SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3809-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE L. ATKINS, a/k/a 

TERENCE L. ATKINS, and

TERRANCE ARKINS,

Defendant-Appellant.

___________________________________

Submitted May 21, 2018 – Decided October 29, 2018

Before Judges Ostrer and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Somerset County, Indictment No. 

08-12-0931.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Jay L. Wilensky, Assistant Deputy Public 

Defender, of counsel and on the brief).

Michael H. Robertson, Somerset County Prosecutor, 

attorney for respondent (Paul H. Heinzel, Assistant 

Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant appeals from his conviction, after a guilty plea, to an amended 

charge of third-degree possession of a controlled dangerous substance (CDS)

analogue, N.J.S.A. 2C:35-10(a)(1), and fourth-degree possession of marijuana 

with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(12). He contends the 

trial court erred in denying his motion to suppress the fruits of a search of his 

vehicle. We affirm.

This case returns to us after a remand. We previously reversed defendant's 

conviction, after a jury trial, of multiple drug and firearm offenses. State v. 

Atkins, No. A-0732-13 (App. Div. July 6, 2015) (Atkins I). We held that in two 

separate custodial interrogations, police did not scrupulously honor, as required 

by Miranda1and its progeny, defendant's ambiguous requests for counsel, when 

he inquired about obtaining a public defender. Id., slip op. at 22. Therefore, we 

held at a retrial, the court should suppress defendant's custodial statements. Ibid. 

We added that the court should also exclude "any evidence obtained based on 

those statements." Ibid. 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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In advance of retrial, defendant moved to suppress the drugs and gun 

found during a consent search of his vehicle. Invoking our prior opinion, 

defendant contended his consent was invalid, because defendant provided it 

after he ambiguously invoked his right to counsel. 

The trial court rejected that argument on two grounds. First, the court 

concluded that defendant's consent was knowing and voluntary; it did not arise 

from anything he told police during his "defective statement"; and was 

"independent of the interrogations and uninfluenced by defendant's statements." 

Second, the court held that police would have inevitably discovered the drugs 

and gun in defendant's car without defendant's consent. The judge noted that 

when defendant consented, police ceased the process already underway to obtain 

a search warrant. The judge opined that the warrant would have been granted, 

because a suspected CDS was seen in plain view, and defendant was arrested. 

Defendant thereafter pleaded guilty to the charges noted above, and was 

sentenced to time served, conditioned on three years of probation. Defendant 

had forty-six days of jail credit and 718 days of prior service credit. 

On appeal, defendant argues:

THE TRIAL COURT'S DENIAL OF SUPPRESSION 

OF PHYSICAL EVIDENCE IS PRECLUDED BY 

THIS COURT'S PRIOR OPINION CONCERNING 

SUPPRESSION OF DEFENDANT'S STATEMENTS, 
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AND ACCORDINGLY MUST BE REVERSED. U.S. 

CONST., AMENDS. IV, XIV; N.J. CONST., Art. 1, 

Par. 7.

Defendant relies on our statement in Atkins I that the court should exclude not 

only defendant's incriminating statements, but also "any evidence obtained 

based on those statements." He contends that we thereby precluded the trial 

court from determining that physical evidence obtained in the consent search 

was admissible. 

We disagree. In excluding evidence "based on" defendant's statements 

obtained in violation of Miranda, we simply meant to refer to the fruit-of-thepoisonous-tree doctrine. A court must suppress evidence that is obtained "by 

exploitation of . . . illegality"; but not evidence obtained "by means sufficiently 

distinguishable to be purged of the primary taint." Wong Sun v. United States, 

371 U.S. 471, 488 (1963). We did not bar the trial court from applying the 

"inevitable discovery" doctrine, which is an exception to the exclusionary rule

that bars "fruit of the poisonous tree." State v. Johnson, 120 N.J. 263, 289-90 

(1990); see also Nix v. Williams, 467 U.S. 431, 444 (1984) (explaining that 

excluding evidence that would inevitably have been discovered, independent of 

the illegality, does not serve the deterrent purpose of the exclusionary rule). Nor 

did we bar the trial court from applying the attenuation doctrine. "Under that 
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doctrine, if the causal connection between the illegal conduct and obtaining the 

evidence has become so attenuated as to dissipate the taint, the evidence is 

admissible." State v. James, 346 N.J. Super. 441, 453 (App. Div. 2002). 

To establish inevitable discovery, the State must prove, by clear and 

convincing evidence, that evidence obtained through an illegal search would 

inevitably have been discovered, and therefore should not be suppressed. State 

v. Sugar, 100 N.J. 214, 240 (1985). The State must show:

(1) proper, normal and specific investigatory 

procedures would have been pursued in order to 

complete the investigation of the case; (2) under all the 

surrounding relevant circumstances the pursuit of those 

procedures would have inevitably resulted in the 

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

evidence through the use of such procedures would 

have occurred wholly independently of the discovery of 

such evidence by unlawful means.

[Id. at 238.]

See also Wayne R. LaFave, Search and Seizure § 11.4(a) at 278-79 (5th ed. 

2018) (stating that application of the inevitable discovery doctrine is most likely 

justified where "investigative procedures were already in progress prior to the 

discovery via illegal means . . . or where the circumstances are such that, 

pursuant to some standardized procedures or established routine a certain 

evidence-revealing event would definitely have occurred later").
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We shall not disturb the court's findings that police were already in the 

process of seeking a search warrant, and that one would have been granted if 

police did not withdraw their request for a warrant once defendant consented to 

the search. The court's findings were amply supported by the evidence. See

State v. S.S., 229 N.J. 360, 379-80 (2017) (stating the appellate court's 

deferential standard of review of a trial court's findings on a motion to suppress). 

At a pre-trial hearing, Somerset County Prosecutor's Office Sergeant 

Joseph Walsh testified that, during a field inquiry, he observed what appeared 

to be cocaine in the side-pocket of defendant's car door. Defendant had driven 

up to a corner in an area where gang-related crimes had occurred, to meet an 

individual who had been waiting nervously for roughly fifteen minutes. Upon 

spotting the suspected cocaine, the sergeant removed defendant and two other 

occupants from the car, and they were placed under arrest. In a search incident 

to defendant's arrest, police seized $257 in cash and two cell phones.2 The 

sergeant retrieved the suspected cocaine from the door. After defendant refused 

a request on the scene for his consent for a further search of the vehicle, the 

sergeant secured the assistance of a canine unit from the local police station. 

The canine indicated the presence of drugs at several points on the vehicle. Back 

 

2

 These particular facts were elicited at defendant's trial. 
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at the local police department, Sergeant Walsh conducted a field test which 

confirmed that what he had seized was cocaine. The sergeant then contacted the 

on-call assistant prosecutor, outlined the facts, and requested a search warrant 

for defendant's vehicle. The assistant prosecutor then started to take steps 

necessary to contact the emergent duty judge. Sergeant Walsh stated that he 

stopped the search warrant application process only after detectives informed 

him that defendant had consented to the search. 

These facts amply support a conclusion, by clear and convincing evidence, 

that if law enforcement pursued "proper, normal and specific investigatory 

procedures" as required in Sugar, a search warrant would have been issued; and 

the contents of the vehicle – including the gun and additional drugs – would 

have been discovered, independently of defendant's consent given during his 

tainted interrogation. An assistant prosecutor was already involved in the effort 

to secure a search warrant. The totality of circumstances supported a finding of 

probable cause that defendant was engaged in the distribution of CDS, and that 

other evidence of a crime would be found in defendant's vehicle. Defendant was 

found in a high-crime area, meeting a person who nervously awaited his arrival 

on a street corner. Defendant possessed multiple packets of cocaine, as 

confirmed in a field test, in the driver's side pocket of the vehicle. Common 
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among drug dealers, defendant also possessed two cell phones and a substantial 

amount of cash. 

The trial court found, and we have no doubt, that an emergent duty judge 

would have granted the warrant, which would have led to the discovery of the 

additional evidence. In sum, we discern no error in the trial court's 

determination to sustain the search based on inevitable discovery. See State v. 

Johnson, 120 N.J. 263, 290 (1990) (applying the inevitable discovery doctrine 

where the detective was already in the process of preparing affidavit in support 

of search warrant based on information independent of the tainted source); State 

v. Finesmith, 406 N.J. Super. 510, 522-24 (App. Div. 2009) (applying the 

inevitable discovery doctrine where, had police not discovered the laptop as a 

result of defendant's suppressed statement, it would have discovered the laptop

pursuant to a warrant that the State had already independently obtained). 

Given our conclusions regarding the inevitable discovery doctrine, we 

need not reach the question of whether defendant's grant of consent was 

sufficiently attenuated from the tainted interrogation. 

Affirmed.