                                NOT FOR PUBLICATION WITHOUT THE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-5530-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MIKIEL A. ADL,

     Defendant-Appellant.
__________________________

                   Argued May 6, 2019 – Decided August 7, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment Nos. 11-07-
                   1083, 11-07-1088 and 11-12-1872.

                   Lauren S. Michaels, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Lauren S. Michaels, of
                   counsel and on the briefs).

                   Jane C. Schuster, Assistant Attorney General, argued
                   the cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Jane C. Schuster, of counsel and on
                   the briefs).
PER CURIAM

      Defendant Mikiel Adl was indicted for controlled dangerous substance

(CDS) and weapons offenses arising out of a warrantless search of a house in

Edison. Following the trial court's denial of his motion to suppress evidence

seized in that search, defendant reached a global plea agreement involving that

indictment and two other indictments.       He pled guilty to second-degree

conspiracy to distribute CDS while in possession of a firearm and second-degree

certain persons not to possess a weapon, which both arose out of the warrantless

search, and second-degree witness tampering. In accordance with the plea

agreement, he was later sentenced to an aggregate prison term of twelve years

with a six-year period of parole ineligibility.    Pursuant to Rule 3:5-7(d),

defendant preserved his right to appeal the denial of his suppression motion.

      Defendant raises the following arguments on appeal:

            POINT I

            BECAUSE NEITHER THE ARREST WARRANT
            FOR A NON-RESIDENT NOR CONSENT OR
            APPARENT AUTHORITY ALLOWED POLICE TO
            ENTER AND SEARCH THE HOME, THE MOTION
            TO SUPPRESS SHOULD HAVE BEEN GRANTED.

                  A. The Police Entry Into The Dwelling Cannot
                  Be Justified By The Arrest Warrant For Non-
                  Resident Bradley.


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                                       2
                  B. Adl's Act Of "Stepping Aside" For The Police
                  Did Not Equate To Consent To Enter.

                  C. Adl's Act Of Answering The Door Did Not,
                  By Itself, Provide The Police With A Reasonable
                  Basis To Believe That He Had Apparent
                  Authority To Consent To A Search Of The
                  Premises.

                  D. The State Has Waived Any Exigent-
                  Circumstances Argument By Declining To Raise
                  It Below.

            POINT II

            BECAUSE    THE    IMPOSITION    OF  THE
            DISCRETIONARY PAROLE BAR VIOLATED
            ALLEYNE V. UNITED STATES, THE PAROLE
            DISQUALIFIER ON THE WITNESS-TAMPERING
            COUNT MUST BE VACATED.           IN THE
            ALTERNATIVE, BECAUSE THE SENTENCING
            JUDGE IMPOSED A DISCRETIONARY PAROLE
            BAR WITHOUT ARTICULATING ITS REASONS
            FOR DOING SO, RESENTENCING IS REQUIRED.

                  A. The Imposition Of The Discretionary Parole
                  Bar Violated Our State And Federal
                  Constitutions.

                  B. Alternatively, The Sentencing Judge Imposed
                  The Discretionary Parole Bar Without Making
                  The Requisite Findings, And Therefore,
                  Resentencing Is Required.

      Prior to oral argument, we requested the parties to submit supplemental

briefs addressing the implications of our decision in State v. Bradley, Nos. A-


                                                                       A-5530-16T3
                                      3
3707-15, A-0060-16 (App. Div. Sep. 28, 2018), certif. denied, 237 N.J. 318

(2019), where we reversed the decision of a different trial court denying a

similar motion to suppress evidence arising from the same warrantless search

that defendant sought to suppress, and our Supreme Court's decision in State v.

Kiriakakis, 235 N.J. 420 (2018), regarding the constitutionality of imposing a

period of parole ineligibility on the witness tampering conviction under N.J.S.A.

2C:43-6(b) without a jury trial. In his submission, defendant argues:

            POINT I

            THE COURT PROPERLY RECOGNIZED IN
            BRADLEY THAT THE EXACT SAME ENTRY AND
            SEARCH AT ISSUE IN THIS CASE WAS
            UNCONSTITUTIONAL, AND BECAUSE THE
            FACTS ADDUCED AT BRADLEY'S AND ADL'S
            SUPPRESSION HEARING[S] WERE LEGALLY
            INDISTINGUISHABLE.    SUPPRESSION   IS
            REQUIRED.

            POINT II

            ALTHOUGH THE ISSUE RAISED IN POINT [II A]
            OF   DEFENDANT'S   OPENING      BRIEF  IS
            CONTROLLED BY THE SUPREME COURT'S
            DECISION  IN   STATE    V.    KIRIAKAKIS,
            RESENTENCING IS STILL REQUIRED FOR THE
            REASONS EXPRESSED IN POINT [II B].

      Having considered these arguments in light of the applicable law and the

record, we reverse the denial of defendant's motion to suppress based on


                                                                         A-5530-16T3
                                       4
essentially the same reasoning we followed in Bradley, as applied to the present

record. Accordingly, we vacate the convictions for second-degree conspiracy

to distribute CDS while in possession of a firearm and second-degree certain

persons not to possess weapons, and remand so that defendant can move to

vacate his guilty pleas. That being said, for the sake of completeness, we

conclude the record does not support his contention that the court did not set

forth its reasons for imposing a discretionary parole disqualifier for the witness

tampering charge – which he now concedes did not violate his constitutional

rights.

                                         I

      Since the events leading up to the law enforcement officers' decision to

conduct the warrantless search were fully detailed in Bradley, we need not repeat

them here. Suffice it to say, that more than ten police officers went to the Edison

house to execute an arrest warrant against Malcom A. Bradley – believing he

was present in the house – who was accused of fatally shooting a victim while

they were in separate cars waiting at a stoplight in Plainfield. As a result of the

evidence seized during the warrantless search, defendant and five co-defendants,

including Bradley, were charged in forty-nine counts of Indictment No. 11-07-

01083. Defendant was named in eight of those counts; CDS and weapons


                                                                           A-5530-16T3
                                        5
offenses, and a charge of second-degree conspiracy to distribute CDS while in

possession of a firearm, N.J.S.A. 2C:39-4.1 and 2C:5-2. On that same date, the

one-count Indictment No. 11-07-01088, also arising from the warrantless search,

charged him with second-degree certain persons not to possess a weapon,

N.J.S.A. 2C:39-7.

      Defendant moved to suppress the evidence seized in the warrantless

search. At the suppression hearing, the State presented the sole testimony of

Sergeant Michael Triarsi of the Union County Prosecutor's Office. He stated

that at 11:44 p.m. on March 25, 2011, possessing an arrest warrant, he knocked

on the door of a house in Edison to apprehend Bradley. He was wearing plain

clothes and had a police badge around his neck. Law enforcement did not know

that defendant was present in the house nor did they suspect him of any

wrongdoing at that time.

      According to Sgt. Triarsi, a man, who he later identified as defendant,

opened the door. Sgt. Triarsi asked, "where is he [?]" and defendant stepped to

the side, which Sgt. Triarsi said he understood to mean "[c]ome on in." The

officers located Bradley in the den located to the right of the front door. The

officers found a handgun "underneath" Bradley and observed narcotics, baggies,

and "things of that nature" in his immediate vicinity. The police arrested


                                                                       A-5530-16T3
                                      6
Bradley, secured defendant and his girlfriend Heather Ganz, along with three

other occupants, and applied for a search warrant.          Bradley admitted to

possession of the handgun and the narcotics in his vicinity, but denied

possession of anything else in the house. During the subsequent warrant search,

additional contraband was found.

      In addition to Sgt. Triarsi's testimony, the State played the home

surveillance video, which it obtained from co-defendant Ganz. The video was

not played at Bradley's motion to suppress hearing. Although the video is blurry

and interrupted by flashes of light, it shows that when Sgt. Triarsi knocked on

the front door there were two other law enforcement officers on the steps directly

behind him. The officers do not appear to have their guns drawn, although they

are holding their right hands close to their sides. It appears from the video that

after defendant opened the door, he moved left, and Sgt. Triarsi and two officers

on the steps entered the residence followed by six other officers, some of whom

appear to be in uniform.

      Defendant was the only witness presented on his behalf. He testified that

as he opened the door to leave the house the police shined a light in his face,

threw him to the ground and handcuffed him. Although he was dating Ganz at




                                                                          A-5530-16T3
                                        7
the time of the search, he denied having the authority to let anyone into the house

and said that it was not his intention to let the police enter.

      After reserving decision, the court issued an order and a written decision

denying the motion to suppress. 1 The decision was based upon the court's

assessment of whether there was an exception to the prohibition against

warrantless searches because defendant gave third-party consent to the police to

search the house. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). The court

found the police officers' belief that defendant had the authority to consent to a

search was objectively reasonable in view of the attendant facts and

circumstances. Id. at 188-89; State v. Bruzzese, 94 N.J. 210, 219, 221 (1983).

The court held:

             Based on all the testimony presented . . . , the facts
             establish that [defendant] opened the door in response
             to the police knocking; he did not object to police entry
             or state in any way, shape, or form that the police were
             not allowed to come in; police asked about Bradley's
             presence and [defendant] stepped aside in response to
             the question. The act of stepping aside by [defendant]
             can fairly be interpreted as granting permission to enter
             the premises. The reasonableness of that inference is
             also buttressed by [defendant's] failure to verbalize any
             objection to the officer's search into the residence.[]

1
  Although the court was aware that Bradley had previously moved in Middlesex
and Union vicinages to suppress the evidence obtained from the warrantless
search of the house, there is no indication in the record that the court was aware
of those rulings or reviewed the transcripts or opinions rendered in those cases.
                                                                           A-5530-16T3
                                         8
            Based on these circumstances, the court finds that the
            police had an objectively reasonable basis to believe
            that [defendant] possessed common authority over the
            property to be searched and that his actions and
            inactions granted the officers consent to enter the
            residence.

      Ten months later, defendant reached a global plea agreement resolving

three indictments. He pled guilty to second-degree conspiracy to distribute CDS

while in possession of a firearm under Indictment No. 11-07-01083 (count two)

and second-degree certain persons not to possess weapons under Indictment No.

11-07-01088 (count one).     He also pled guilty to second-degree witness

tampering under Indictment No. 11-12-01872 (count three), which arose from a

separate incident involving threats defendant made to a woman arising from

their mutual involvement in a legal proceeding. In accordance with the plea

agreement, defendant was sentenced to: a six-year prison term with a three-year

parole bar for second-degree conspiracy to distribute CDS while in possession

of a firearm; a five-year prison term with a five-year parole bar for second-

degree certain persons not to possess weapons to run concurrent to the CDS

offense; and a six-year prison term with a discretionary three-year parole bar

under N.J.S.A. 2C:43-6(b) for second-degree witness tampering to run

consecutive to the CDS offense and to run concurrent to the certain persons

offense.

                                                                       A-5530-16T3
                                      9
                                        II

      We first address defendant's contention that the trial court erred in denying

his motion to suppress because the law enforcement officers' warrantless search

in the house was not justified because they did not have valid consent to enter

the house to execute the arrest warrant against Bradley. The State disagrees

based upon the court's factual findings and legal conclusions that valid consent

to enter the house was given by defendant. 2

      Under our standard of review, we must defer to the trial court's findings

of fact "so long as those findings are supported by sufficient evidence in the

record." State v. Hubbard, 222 N.J. 249, 262 (2015) (internal citations omitted);

see also State v. Gonzales, 227 N.J. 77, 101 (2016) (recognizing that factual

findings will be upheld if there is sufficient credible evidence in the record to

support the findings).




2
  Issues regarding the scope of the law enforcement officers' execution of the
arrest warrant and the search incident to an arrest, and whether there were
exigent circumstances to enter the house, were not present in this appeal as they
were in Bradley.
                                                                           A-5530-16T3
                                       10
      However, we owe no deference to the trial court's conclusions of law. See

State v. Hinton, 216 N.J. 211, 228 (2013) (internal citations omitted). Nor are

we "obliged to defer to clearly mistaken findings . . . that are not supported by

sufficient credible evidence in the record." State v. Gibson, 218 N.J. 277 (2014).

      To a considerable extent, the court's ruling on the suppression motion

embody a mixture of factual and legal determinations, and the significance,

under search-and-seizure principles, of factual details that emerged at the

hearing. Our scope of review is therefore a mixed one, depending upon the

particular facet of the trial court's decision in question.

      It is well-established that a resident of property may vitiate the warrant

requirement by consenting to a search by the police. State v. Domicz, 188 N.J.

285, 305 (2006); see also State v. Legette, 227 N.J. 460, 474-75 (2017) (ruling

the State failed to establish consent to justify the warrantless police search of a

residence).

      An "essential element" of such consent to conduct a warrantless search is

the individual's "knowledge of the right to refuse [it]." State v. Johnson, 68 N.J.

349, 353-54 (1975); see also Legette, 227 N.J. at 475 (reversing a finding of

consent by a defendant who had been stopped by an officer on a reasonable

suspicion of illegal drug use, because the State had not shown the defendant


                                                                           A-5530-16T3
                                        11
"thought he could refuse [the officer's] search into his apartment").        In a

noncustodial setting such as the present one, the State does not necessarily have

to establish that police officers expressly advised the person who allowed their

search of the right to refuse consent, but that burden remains on the State to

demonstrate that person's knowledge of right to refuse. Johnson, 68 N.J. at 354.

         "[C]onsent to a warrantless search . . . must be shown to be unequivocal,

voluntary, knowing, and intelligent." State v. Sugar, 108 N.J. 151, 156 (1987).

Consent is a factual question determined by an examination of the totality of the

circumstances. State v. Koedatich, 112 N.J. 225, 264 (1988).

         Applying these legal standards, as we did in Bradley, we respectfully

disagree with the court's conclusion that defendant's opening of the house's front

door and standing to the side, gave the large group of assembled police officers

valid consent to enter and search the dwelling. Sgt. Triarsi did not testify that

he or any of the other officers present advised defendant of his right to refuse

consent. Nor did the State establish that defendant was already aware of that

right.

         The video clearly shows that defendant leaned aside after he encountered

the officers at the door.      See State v. S.S., 229 N.J. 360, 374-81 (2017)

(clarifying the limited scope of appellate review of factual findings based on


                                                                          A-5530-16T3
                                        12
video evidence, but declaring that "[a]ppellate courts have an important role in

taking corrective action when factual findings are so clearly mistake – so wide

of the mark – that the interest of justice demand intervention"); see also State v.

A.M., 237 N.J. 384, 395-96 (2019). This is insufficient proof that he knowingly

and voluntarily consented to their search into the dwelling. Wearing garb that

identified him as a law enforcement officer, Sgt. Triarsi knocked on the door

with several other officers assembled behind him. Rather than identify himself

or converse with defendant, Sgt. Triarsi immediately demanded to know

"[W]here is he[?]"; referring to Bradley.

      The totality of circumstances objectively would have been intimidating or

alarming for a citizen opening the door to this encounter. As the Court observed

in Johnson, "[m]any persons, perhaps most, would view the request of a police

officer to make a search as having the force of law." 68 N.J. at 354. Hence,

"[u]nless it is shown by the State that the person involved knew that he had the

right to refuse to accede to such a request, his assenting to the search is not

meaningful." Ibid.; see also State v. Rice, 115 N.J. Super. 128, 130-31 (App.

Div. 1971) (ruling that where a police officer knocked on an apartment door and

entered, without any words being spoken between the officer and the person who




                                                                           A-5530-16T3
                                       13
opened the door, the search was not with knowing consent and instead was, "[a]t

best . . . permitted in submission to authority").

      Accordingly, we are constrained to rule that the court's conclusion that

defendant's actions and inactions granted the officers consent to enter the

residence is unpersuasive and not supported by substantial credible evidence.

We thus conclude the consent exception to a warrantless search does not apply.

      We likewise are unpersuaded that the record suffices to establish

defendant had apparent authority to allow the officers into this private dwelling.

The United States Supreme Court has applied the apparent authority doctrine

"when officers enter without a warrant because they reasonably (though

erroneously) believe that the person who has consented to their search is a

resident of the premises[.]" Rodriguez, 497 U.S. at 186 (emphasis added); see

also Georgia v. Randolph, 547 U.S. 103, 109 (2006) (noting that police may

reasonably rely upon consent given by "a co-occupant whom the police

reasonably, but erroneously, believe to possess shared authority as an occupant."

(emphasis added)).

      The Court has warned in this context that Fourth Amendment rights must

not be "eroded . . . by unrealistic doctrines of 'apparent authority.'" Stoner v.

California, 376 U.S. 483, 488 (1964). The trial court's analysis here threatens


                                                                          A-5530-16T3
                                        14
such an erosion. It is not objectively reasonable for police to assume that

whenever an adult answers a door to a dwelling, the adult has the apparent

authority to consent to the police entering.

      None of the officers asked defendant if he owned or lived in the house.

They obtained no information before entering about his reason for being on the

premises. Defendant's mere conduct in opening the door in response to Sgt.

Triarsi's knocking, and in thereafter leaning his body away from the officers'

path, does not provide sufficient objective indicia that he possessed the right to

decide who may enter the premises.

      Indeed, the police appeared to know little about the house other than they

suspected Bradley was inside. They had no information about who lived there

or whether defendant was their relative or a guest of the residents. There simply

is not enough evidence in this record to conclude, as a matter of law, that

defendant possessed the apparent authority to consent to the police search.

      Having concluded that the record or the applicable law does not support

the consent exceptions to the warrant requirement, we must consider the

ramifications of that conclusion. It is clear that the firearm and CDS that were

seized from the house after their illegal warrantless search were "fruits of the

poisonous tree" and should have been suppressed. See State v. O'Neill, 193 N.J.


                                                                          A-5530-16T3
                                       15
148, 171 n.13 (2007). Consequently, this matter must be remanded to afford

defendant an opportunity to withdraw his guilty pleas to three offenses and have

the judgment of conviction vacated.

                                       III

      In his initial appellate brief, defendant contends a remand is necessary for

resentencing because the imposition of a discretionary parole bar on the witness

tampering conviction violated Alleyne v. United States, 570 U.S. 99 (2013).

However, in his supplemental brief, he acknowledges that our Supreme Court

rejected the identical argument in State v. Kiriakakis, 235 N.J. 420, 442 (2018).

Yet, he continues to press forward with the alternative argument he initially

raised that the court imposed a discretionary parole bar without articulating its

reasons for doing so. State v. Bessix, 309 N.J. Super. 126, 129-30 (App. Div.

1998); see also State v. Sainz, 107 N.J. 283, 290 (1987).

      Normally, we would not address this issue because we reverse the court's

denial of defendant's motion to suppress and, therefore, a remand is necessary

so that defendant can withdraw his guilty pleas. However, for the sake of

completeness, we address and reject defendant's remaining contention.

      The record clearly provides that the court set forth its reasons for imposing

defendant's sentence in accordance with the plea agreement. In weighing the


                                                                           A-5530-16T3
                                       16
sentencing factors, the court noted defendant's age and his extensive and

significant criminal history (including parole violations) and concluded that

aggravating factor three, N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense), applied.

The court specifically found that no mitigating factors applied. Thus, there is

no basis for a remand based upon alleged errors made at sentencing.

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




                                                                           A-5530-16T3
                                       17
