STATE OF NEW JERSEY v. JESUS M. MELENDEZ

NOT FOR PUBLICATION WITHOUT THE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-2190-16T3

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

JESUS M. MELENDEZ and FADI
HAMADE,

    Defendants-Respondents.
___________________________________

              Submitted September 13, 2017 – Decided February 14, 2018

              Before Judges Fuentes, Manahan, and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 15-
              12-0822.

              Thomas K. Isenhour, Acting Prosecutor of Union
              County, attorney for appellant (Meredith L.
              Balo, Special Deputy Attorney General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

              Weisman DiGioia, PA, attorneys for respondent
              Jesus M. Melendez (Michael T. Simon, of
              counsel and on the brief).

              Joseph P. Depa, Jr., attorney for respondent
              Fadi Hamade, join in the brief of respondent
              Jesus M. Melendez.
PER CURIAM

     Following leave granted, the State appeals from a November

18, 2016 order that suppressed evidence seized in a warrantless

search of a jewelry store in Plainfield owned by defendant Fadi

Hamade and managed by defendant Jesus Melendez.              We affirm the

suppression order.

     Defendants were indicted on nine counts of an eleven-count

indictment arising from the search of a jewelry store in Plainfield

on August 8, 2015.     Six of the counts related to the seizure of

synthetic cannabinoid and were the subject of the suppression

motion.   These included: second-degree possession of synthetic

cannabinoid   with   intent   to   distribute,    
N.J.S.A.    2C:35-5.3(b)

(count one); third-degree possession of a controlled dangerous

substance with the intent to distribute, 
N.J.S.A. 2C:35-5(a)(1)

and 
N.J.S.A. 2C:35-5(b)(13) (count two); third-degree possession

of a controlled dangerous substance with intent to distribute on

or within 1000 feet of school property, 
N.J.S.A. 2C:35-7 (count

three);   second-degree   possession     of   a   controlled     dangerous

substance with intent to distribute within 500 feet of a public

park, 
N.J.S.A. 2C:35-7.1 (count four); third-degree possession of

a controlled dangerous substance, 
N.J.S.A. 2C:35-10(a)(1) (count




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five); and fourth-degree possession of a synthetic cannabinoid,


N.J.S.A. 2C:35-5.3(c) (count six).

     The remaining counts alleged fourth-degree possession of drug

paraphernalia with intent to distribute, 
N.J.S.A. 2C:36-3 (count

nine); fourth-degree possession of a prohibited weapon, 
N.J.S.A.

2C:39-3(e) (count ten); and fourth-degree possession of a stun

gun, 
N.J.S.A. 2C:39-3(h) (count eleven).1      The November 18, 2016

order that granted defendants' suppression motion did not suppress

evidence related to those charges.     We gather the following facts

from the record developed at the suppression motion.

                              I

     Detective Michael Metz of the Plainfield Police Department

testified that on August 8, 2015, he was assigned to the narcotics

and vice section.   As he and his partner were getting into their

unmarked vehicle, he saw two women and a man walking northbound

on Watchung Avenue in Plainfield.     He recognized one of the women,

S.L., from a previous investigation where she was found to be in

possession of synthetic cannabinoid.       He did not recognize the

second woman, Mildred Moore, who at the next intersection, made a

left turn while S.L. continued straight, crossed over and stood



1
 Co-defendant, Mildred Moore was charged along with defendants in
count five of the indictment and charged solely in counts seven
and eight. She is not a respondent here.

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on the corner.     Metz watched Moore go into the jewelry store.                    She

was there less than a minute and came out carrying a black plastic

bag.    She proceeded on Watchung Avenue, now going southbound.

Meanwhile, S.L. turned around and also was proceeding southbound

on Watchung Avenue, but looking back as if she and Moore were

going to "re-group."

       Metz    believed    that    Moore       just   had    purchased      synthetic

cannabinoid.      This was based on prior information he had from a

confidential informant, who said it was being sold from the store,

an   inter-departmental      memo    that       reported     a   juvenile    said    he

purchased synthetic cannabinoid there, and similar information

from his direct supervisor.         Metz requested that nearby units stop

Moore and investigate.            She was found to be in possession of

synthetic cannabinoid and was arrested.               Moore admitted purchasing

the drug from the jewelry store.

       After    speaking    with    his        supervisor,       Acting   Lieutenant

Christopher Sylvester, Metz "secure[d] the store to ensure no one

went back," and to ensure that "no evidence could be destroyed or

concealed." When he entered the store, Metz noticed a sweet smell,

which he believed was synthetic cannabinoid based on his experience

from past investigations.           Defendants Hamade and Melendez were

both standing behind a counter.                  Their niece, who was about

fourteen or fifteen, was in the backroom.                         Another male was

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cleaning the glass display cases.              Some displays included jewelry,

but others contained drug paraphernalia and weapons, including

expandable batons, a stun gun and gravity knives.

      Hamade told Metz that he was the owner of the store and that

Melendez was the manager.           Metz explained that he was conducting

a narcotics investigation and advised them that no one could enter

or leave the store.            He asked Hamade for consent to search the

store, explaining that if Hamade did not consent, the police would

attempt   to    obtain     a    search    warrant.     Other     police   arrived,

including Acting Lieutenant Sylvester. When Hamade did not consent

to a search, Sylvester contacted an assistant prosecutor for

approval to apply for a search warrant, and Metz left to prepare

the search warrant paperwork.

     Sylvester testified he did not threaten defendants, saying

only that "with the search warrant anybody in the store may be

arrested."      He said Hamade became "cooperative" after realizing

the officers "weren't bluffing" about obtaining a warrant and said

either "fuck it" or "forget about it," "I'll sign the paper" and

then signed the consent to search form.

     Metz testified he was only gone a short time when Sylvester

called to advise him that Hamade consented to a search of the

premises.      Metz returned to the store.           Melendez handed synthetic

cannabinoid     to   the       officers   from    behind   the   counter;     other

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cannabinoid was found in the back of the store.        Most of the

cannabinoid was commercially packaged in foil under the brand name

Scooby Snacks, like the package Moore had in her possession when

she was arrested.     The police seized a total of 5000 grams of

synthetic cannabinoid.

     Hamade testified that he knew he did not have to consent to

the search.    However, he said he was told several times that if

he did not sign the consent form, the police were going to request

a search warrant and, if obtained, then turn his niece over to

juvenile authorities, call immigration on the fourth individual,

and "take everything in the store."    He sold toys, incense, body

oils and hookahs.   The store was his "life savings" and he "didn't

want it to go."

     The trial court granted defendants' motion to suppress the

synthetic cannabinoid.     Although the trial court believed that

defendants had exaggerated their testimony, it found that "some

version" of potential repercussions was told to Hamade by the

officers.    The court noted that the comments by the police about

what would happen to the niece and to the fourth individual were

"designed to bring pressure on Hamade to consent."       The court

assessed the factors set forth in State v. King, 
44 N.J. 346

(1965), finding that Hamade's consent to the search was not

voluntary.    In addition, the court found there was "insufficient"

                                  6                        A-2190-16T3
information to establish probable cause for a search warrant and

that the police lacked a reasonable, articulable suspicion when

they stopped Moore.

     The State appeals the suppression order, claiming that Hamade

gave knowing and voluntary consent to search.    Even if the search

were unlawful, the State contends the evidence should have been

admissible under the inevitable discovery doctrine.

                               II

     Our review of the denial of a suppression motion is limited.

State v. Handy, 
206 N.J. 39, 44 (2011). We review a motion judge's

factual findings in a suppression hearing with great deference.

State v. Gonzales, 
227 N.J. 77, 101 (2016).     We "must uphold the

factual findings underlying the trial court's decision so long as

those findings are supported by sufficient credible evidence in

the record."   State v. Gamble, 
218 N.J. 412, 424 (2014).   We defer

"to those findings of the trial judge which are substantially

influenced by [the] opportunity to hear and see the witnesses and

to have the 'feel' of the case, which a reviewing court cannot

enjoy."   State v. Elders, 
192 N.J. 224, 244 (2007) (quoting State

v. Johnson, 
42 N.J. 146, 161 (1964)).

     We owe no deference, however, to the trial court's legal

conclusions or interpretation of the legal consequences that flow



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from established facts.          Our review in that regard is de novo.

State v. Watts, 
223 N.J. 503, 516 (2015).

      Both the federal and State constitutions protect citizens

against unreasonable searches and seizures.                     U.S. Const. amend.

IV;   N.J.    Const.    art.   I,    ¶    7.       "[A]    warrantless    search     is

presumptively invalid," Brown v. State, 
230 N.J. 84, 100 (2017)

(citation omitted) (quoting Gonzales, 
227 N.J. at 90), "unless

[the search] falls within one of the few well-delineated exceptions

to the warrant requirement."                    Ibid. (alteration in original)

(citations omitted) (quoting State v. Maryland, 
167 N.J. 471, 482

(2001)).       "[T]he    State      bears       the    burden    of   proving   by    a

preponderance of the evidence that a warrantless search or seizure

'falls within one of the few well-delineated exceptions to the

warrant requirement.'"         Elders, 
192 N.J. at 246 (quoting State v.

Pineiro, 
181 N.J. 13, 19-20 (2004)).

      The consent to search is a well-recognized exception.                     State

v. Domicz, 
188 N.J. 285, 305 (2006).                  Consent must be voluntarily

given.     However, it can "not be coerced, by explicit or implicit

means,   by   implied    threat      or   covert       force."        Schneckloth    v.

Bustamonte, 
412 U.S. 218, 228 (1973).                     "[T]he proper analytical

framework is whether a person has knowingly waived his right to

refuse to consent to the search."                 Domicz, 
188 N.J. at 308.           The



                                            8                               A-2190-16T3
burden is on the State to prove that consent was voluntary.                       State

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

     To determine if consent was coerced, the court must examine

the "surrounding circumstances."               Schneckloth, 
412 U.S.  at 229.

"Voluntariness is a question of fact to be determined from all the

circumstances."        Id. at 248-49.      Under the State constitution, an

essential element in determining whether consent is voluntary is

proof    that    an    individual   was    aware      of   the   right   to    refuse.

Johnson, 
68 N.J. at 353-54.

     In King, 
44 N.J. at 352-53, the Court identified a non-

exclusive       list   of   factors   to      consider      in   evaluating       if    a

defendant's consent was voluntary or coerced, cautioning, "the

existence or absence of one or more of the . . . factors is not

determinative of the issue."               The factors that tend to show

voluntariness of a consent include: "(1) that consent was given

where the accused had reason to believe that the police would find

no contraband; (2) that the defendant admitted his [or her] guilt

before    consent;      [and]   (3)   that      the    defendant     affirmatively

assisted the police officers."                Id. at 353 (citations omitted).

The factors that tend to show that consent was coerced include:

            (1) that consent was made by an individual
            already arrested; (2) that consent was
            obtained despite a denial of guilt; (3) that
            consent was obtained only after the accused
            had refused initial requests for consent to

                                          9                                   A-2190-16T3
           search; (4) that consent was given where the
           subsequent search resulted in a seizure of
           contraband which the accused must have known
           would be discovered; [and] (5) that consent
           was given while the defendant was handcuffed.

           [Id. at 352-53 (citations omitted).]

     Here, "[t]he trial court had the 'feel of the case' [and] the

opportunity to make observations of the witnesses."             Domicz, 
188 N.J. at 309 (quoting State v. Locurto, 
157 N.J. 463, 471 (1999)).

The record supported the trial court's findings that the police

discussed the repercussions of obtaining a search warrant with

defendants.     Sylvester said that everyone would be arrested and

that none of the people there were free to leave the premises.

Hamade refused consent for forty minutes, a period of time the

trial court considered "substantial."           Nonetheless, he consented

even though, as the judge found, defendants "certainly" had to be

aware of the drugs in light of the quantity that was seized.

Hamade explained he was concerned for his niece, who might be

taken   into   custody,   for   the    fourth    person   who   might   have

immigration issues, and for the disposition of all of his property

in the store.

     Predicated upon our decision that the trial court properly

held that the State failed to sustain the validity of the search

based upon consent, we do not need to address the determination



                                      10                           A-2190-16T3
that there was insufficient probable cause to obtain a search

warrant.

    Affirmed.




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