Judge mulls test of driver who killed Mt. Arlington cop

Six Mount Arlington police officers on Wednesday were present for Superior Court arguments on whether police were justified in 2011 in obtaining blood and urine samples, without a warrant, from a driver who later admitted to being high and killing on-duty borough Patrolman Joseph Wargo Jr. in a crash.

By state Supreme Court order, Judge Stephen Taylor, sitting in Morristown, has been ordered to re-examine whether police on Oct. 16, 2011, reasonably believed there were "exigent circumstances" — pressing, demanding circumstances — surrounding the investigation into the crash on Route 80 to justify a decision not to obtain a warrant to draw blood from defendant Michael Cassella of Howell.

Taylor earlier this month heard testimony from state troopers who responded to the 12:12 a.m. crash in Roxbury, in which Cassella, now 33, lost control of the Mitsubishi Lancer he was driving, crossed the highway and struck Wargo's patrol car.  The collision propelled Wargo's car into woods off the side of the interstate.  On Wednesday, Cassella was brought from state prison to Taylor's courtroom, where Morris County Assistant Prosecutor Matthew Troiano and defense lawyer Donald Lomurro gave final arguments on the admissibility of the warrantless blood draw.

While reserving the right to appeal the use of the blood draw that showed he had heroin, morphine and Xanax in his body at the time of the crash, Cassella pleaded guilty to aggravated manslaughter and was sentenced in March 2013 to 20 years in prison.

A different Superior Court judge previously ruled that "exigent circumstances" existed at the time to justify the warrantless search, or blood draw. While Cassella's case was on appeal, the state Supreme Court, in an unrelated case dealing with warrantless searches, remanded his case to Superior Court for the hearing Taylor just completed.

The judge said he will issue a written decision to be released around mid-February. If the results of the blood draw are suppressed, Cassella's guilty plea would be vacated, and he could go to trial or negotiate a new plea agreement.

Lomurro told the judge he believes that in this electronic age, police — like those at the Wargo scene — have cellular phones and email they can use to seek a warrant from a judge.  Lomurro argued that since Cassella was not seriously injured and didn't need to be rushed to a hospital for treatment, the only reason one trooper personally drove Cassella to Morristown Medical Center was to have blood drawn to see his level of impairment.

Lomurro said one trooper had a consent form in his possession and could have gotten express permission from Cassella for the blood draw but did not.

"The trooper knew objectively what he was trained to do, and he did not do it," Lomurro said.

Troiano argued that there were "a series of exigent circumstances" after police learned of the crash and that the decision not to seek a warrant was appropriate and "objectively reasonable," the standard the judge has to apply.

Police had to secure the crime scene and "debris field"; stop traffic on both sides of Route 80 to allow for a helicopter to land and transport Wargo to Morristown Medical Center; question witnesses; and, most important, Troiano said, attempt to save Wargo's life as he was dying and trapped in his vehicle.

"There were special facts all over this place," Troiano said. "There were special facts insofar as the severity of the crime, special facts of the scene, of the extrication process, of the attempts to communicate with the defendant, and all actions — all actions, I would submit — are objectively reasonable."

One trooper previously had testified that a patient care technician at the hospital had difficulty finding a vein on Cassella from which to draw blood. Cassella suggested blood be drawn from his foot, leading the judge Wednesday to question whether the suggestion signified "implied consent" by Cassella.

Lomurro said no, arguing that Cassella was going along with the process since he was in custody and didn't think he could resist.

As part of the hearing, the judge had watched segments of troopers' interactions with Cassella at the scene that were captured on mobile in-vehicle video recording systems. Cassella is heard telling a trooper that he was trying to get home to Howell. He said he was trying to get onto Route 9 and didn't realize he was on Route 80 in Morris County.

   Staff Writer Peggy Wright: 973-267-1142; pwright@gannettnj.com