STATE OF NEW JERSEY v. STANLEY R. DAVIS, JR

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6022-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

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).
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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.

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

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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

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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.

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.

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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

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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.

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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.
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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
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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

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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.

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