 

whether a “seizure of evidence was independent of, and untainted by, earlier 

illegal police misconduct” -- diminishes the deterrent effect of the 

exclusionary rule. See 176 N.J. at 360. 

I.

A.

The trial court conducted a several day suppression hearing, taking 

testimony and making credibility determinations. The trial court’s detailed 

factual findings are the starting point of our discussion. Those detailed 

findings about police misconduct remain valid despite the State’s change of 

legal theory for the admission of a second buccal swab.

The trial court made the following findings. 
4

While investigating the brutal murder of a woman named Katie,

1

an 

alleged sex worker, the Passaic Police Department secured “consent” to take 

buccal swabs from at least a dozen homeless people who resided in the area of 

the murder. Sergeant Roy Bordamonte was the lead investigator. Camey 

became a “person of interest” during the investigation. The police “grabbed” 

Camey in a bar, detained him without probable cause, and transported him to 

headquarters, where he was not free to leave. According to the court, the 

police engaged in “a blatantly illegal detention.”

At headquarters, Detective Alex Flores -- a Spanish-speaking officer --

read Camey his Miranda2 warnings, but made no “effort to have him 

understand them.” When Camey said, “I don’t understand and I don’t know,” 

the police did not address his lack of comprehension. Camey spoke virtually 

no English, had only a second-grade education, and had no prior experience in 

the criminal justice system. The court concluded that “the State ha[d] not 

proven beyond a reasonable doubt that the defendant understood and 

knowingly and voluntarily waived his Miranda rights,” and suppressed the 

statement he made. 

 

1

 Katie is a fictitious name assigned to the victim by the majority. 

2 Miranda v. Arizona, 384 U.S. 436 (1966). 
5

The police secured a buccal swab from the unlawfully detained Camey 

for DNA testing -- not by consent but by unlawful means, according to the 

court. Before taking the buccal swab, the police never translated the Englishworded consent form given to the Spanish-speaking Camey, never advised him 

that he had a right to refuse to consent to the taking of the swab, and never told 

him that the swab would be sent to a police lab for DNA testing as part of a 

criminal investigation. While acknowledging “that the police were

investigating a terrible crime,” the court nevertheless concluded that the police 

committed “egregious constitutional violations.” The police did not arrest 

Camey, and he was released. 

The police unlawfully detained Camey a second time -- without a 

warrant or probable cause. Camey was “grabbed” while doing his laundry and 

transported to headquarters for questioning. The trial court described this as a 

“blatantly illegal detention.” According to the court, the police did not ensure 

that Camey knowingly and voluntarily waived his Miranda rights, and 

although the statement elicited was “exculpatory,” it nonetheless was not the 

product of a “free will.” The court found the police conduct “offensive to 

[Camey’s] due process” rights. Again, Camey was released.

The police unlawfully detained Camey a third time and transported him 

to headquarters for another round of questioning. Once more, the police failed 
6

to obtain from Camey a valid waiver of his Miranda rights. During a six-andone-half-hour interrogation, the police did not offer Camey food, although he 

stated he was “dying of hunger,” and did not offer him a bathroom break. 

During the interrogation, Sergeant Bordamonte verbally abused Camey, calling 

him a “little freak,” a “motherf***ing liar,” and a “tutti-frutti.” Sergeant 

Bordamonte threatened Camey that if he persisted in his denials that he would 

be deprived of water. The court referred to this detention, as it did to the 

previous two, as “a blatantly illegal detention” during which the police 

extracted a “legally involuntary” statement. 

The police conduct in this case was so shocking to the court that it 

remarked:

I have rarely seen such blatant disregard for the most 

basic of constitutional safeguards. The cited case law 

talks about techniques that are offensive to due process. 

The procedures here were beyond offensive. They not 

only were unfair to the defendant, they were unfair to 

the victim, since the evidence that was illegally 

gathered has been suppressed. 

B.

The trial court addressed the legal theories presented by the parties. The 

State argued that, despite the constitutional violations, the police inevitably 

would have sought a buccal swab from Camey that linked his DNA to the 

victim. The court, relying on State v. Sugar, 100 N.J. 214, 238 (1985), 
7

rejected the State’s inevitable discovery argument because it concluded that 

Sergeant Bordamonte would not have secured a warrant by lawful means for 

the buccal swab through ordinary investigative means. The court came to that 

conclusion based on the entirety of the police conduct toward Camey -- the 

failure to secure lawful consent for the buccal swab, and the three illegal 

detentions and three illegal interrogations. The Appellate Division sustained 

the trial court’s factfindings. 

The trial court further came to that conclusion because of Bordamonte’s

infrequent recourse to the warrant procedure during his law enforcement 

career. For example, in this case, Sergeant Bordamonte did not apply for a 

warrant to search Camey’s home. Nor did Bordamonte apply for a warrant to 

search the home of the victim’s husband, who allegedly had been having 

“problems” with his wife and who had been arrested for an alleged act of 

domestic violence against her. In addition, the husband had a previous arrest 

for aggravated sexual assault and had been fired from his job for showing 

naked pictures of himself to co-workers just one day before his wife was last 

seen alive.

Having determined that the State failed to prove by clear and convincing 

evidence that the police would have proceeded by lawful means to secure a 
8

warrant for the taking of a buccal swab, the court suppressed the DNA results 

from the first buccal swab and barred the taking of a second one.

C.

The State did not argue the applicability of the independent source 

doctrine before the trial court or the Appellate Division. That doctrine became 

the focus of attention for the first time during oral argument before our Court

and now has become the doctrinal basis for the majority’s new standard as it 

applies to immutable identification evidence. That new standard is a retreat 

from the independent source doctrine as articulated in Holland, 176 N.J. at 

360-61. 

In Holland, this Court determined that when the State procures evidence 

by unconstitutional means, the State bears the burden of demonstrating that a 

later “seizure of evidence was independent of, and untainted by, earlier illegal 

police conduct.” 176 N.J. at 360. Under Holland, to establish an independent 

source for the procuring of evidence untainted by the initial unconstitutional 

seizure of evidence, the State must satisfy three prongs. Id. at 360-61. First, 

the State must demonstrate that it relied on “factors wholly independent from 

the knowledge, evidence, or other information acquired as a result of the prior 

illegal search” to prove “that probable cause existed to conduct the challenged 

search.” Ibid. Second, it must establish, “by clear and convincing evidence,
9

that the police would have sought a warrant without the tainted knowledge or 

evidence that they previously had acquired or viewed.” Id. at 361. Third, it 

must clearly and convincingly show that “regardless of the strength of their 

proofs under the first and second prongs, . . . that the initial impermissible 

search was not the product of flagrant police misconduct.” Ibid. 

When the initial impermissible search is the product of flagrant

misconduct, the independent source doctrine cannot be invoked to justify a 

subsequent search relating to the initial search. See ibid. In other 

circumstances, the focus of the Holland test is whether the subsequent search 

is actually tainted by the “earlier illegal police conduct.” See id. at 360. 

Understanding the potential for the independent source doctrine to undermine 

the deterrent effect of the exclusionary rule, our Court cautioned:

Only by rigorously applying the rule’s three prongs can 

we be satisfied that an error of the State’s making does 

not subvert the warrant requirement under Article I, 

paragraph 7 [of the New Jersey Constitution]. 

. . . .

We stress that courts must apply scrupulously each part 

of the test, and that the government’s failure to satisfy 

any one prong of the standard will result in suppression 

of the challenged evidence. 

[Id. at 362-63.] 

 
10

“The jurisdiction of appellate courts rightly is bounded by the proofs and 

objections critically explored on the record before the trial court by the parties 

themselves.” State v. Robinson, 200 N.J. 1, 19 (2009). The majority has 

declined to limit itself to the arguments advanced before the trial court and 

Appellate Division, and in the State’s brief for leave to appeal to this Court --

the applicability of the inevitable discovery doctrine. Having decided to look 

for another doctrinal basis to review a subsequent search for immutable 

evidence, the majority does not adhere to our well-established jurisprudence 

on the independent source doctrine.

Here is how the majority has reconfigured the independent source 

doctrine for immutable evidence. Under the majority’s new standard, after an 

unconstitutional seizure of immutable evidence, (1) the “State must 

demonstrate that probable cause exists to conduct the new search” and that 

showing may be based on “the same evidence that existed at the time of the 

illegal search”; (2) “the court should determine whether the State’s showing of 

probable cause is untainted by the results of the prior search”; and (3) “the 

State must show by clear and convincing evidence that the initial 

impermissible search was not the result of flagrant police misconduct.” Ante

at ___ (slip op. at 35-36). 
11

The majority’s test, like the traditional Holland test, bars a subsequent 

search when the initial impermissible search was the product of flagrant police 

misconduct. On that basis alone, this Court should affirm the Appellate 

Division, which determined that the trial court’s factfindings were supported 

by sufficient credible evidence in the record. The trial court never used the 

term “flagrant police misconduct” because the independent source doctrine had 

not been invoked by the State. But the court’s detailed factfindings referred to 

what can only be described as flagrant misconduct. The taking of the buccal 

swab occurred after the police “grabbed” Camey from a bar without a warrant 

or probable cause and subjected him to a “blatantly illegal detention.” The 

police then interrogated Camey while running roughshod over his Miranda

rights -- questioning him even though he did not comprehend his rights. On 

that same day that the police unlawfully detained Camey and violated his 

Miranda rights, the police secured Camey’s “consent” to a buccal swab by 

giving him an English-worded consent form that he could not understand and 

by not advising him that he had a right to refuse to consent to the search. 

Based on the totality of the circumstances, the trial court concluded that the 

police had engaged in “egregious constitutional violations.” 

It can hardly be disputed that the trial court, in functionally equivalent 

language, found that the initial taking of the buccal swab was “the result of 
12

flagrant police misconduct.” See ante at ___ (slip op. at 36). The majority 

states that a finding of flagrancy “requir[es] active disregard of proper 

procedure, or overt attempts to undermine constitutional protections.” Ante at 

___ (slip op. at 34). The record is replete with factfindings that satisfy the 

majority’s definition of flagrancy. Based on the deferential standard accorded 

to a trial court’s factfindings, Elders, 192 N.J. at 244, a finding that the police 

engaged in flagrant misconduct is inescapable.

Because flagrancy is determinative even under the majority’s test, a 

remand is pointless. No further witness-credibility factfindings are required on 

that issue and therefore a remand to a different trial judge cannot be justified. 

The trial court thoughtfully and deliberately considered and weighed the 

testimony and understood the consequences of suppressing evidence that might 

make it difficult for the State to prosecute Camey for a heinous crime. 

Suppressing evidence -- evidence secured illegally -- will not receive public 

adulation, even when our case law demands the result. Despite that reality, the 

court fulfilled a core judicial function by adhering to the dictates of the 

Constitution and upholding fundamental rights. The court’s well-reasoned 

decision to suppress the buccal swab evidence and bar the taking of a second 

buccal swab should be affirmed.
13

II.

Last, the majority needlessly abandons Holland’s rigorous independent 

source test in cases of unconstitutional seizure of immutable evidence and 

therefore diminishes the deterrent effect of the exclusionary rule when the 

police violate a person’s constitutional rights. The majority has discarded 

Holland’s second prong that requires the State to establish that “the police 

would have sought a warrant without the tainted knowledge or evidence that 

they previously had acquired or viewed.” 176 N.J. at 361. The majority has 

replaced that meaningful prong with one that places little burden on the State 

for a previous unconstitutional search or seizure.

The majority requires that the State “demonstrate that probable cause 

exists to conduct the new search,” a showing that the majority permits to be 

based on “the same evidence that existed at the time of the illegal search.” 

Ante at ___ (slip op. at 35). The police, however, must always establish 

probable cause to conduct a search, whether it is the first or the last one. 

Additionally, allowing the State to rely on the same evidence to establish 

probable cause merely permits the police a do-over after a failure to adhere to

constitutional dictates. Police officers will have a lesser incentive to get a 

warrant for the taking of a buccal swab when suppression leads to the police 

using the same probable-cause evidence to secure a proper search warrant. 
14

Defense attorneys will soon see the futility of filing suppression motions, 

leading to police practices that are indifferent to the Constitution’s warrant 

requirement. The majority articulates no good reason for jettisoning Holland’s 

insistence that the State prove that “the police would have sought a warrant 

without the tainted knowledge” from the evidence acquired from an 

unconstitutional search. See Holland, 176 N.J. at 361.

III.

For the reasons expressed, I respectfully dissent.