                                 NOT FOR PUBLICATION WITHOUT THE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-4110-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SAOUL MONTALVO,

          Defendant-Appellant.


                   Submitted May 27, 2020 – Decided June 26, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 16-05-1527.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Rochelle Mareka Amelia Watson, Deputy
                   Public Defender II, of counsel and on the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Hannah Faye Kurt,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Following denial of his motion to suppress evidence seized from his home

pursuant to a search warrant, defendant Saoul Montalvo pled guilty to second-

and fourth-degree weapons offenses. Defendant was sentenced to an aggregate

prison term of seven years; he must serve forty-two months before he is eligible

for parole pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).

      The sole issue on this appeal is whether the Law Division judge erred in

upholding the search under the independent source doctrine after finding the

police improperly entered defendant's apartment to conduct a protective sweep

before the warrant was issued.       Defendant raises a single point for our

consideration:

            THE INDEPENDENT SOURCE DOCTRINE DOES
            NOT EXCUSE THE WARRANTLESS SEARCH OF
            DEFENDANT'S HOME, WHICH WAS ILLEGALLY
            SEARCHED PURSUANT TO THE POLICE
            DEPARTMENT'S    "NORMAL    PROCEDURE"
            BEFORE APPLYING FOR A WARRANT.

We reject defendant's contentions and affirm.

      On February 29, 2016, at 6:10 p.m., another Law Division judge issued

the warrant, which was supported by the affidavit of Noel Mendez, a detective

assigned to the Essex County Sherriff's Bureau of Narcotics (SBON).

According to the affidavit, earlier that day, a confidential informant told Mendez

a black male known by the street name, "Tall Dog," was selling crack cocaine

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                                        2
from his apartment in Newark. The informant gave Mendez an exact street

address and apartment number for the residence, and said it was located on the

first floor and faced a particular avenue.       The informant also provided

identifying information about the suspect, including his specific height,

approximate weight and age, and that he had a "bald head and thin goatee." The

informant told Mendez the suspect "ran his narcotic distribution scheme at all

hours of the day and only dealt with people he knew." Mendez averred the

informant had "provided reliable information in the past resulting in the arrest

of numerous individuals for violating New Jersey's narcotics laws."

      At the two-day testimonial hearing, Bloomfield Police Detective Anthony

Piccinno, who was assigned to the SBON at the time of the incident, was the

only witness to testify on behalf of the State. 1 Midday on February 29, after the

informant told Mendez the details summarized above, Piccinno and Mendez set

up "a clear and unobstructed view of [defendant's] residence." From his vantage

point – in an undercover vehicle located about twenty-five yards from the



1
   Defendant did not testify, but presented the testimony of two witnesses, who
attempted to establish defendant was at a fitness center at the time of the
incident. Despite three attempts by defense counsel to subpoena Mendez, he did
not appear. The motion judge denied defendant's request for an adverse
inference charge regarding Mendez's non-appearance. Defendant does not
appeal that determination.
                                                                          A-4110-17T2
                                        3
building – Piccinno saw "an individual peering out the window," who matched

the informant's description of defendant "from the neck up."           During the

detectives' surveillance, a black Kia automobile driven by Antonio Brown pulled

up and parked nearby. From the "bay window," defendant gestured to Brown,

who turned the Kia around and parked in front of defendant's building.

      Defendant approached Brown's car and the two men exchanged cash and

"an unknown item." Based on his training and experience, Piccinno believed

defendant and Brown had engaged in a narcotics transaction. Within minutes,

backup detectives arrived; defendant and Brown were searched incident to their

ensuing arrests. Police seized $201.42 and a set of keys from defendant, and a

bag of crack cocaine and $379 from Brown.

      Piccinno, Mendez, and two other detectives, including a sergeant, entered

the building "to secure the residence because" they "were applying for an

emergent search warrant." Piccinno explained the basis for the application was

"[t]he information that [they] received . . . that the sales were being made out of

. . . the apartment, or residence. And they were being made at all times a [sic]

day to . . . people that [defendant] pretty much knew, not strangers." Piccinno

testified defendant's sale of narcotics to Brown was "part of the basis for [the]

application."


                                                                           A-4110-17T2
                                        4
      Piccinno described the building as a "boarding house," with a common

hallway that led to defendant's room at its end; four people were present in the

hallway; the door to defendant's room was open. The detectives entered the

room, which only contained "an armoire, a nightstand, and a bed."          They

conducted "a cursory search to make sure there was [sic] no individuals inside.

Just basically, you know stepped in. 'Yo. Yo. Yo.' You know, yelled. And as

[they] stepped inside, [they] observed . . . a silver and black handgun on the

nightstand to the right of the bed." The search was "cursory" "to be sure that no

one [wa]s in the apartment for officer safety, and the destruction of evi dence."

When asked by the prosecutor, whether that "action" was "part of the normal

procedure" when "apply[ing] for an emergent search . . . warrant of a location,"

Piccinni stated, "yes[, w]e secure the premises." Police did not seize the gun

during that search.

      In addition to detailing the informant's tip in his affidavit, Mendez

described "the sequence of events" that culminated in defendant's arrest, which

was consistent with Piccinno's testimony at the hearing. Mendez described the

detectives' observations of the handgun – and additional drugs – as follows:

            When the detectives arrived at the location, the front
            door was open. Detectives were able to see in plain
            view a black and silver colored handgun on top of a
            small table by the bed and additional controlled

                                                                         A-4110-17T2
                                       5
            dangerous substances in plain view on top of the
            dresser. Detectives did look for additional individuals
            in the apartment with negative results. The apartment
            was then secured with Detectives Rickards and Zepeda
            standing guard.

The affidavit did not mention that the detectives entered the apartment to secure

it before they saw the handgun and drugs. After the warrant was issued, the

police seized those items from defendant's premises. The ensuing indictment

charged defendant with seventeen counts of drug and weapons offenses. 2

      Following argument and supplemental briefing, the motion judge issued a

cogent written decision, denying defendant's suppression motion. In doing so,

the judge concluded the protective sweep was not justified under State v. Davila,

203 N.J. 97, 101 (2010), where the Supreme Court recognized a protective

sweep is permitted when:      "(1) police officers are lawfully within private

premises for a legitimate purpose, which may include consent to enter; and (2)

the officers on the scene have a reasonable articulable suspicion that the area to

be swept harbors an individual posing a danger." Id. at 102.

      The judge correctly determined police had not lawfully entered

defendant's home because they did not have a search warrant or consent to enter,


2
  Brown was charged with third-degree possession of cocaine, N.J.S.A. 2C:35-
10(a) in the same indictment as defendant, and joined in defendant's suppression
motion; he is not a party to this appeal.
                                                                          A-4110-17T2
                                        6
and Piccinno did not articulate reasonable suspicion that the premises "harbored

an individual posing a danger to law enforcement." Because detectives had not

lawfully entered defendant's room, the judge accordingly determined the gun

and drugs were not lawfully seized pursuant to the plain view exception to the

warrant requirement.

      But the motion judge found the evidence was admissible under the

independent source doctrine. Citing State v. Holland, 176 N.J. 344, 354 (2003),

the judge explained the doctrine may be invoked if "the State can prove that

incriminating evidence was seized lawfully" even though "an earlier

constitutional violation had occurred." The judge summarized his understanding

of the three elements of the doctrine, recognized by our Supreme Court in

Holland: "(1) the State had probable cause to conduct the search at issue absent

the unlawfully-obtained information; (2) the State, 'without the tainted

knowledge or evidence,' would have sought a proper warrant; and (3) the initial

impermissible search was 'not the product of flagrant police misconduct.'" See

id. at 360-61.

      Applying that test, the motion judge found "the State had probable cause

to conduct the search absent the unlawful entry and tainted observation of the

silver handgun and [drugs] on the dresser." Citing our decision in State v.


                                                                        A-4110-17T2
                                       7
Ortense, 174 N.J. Super. 453 (App. Div. 1980), the judge recognized Mendez's

application mixed lawfully and unlawfully seized evidence, but concluded the

officers "had probable cause to secure a search warrant absent [their tainted]

observations."

      The judge further determined the detectives' "quick cursory sweep,"

during which they "did not seize any items" did not amount to flagrant police

misconduct. Citing Nix v. Williams, 467 U.S. 431, 443 (1984), the judge

concluded the State should not be placed in a worse position due to the earlier

police error because an independent source existed for the discovery of the

evidence. The judge elaborated:

            The combined evidence of the [informant's] tip of a
            man known as "Tall Dog" selling drugs from his
            apartment; detectives while conducting surveillance
            confirming that [d]efendant . . . matched the exact
            description given by the [informant]; detectives
            observing, with a clear and unobstructed view,
            [d]efendant . . . signal to . . . Brown from the window
            inside [defendant's] apartment; detectives observing
            [d]efendant . . . exit the apartment and engage in [a]
            hand[-]to[-]hand narcotics transaction outside his
            residence; [and] detectives recovering drugs from a
            search incident to arrest, alone created probable cause
            to issue the search warrant.

      The motion judge therefore found no reason to suppress evidence that the

police would have discovered wholly independent of the unlawful entry. In


                                                                       A-4110-17T2
                                      8
doing so, the judge rejected defendant's contentions that the detectives gained

access to his locked door with the keys they took from defendant following his

arrest, and the "detectives used the illegal search to secure a warrant for the later

search." Instead, the judge found credible Piccinno's testimony, noting the

detective "spoke clearly and with a calm demeanor." Observing "tough, rapid

[-]fire questions" were posed on cross-examination, the judge found Piccinno's

"testimony did not waiver." The judge expressly found Piccinno "did not testify

with an intent to deceive or be elusive," concluding "nothing was presented" that

caused the judge to question the detective's credibility.

      Our review of a trial court's decision on a suppression motion is

circumscribed. See State v. Robinson, 200 N.J. 1, 15 (2009). We defer to the

court's factual and credibility findings "so long as those findings are supported

by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412,

424 (2014). Deference is afforded because the "findings of the trial judge . . .

are substantially influenced by his opportunity to hear and see the witnesses and

to have the 'feel' of the case, which a reviewing court cannot enjoy." State v.

Reece, 222 N.J. 154, 166 (2015) (alteration in original) (quoting State v.

Locurto, 157 N.J. 463, 471 (1999)). We disregard a trial court's factual and

credibility findings only if clearly mistaken. State v. Hubbard, 222 N.J. 249,


                                                                             A-4110-17T2
                                         9
262 (2015). The legal conclusions of the trial court, however, are reviewed de

novo. Id. at 263.

      We need not reiterate the well-established search and seizure requirements

that weave the framework of our federal and state constitutions. See U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7. It is well settled that a warrantless search is

"presumptively unlawful." State v. Shaw, 237 N.J. 588, 608 (2019). To avoid

exclusion, the State must prove the search fell within an exception to the

exclusionary rule. See State v. Bryant, 227 N.J. 60, 71 (2016). One such

exception is the independent source doctrine, Holland, 176 N.J. at 354, the

application of which the motion judge correctly summarized. We further note

the State must establish all three prongs of the test enunciated by the Court in

Holland by clear and convincing evidence, and its failure to satisfy any one

prong will result in suppression. 176 N.J at 362-63.

      On this appeal, defendant challenges the judge's findings on the first and

third Holland factors, claiming:     "without the unlawful observation of the

handgun on the dresser, there was no probable cause to search [defendant]'s

apartment" (factor one); and "the police misconduct was flagrant" (factor




                                                                           A-4110-17T2
                                       10
three).3   As to the first factor, defendant challenges the reliability of the

informant's "tip."    Regarding the third factor, defendant argues police

improperly entered his home, in part, to prevent the destruction of evidence,

which is not a valid reason for entry under the protective sweep doctrine.

      As to the first factor, in many instances, the unlawfully obtained

information becomes part of the affidavit proffered in support of the search

warrant. See, e.g., id. at 349-51 (describing unlawfully obtained information

that was included in the search warrant application). Generally speaking, "if an

affidavit submitted in support of an application for a search warrant contains

lawfully obtained information which establishes the probable cause required for

a search, evidence obtained pursuant to the warrant will not be suppressed on

the ground that the affidavit also contains false or unlawfully obtained

information." State v. Chaney, 318 N.J. Super. 217, 221 (App. Div. 1999)

(citations omitted); see also State v. Howery, 80 N.J. 563, 567 (1979)




3
   Although defendant does not challenge the second Holland factor – and the
fact that police in this case ultimately applied for a warrant is not dispositive
that they would have done so absent the "knowledge or evidence that they
previously had acquired or viewed," 176 N.J. at 361 – Piccinno testified before
they entered defendant's home, the basis for the warrant application was the
information provided by the informant and the corroborating sale in police
presence.
                                                                         A-4110-17T2
                                      11
(permitting judicial excising of an affiant's misstatements to determine whether

probable cause exists to support the search warrant without those statements).

      Guided by those principles, we are convinced the motion judge properly

applied the first Holland factor and correctly determined the detectives had

independent, probable cause to obtain a valid search warrant apart from the

inclusion of the tainted handgun and drugs observed in defendant's home during

the detectives' unauthorized protective sweep. See Chaney, 318 N.J. Super. at

221. That other information – as accurately summarized by the motion judge –

included the specific details provided by the informant, which were corroborated

shortly thereafter by the detectives' observations. The motion judge expressly

found credible Piccinno's testimony concerning those observations, thereby

rendering the informant's "tip" reliable.

      Turning to the third Holland factor, defendant claims the police

misconduct was flagrant because the law prescribing protective sweeps is well

settled. According to defendant, "even more troubling, Piccinno testified that

the police department, as a matter of 'normal procedure,' perform [sic] these

unlawful 'protective sweeps' whenever they [sic] intend on obtaining an

emergent search warrant." We are not persuaded by either contention and

examine each in turn.


                                                                        A-4110-17T2
                                       12
      "Flagrancy" has been described as "a high bar, requiring active disregard

of proper procedure, or overt attempts to undermine constitutional protections."

State v. Camey, 239 N.J. 282, 310 (2019) (applying the independent source

doctrine to DNA buccal swab searches).               Similarly, Merriam-Webster's

dictionary defines "flagrant" as "conspicuously offensive[;] . . . so obviously

inconsistent with what is right or proper as to appear to be a flouting of law or

morality."    Flagrant, Merriam-Webster, https://www.merriam-webster.com

/dictionary/flagrant (last accessed June 9, 2020).

      In his analysis, the motion judge found the impermissible protective

sweep did not rise to flagrant police misconduct because the sweep was "quick"

and "cursory" and the detectives "did not seize any items." Notably, the judge

credited Piccinno's testimony that the door was open when police entered.

Those findings are entitled to our deference. Gamble, 218 N.J. at 424. We

recognize, however, that the result likely would have been different had the

sweep occurred after our Supreme Court's decision in Brown v. State, 230 N.J.

84, 110-12 (2017) (holding that absent "true exigency and probable cause"

police may not enter a residence to secure it to prevent the destruction of

evidence, while awaiting approval of a search warrant). We fully expect that by

now – more than four years after the search in this incident – the Essex County


                                                                          A-4110-17T2
                                       13
Prosecutor and Sheriff have instructed their personnel in accordance with the

Court's holding in Brown.

      Turning to defendant's belated contention concerning the "normal

procedure" employed by the detectives when applying for an emergent search

warrant, we observe Piccinno's answer to the prosecutor's inquiry regarding that

procedure was vague and not fully explored in the record:

            PROSECUTOR: All right, so is this part of the normal
            procedure, that when you apply for an emergent search
            -- search warrant of a location to take the action that
            you did?

            PICCINNO: We sec -- yes. We secure the premises.

      No other questions were elicited on direct or cross-examination regarding

the SBON's standard operating procedure for conducting protective sweeps

before obtaining a search warrant.     We cannot determine from that single

response whether the Davila factors were met before Piccinno and the SBON

detectives conducted protective sweeps in prior cases. In our view, Piccinno's

response does not support defendant's argument that the SBON "operated as

though there is a protective sweep exception to the warrant requirement." In

view of the totality of circumstances in this case, defendant has not established

that the judge's ruling was clearly mistaken, warranting our intervention.

Hubbard, 222 N.J. at 262.

                                                                         A-4110-17T2
                                      14
      We are satisfied that under the test set forth in Holland, the informant's

information – as corroborated by the detectives' observations and the sale of

narcotics from defendant to Brown – established probable cause for issuance of

the warrant, without the evidence the detectives observed when they improperly

entered and conducted a protective sweep of defendant's home. Because the

evidence at issue would have been discovered and lawfully seized upon

execution of that warrant, we uphold the denial of the suppression motion based

on the independent source doctrine.

      To the extent not specifically addressed, defendant's remaining arguments

are without sufficient merit to warrant discussion in this written opinion. R.

2:11-3(e)(2).

      Affirmed.




                                                                        A-4110-17T2
                                      15
