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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6022-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STANLEY R. DAVIS, JR.,
Defendant-Appellant. _______________________
Argued December 15, 2020 – Decided March 26, 2021
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 MIRANDA[1] 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.
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-6022-17 2 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 to
A-6022-17 3 enter 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,
A-6022-17 4 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 the
A-6022-17 5 detectives 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.
A-6022-17 6 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, by
A-6022-17 7 approaching 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 detectives' illegal entry into his
home.
We also note the search was conducted only after defendant had signed
the consent-to-search form, which was read aloud to him, and police had advised
him of his right to refuse consent to the search. As we determined in Williams,
even if the initial entry . . . [was] unlawful, the [evidence] seized was not located as a result of [that
A-6022-17 8 entry]. Instead, [it] was found as a result of defendant's consent to search, which was obtained independent of the initial entry[.] Therefore, . . . the seizure [of the evidence] did not arise either directly or indirectly, [as a result of] any unlawful police activity proscribed under the fruit of the poisonous tree doctrine.
[461 N.J. Super. at 105.]
Defendant also argues the totality of the circumstances established his
consent was not knowing and voluntary. We disagree. Nothing in the record
suggests the detectives threatened or coerced defendant to consent to the search
of his computer. Defendant was not under arrest at the time of the entry or
consent; he did not offer his consent after multiple denials of guilt; and he did
not withdraw his consent or ask the detectives to leave at any point during his
initial discussions with police, the search of his computer, or during his formal
statement. See State v. King, 44 N.J. 346, 352 (1965) (measuring the
voluntariness of a defendant's consent requires the court to consider, in part,
whether: the defendant was under arrest at the time of consent; the consent was
obtained after multiple denials of guilt; and the defendant attempted to revoke
his or her consent at any point during the search).
The trial judge found the detectives' testimony credible, rejecting
defendant's claim, reiterated on appeal, that the officers' presence coerced or
A-6022-17 9 intimidated defendant to sign the consent-to-search form. The judge found the
form
specifically identified the Dell laptop but also included all hard drives, computer memory and removable computer media. The consent form also specifically states that defendant could withdraw [h]is consent at any time. After consent was obtained the third detective began to preview his computers. Again, by testimony of both Amey and Dalrymple defendant never withdrew his consent.
And the judge found defendant had signed the form after it had been read to him
and he had been advised he did not have to consent. The record is barren of any
evidence that defendant did not understand the plain language of the form . The
judge's denial of defendant's motion to suppress physical evidence was
supported by the evidence; we see no reason to disturb that decision.
II
Defendant also challenges the trial judge's denial of his motion to suppress
the audio-recorded statement given to Detective Kries, in the presence of
Detective Dalrymple and Lieutenant Gould, after defendant had signed the
consent-to-search form. Kries read each Miranda right aloud to defendant and,
after each, asked defendant if he understood that right; defendant affirmatively
answered each of those questions. When Kries asked defendant if, "having [his]
A-6022-17 10 rights in mind," defendant wanted to speak to Kries regarding the investigation.
The following colloquy ensued:
[Defendant]: I have no problems speaking with you I will have a question of, is this something that I do need legal counsel for, is this something I don't need legal counsel for
[Detective Kries]: well as
[Defendant]: I, I, I know you're going to tell me that you can't tell me that
[Detective Kries]: that's correct
[Defendant]: but I mean I, I don't know what I've done wrong that, maybe I'm
[Detective Kries]: ok well
[Defendant]: I'm overseeing the picture, I'm seeing too much into the picture
[Detective Kries]: ok well I, again I told you that before you asked me, is this something prior, . . . when I asked you will you provide a recorded statement you asked me you know is this something that I'll need an attorney for and I explained to you that I can't give you any legal advi[c]e, I can basically tell you the reason that we're here, we're, we're here investigating you know child pornography, at this point you know you're a suspect in that investigation
[Defendant]: ok
[Detective Kries]: um you know, there's not any criminal charges filed at this time, however I'm not
A-6022-17 11 telling you that there's not going to be criminal charges filed, there is a possibility of that, um you know I don't make that decision, that's you know left up to the assistant prosecutors—we're here investigating that and you know we're gonna take information back to them so as far as you know with regards to an attorney, that's a decision that you know you have to make, that's not something that I can make for you um
[Defendant]: yeah I know, ok
[Detective Kries]: ok
[Defendant]: I, I, I uh (inaudible) said, I am sort of in the loss on this that's why I'm asking questions
[Detective Kries]: no and I understand that and I encourage you if you do have questions to ask us um so just for clarification at this point and time, do you want an attorney or would you like to speak with us
[Defendant]: nah I, I will, I'll speak with you I have no problem with that[.]
Defendant argues his question to Kries "cast doubt on whether he
understood his Miranda rights," and Kries's failure to clarify defendant's
understanding rendered the waiver of those rights ineffective. Again, we see
nothing in the record of oral argument or in the trial judge's decision that that
issue was previously raised in the Law Division. Defendant's counsel argued to
the trial judge suppression was warranted because defendant had invoked his
right to counsel and the totality of the circumstances were coercive. The judge
A-6022-17 12 considered: defendant's age; his "above-average intelligence"; the detailed
nature of the Miranda warnings; that the three-hour length of defendant's
interaction with police and the nearly one-hour-long statement was "certainly
not excessive"; that police did not employ "threats, trickery or persuasion or
pressure"; and that "defendant was a fire chief who was familiar with police."
The judge concluded "under the totality of the circumstances . . . [defendant's]
statement was made freely, knowingly and voluntarily" because he had been
"read his rights[,] . . . confirmed that he would speak with the officers and
specifically didn't have a problem not having a . . . lawyer."
As stated, our review is limited to the matters addressed by the trial judge,
see Witt, 223 N.J. at 419, but, again, the record is sufficiently developed to allow
our full review, see Scott, 229 N.J. at 480, under the same standard we utilized
in considering defendant's challenge to the denial of his motion to suppress
physical evidence.
First, as the trial judge found, defendant was read each of the Miranda
rights, including that he had "a right to talk with an attorney at any time and to
have [the attorney] with [him] before any questioning and during questioning[.]"
He said he understood each right.
A-6022-17 13 Further, we do not agree with defendant's contention that Kries should
have repeated the Miranda warnings after defendant asked if "this [is] something
that [he needed] legal counsel for[?]" and that Kries "could have made clear . . .
that the interrogation would cease if [defendant] wanted to consult with a
lawyer." Repeating that defendant had the right to an attorney or that
questioning would cease if defendant invoked that right would not have
answered defendant's question if he needed a lawyer. Instead Kries correctly
advised defendant, as he had done previously, he could not "give [defendant]
any legal advi[c]e, [but could] basically tell [defendant] the reason" the
detectives were there: "investigating . . . child pornography," and that defendant
was then "a suspect in that investigation." Before questioning defendant, Kries
encouraged defendant to ask any questions and asked defendant, "just for
clarification at this point and time, do you want an attorney or would you like to
speak with us[?]" Defendant did not let Kries finish the question and answered,
"nah, . . . I'll speak with you[;] I have no problem with that[.]"
Following defendant's request for advice, Kries's interrupted request for
clarification made clear that the alternative to speaking with police was to
invoke the right to counsel. As our Supreme Court reasoned in State v. Alston,
204 N.J. 614, 628 (2011), "because the detective [in that case] was not obligated
A-6022-17 14 to give [the] defendant advice about whether he should assert any of his rights,
we cannot fault his choice of words as he sought to clarify [the] defendant's
requests while avoiding giving him the advice he was seeking." As was the case
in Alston, Kries's "response was a fair recitation of the right to counsel and the
right to have the interrogation cease." See ibid. The record supports that
defendant knowingly, intelligently and voluntarily waived his fully
comprehended Miranda rights.
We determine defendant's remaining arguments on the Miranda issue,
including that the detective was "subtly misleading [when he told defendant that
there were no charges filed against him] because the officers were surely going
to arrest [defendant] at some point based on the files they had just found" on his
computer, to be without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
The detective told defendant he was a suspect in the investigation and there was
a possibility that charges would be filed against him.
III
Defendant claims his five-year probationary sentence, conditioned on
incarceration for 364 days, was manifestly excessive for the fourth -degree
crime, considering he was a fifty-seven-year-old first-time offender, with a
twenty-seven-year career of community service.
A-6022-17 15 The trial judge found aggravating factor three, N.J.S.A. 2C:44-1(a)(3),
there was a high risk that defendant would reoffend, because he: did not
accidentally download the child pornography files; accumulated the files over a
prolonged period of time on three separate occasions; and did not seek
professional help toward rehabilitation. The court also found aggravating factor
nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from
violating the law, based on the need for general and specific deterrence of child
pornography, and to promote the protection of children.
The court also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7),
based on the fact that defendant had no prior history of delinquency or criminal
activity and led a law-abiding life for fifty-seven years, and mitigating factor
ten, N.J.S.A. 2C:44-1(b)(10), noting that "if [defendant] does get the
psychosexual and mental health evaluation and help that he needs, then [the
court] think[s] he will be amenable to probation." The court ultimately afforded
substantial weight to the aggravating factors and found they preponderated over
the mitigating factors, giving slight weight to mitigating factor ten. 2
2 The court did not specify the weight it attributed to mitigating factor seven. A-6022-17 16 Defendant contends the trial court "mistakenly exercised its discretion in
giving too little weight to mitigating factors seven and ten and in concluding
that the aggravating factors preponderated."
Our review of the trial court's sentencing determination is limited. See
State v. Gardner, 113 N.J. 510, 516 (1989). "[A] sentence imposed by a trial
court is not to be upset on appeal unless it represents an abuse of the [trial]
court's discretion." Ibid. Accordingly, on appeal, our only function is to:
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found . . . to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[State v. Lawless, 214 N.J. 594, 606 (2013) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
As a general matter, "[a]n appellate court is bound to affirm a sentence, even if
it would have arrived at a different result, as long as the trial court properly
identifies and balances aggravating and mitigating factors that are supported by
competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210,
215 (1989); see also State v. Natale, 184 N.J. 458, 489 (2005).
A-6022-17 17 In view of the trial court's detailed analysis of defendant at the time of
sentencing, we discern no reason to reverse the sentence imposed. The court
recognized defendant's lack of criminal history in considering mitigating factor
seven, and also "the fact that [defendant] incurred no new charges and
maintained employment during the six-year pendency of th[e] case," noting,
"[d]uring the years since the case has worked its way through the [c]ourt system
and gone to trial, [defendant] has regained employment." The court, however,
found more compelling that defendant had not participated in "any rehabilitation
or counseling . . . since the commission of the offense. A true test of whether a
defendant is likely not to . . . re-offend will take place in the coming months and
years after the sentence has been imposed."
Defendant's contention that the court's imposition of counseling or
treatment as a condition of probation would have supported a weightier
mitigating factor ten ignores our Supreme Court's mandate that in weighing
aggravating and mitigating factors, "a defendant should be assessed as he stands
before the court on the day of sentencing," including his post-offense conduct.
State v. Jaffe, 220 N.J. 114, 116 (2014); see also State v. Randolph, 210 N.J.
330, 354 (2012). Defendant had not undertaken any therapy or counseling for
his psychosexual issues or any other underlying factor that contributed to his
A-6022-17 18 offense. A court-imposed condition of probation requiring same would not have
impacted on the weight given to mitigating factor ten; future programs do not
manifest that he would have been "particularly likely to respond affirmatively
to probationary treatment." N.J.S.A. 2C:44-1(b)(10). Likewise, they would not,
contrary to defendant's argument, have "ameliorate[d] the concerns that
animated the court's finding of aggravating factor three, that [defendant] was
drinking on a daily basis and had not sought professional help."
We find no reason to disturb the trial court's findings of aggravating and
mitigating factors as they are supported by competent evidence in the record, or
the exercise of its broad discretion in fashioning the appropriate sentence that
conforms to the sentencing guidelines and is not shocking to the judicial
conscience. See Lawless, 214 N.J. at 606.
Affirmed.
A-6022-17 19