State v. Davis

STATE OF NEW JERSEY, Plaintiff-Respondent, v. STANLEY R. DAVIS, JR., Defendant-Appellant.

DOCKET NO. A-6022-17

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued December 15, 2020

March 26, 2021

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Gilson, Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 14-04-0142.

John P. Flynn, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; John P. Flynn, of counsel and on the briefs).

Dit Mosco, Acting Assistant Prosecutor, argued the cause for respondent (James L. Pfeiffer, Acting Prosecutor, attorney; Dit Mosco, of counsel and on the brief).

PER CURIAM

Following the denial of his motions to suppress child-pornography files found on computer equipment in his home and his statement to a Warren County Prosecutor's Office (WCPO) detective after the files were found, defendant Stanley R. Davis, Jr. was found guilty of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(b), after a bench trial. He appeals from the judgment of conviction and challenges the sentence imposed, arguing:

POINT I

BY USING A COERCIVE KNOCK-AND-TALK TACTIC AND FAILING TO TELL [DEFENDANT] HE COULD REFUSE ENTRY INTO HIS HOME, THE DETECTIVES EXTRACTED UNKNOWING AND INVOLUNTARY CONSENT TO SEARCH FROM [HIM].

POINT II

[DEFENDANT'S] STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE DETECTIVES DID NOT APPROPRIATELY CLARIFY WHETHER [HE] UNDERSTOOD HIS MIRANDA¹ RIGHTS PRIOR TO WAIVING THEM.

POINT III

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE 364-DAY JAIL TERM AND FIVE YEARS' PROBATION ON THIS FIFTY-SEVEN-YEAR-OLD FIRST-TIME OFFENDER.

Unpersuaded, we affirm.

Defendant came to the attention of Warren County law enforcement officers when then-Lieutenant Richard Gould of the Essex County Prosecutor's Office Cyber Crimes Unit informed WCPO Detective Sergeant Derek Michael Kries that a computer with an IP address subscribed to by an individual at defendant's residence contained child pornography files. Kries, Gould, Detective Sergeant John Amey of the Hackettstown Police Department, WCPO Detective Dawn Dalrymple and two other detectives traveled to defendant's residence at approximately 5:45 a.m. to conduct a planned knock and talk. The detectives did not have a search warrant.

While the other detectives remained out of sight, Gould, Amey and Dalrymple knocked on defendant's door and asked if they could enter. After defendant granted them entry, Dalrymple advised defendant that police had information about unlawful computer files and presented defendant with a consent-to-search form for the computers in his home. Dalrymple read the form aloud to defendant. Defendant signed the form at 6:20 a.m.

I

Defendant argues the trial judge erred because he did not consider that the officers had failed to advise defendant he had the "right to refuse consent toenter his home for the purpose of a search," rendering the consent search "constitutionally invalid" thus requiring the suppression of all seized evidence. Though the record on appeal does not contain defendant's brief to the trial judge, as is proper under Rule 2:6-1(a)(2), we do not see any mention of that argument during the motion hearing or in the judge's oral decision. Our review is generally limited to the matters addressed by the trial judge. See State v. Witt, 223 N.J. 409, 419 (2015) (noting parties must raise an issue before the trial court to allow an appellate court to review it); Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 539 (2002) (noting courts should be "reluctant to review matters . . . in any case where a record had not been fully developed by the parties in the trial courts"). This record, however, is sufficiently developed to allow our full review, see State v Scott, 229 N.J. 469, 480 (2017) (reviewing a bias argument raised for the first time on appeal because, unlike in Witt, the record was "fully developed"), in which we give deference to the trial judge's factual findings, State v. Gonzales, 227 N.J. 77, 101 (2016), and uphold them if they are supported by sufficient credible evidence in the record, State v. Minitee, 210 N.J. 307, 317 (2012). We will disturb those findings only if they were "so clearly mistaken 'that the interests of justice demand intervention and correction,'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson,42 N.J. 146, 162 (1964)). We review de novo the judge's application of factual findings to the law. State v. Gamble, 218 N.J. 412, 425 (2014).

Defendant's argument rests on the false premise that police had the obligation to advise defendant he had the right to refuse when they requested entry to his residence. "A 'knock and talk' [is an investigative procedure that] occurs when the police knock on [a defendant's] door, make contact with [him or her], ask if they may enter to talk about their concern, and once inside, ask permission to search the premises." State v. Domicz, 188 N.J. 285, 317 n.1 (2006) (Wallace, J., concurring and dissenting). Our courts have upheld this tactic as a constitutionally permissible investigative procedure, see id. at 302-03; see also State v. Williams, 461 N.J. Super. 80, 101-02 (App. Div. 2019), cert. denied, 241 N.J. 92 (2020) (upholding police use of a knock and talk), so long as the knock and talk is not being used simply as "a pretext to gain access to the [premises and] conduct an unconstitutional search," State v. Davila, 203 N.J. 97, 130 (2010).

Unlike the police in Davila, where our Supreme Court ordered a remand because it viewed the knock-and-talk procedure as a pretext to gain access to the defendant's apartment to conduct a warrantless protective sweep—a search—of the premises, 203 N.J. at 130, nothing in the current record suggests thedetectives went to defendant's apartment with the hope of carrying out an unconstitutional search of his home. Instead, they went with the purpose of obtaining defendant's consent to search: an exception to the warrant requirement. State v. Coles, 218 N.J. 322, 337 (2014).

The detectives did not conduct the search until defendant—advised that he had the right to refuse consent to search—signed the consent-to-search form. Thus, defendant's protections against unreasonable searches and seizures, U.S. Const. amend. IV; N.J. Const. art. I, § 7, were not implicated or violated by the mere invited entry into his home—not to search, but to talk. See Domicz, 188 N.J. at 302 ("[W]hen a law enforcement officer walks to a front or back door for the purpose of making contact with a resident and reasonably believes that the door is used by visitors, he is not [acting] unconstitutionally[.]").

Defendant's decision to voluntarily admit the detectives into his residence "was the same as that of any other social guest or business visitor." The police entry into his home, therefore, did not constitute a search. See State v. Pineiro, 369 N.J. Super. 65, 73 (App. Div. 2004) (reasoning, because the defendant "voluntarily admitted" police into his apartment, their entry "was the same as that of any other social guest or business visitor, and did not constitute a Fourth Amendment search"); see also State v. Padilla, 321 N.J. Super. 96, 108 (App.Div. 1999) (holding police did not need to inform defendant of her right to refuse entry into her motel room, given they "merely sought permission to enter to continue their investigation"). Even in Williams, where the pertinent issue raised by the defendant was whether her "consent to search was tainted by the prior unlawful entry, sweep, and seizure of the apartment," 461 N.J. Super. at 93, we agreed with the trial judge that the officers "did have a legitimate purpose to be present at the scene," and "[b]ecause the officers obtained consent to enter the apartment and were 'lawfully within private premises for a legitimate purpose,' . . . their presence in the apartment was constitutionally permissible, and satisfied the first element of a protective sweep," id. at 102 (quoting Davila, 203 N.J. at 102). We concluded under those circumstances, "there was no requirement that defendant be advised of her right to refuse entry to the police." Id. at 101.

Defendant's reliance on State v. Legette, 227 N.J. 460 (2017), is misplaced. The Court in Legette, declining to "expand the scope of investigatory stops to encompass police entry into [a defendant's] home" prior to his or her arrest, determined the officer did not gain access to the premises by getting the defendant's consent. 227 N.J. at 473-75. Rather, he gained access by virtue of his exercise of authority over the defendant, id. at 474-75, byapproaching the defendant after receiving a noise complaint and then noticing the smell of burnt marijuana; stopping the defendant as he left the porch and began walking to his car; asking for identification which the defendant said "was in his apartment and volunteered to retrieve it"; and telling "defendant that he would have to accompany him to his apartment under the circumstances. Defendant did not respond and continued walking upstairs," id. at 464 (emphasis added). The officer did not seek defendant's permission to enter the residence, nor did he inform defendant of his right to refuse entry. See ibid.

Here, defendant consented to the entry. The trial judge credited Dalrymple's and Amey's testimony and found "defendant invited them in and never asked them to leave," describing "his demeanor as welcoming, calm and cooperative." Under the circumstances, police were not required to advise defendant he could refuse their entry. Thus, we reject defendant's contention that his consent to search stemmed from the...