                                 NOT FOR PUBLICATION WITHOUT THE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-2848-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

KENNETH C. FRANCIS,

     Defendant-Appellant.
_______________________

                   Submitted April 29, 2020 – Decided May 14. 2020

                   Before Judges Fuentes and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 17-11-0199.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele Erica Friedman, Assistant Deputy
                   Public Defender, of counsel and on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Frank Muroski, Deputy Attorney General,
                   of counsel and on the brief).

PER CURIAM
      Defendant appeals from a November 2, 2016 order denying his

suppression motion. We affirm, substantially for the reasons outlined in Judge

James M. Blaney's concise, thoughtful oral opinion.

      We briefly summarize the facts leading to defendant's conviction and

sentence. On April 25, 2016, Officer Francis Falcicchio was working in the

Parole Fugitive Unit and was assigned to the United States Marshals Service

Regional Fugitive Task Forces. That day, he executed an arrest warrant for

defendant's son, Eric. Prior to this arrest, another member of the Task Forces

team recollected there was a Federal immigration "warrant" for defendant, based

on defendant's illegal reentry into the United States.

      When law enforcement went to arrest defendant's son, Officer Falcicchio

encountered an unknown adult male, later identified as defendant, in the living

room. At first, defendant was reluctant to disclose his identity to officers and

he gave Officer Falcicchio an alias. Defendant also stated he did not have

identification. According to Officer Falcicchio, defendant was "inconsistent

with his identifiers, you know, date of birth, address, so on." Because defendant

initially refused to identify himself, he was asked to place his fingers on a

fingerprint scanner. Only then did defendant disclose his identity. Defendant

also admitted he had been deported previously and did not have a passport.


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                                        2
Accordingly, defendant was arrested. Since he was wearing only underwear at

the time of his arrest, Officer Falcicchio retrieved a pair of jeans near the

defendant so he could put them on. Defendant was the only adult, other than his

son, in the area where the jeans were located.

      Before handing the pants to defendant, the officer patted them down and

felt items inside the pants pockets. The officer removed those items before

handing the jeans to defendant. In one of defendant's pants pockets, Officer

Falcicchio found a Florida driver's license with defendant's picture on it, but it

reflected another person's name. In another pocket, the officer found a Jamaican

ID card, with defendant's name on it. Underneath defendant's jeans, the officer

also discovered a stack of paperwork, with a list of names and personal

identifiers. The officer confirmed the paperwork "had people's names and dates

of birth and social security numbers and addresses, so it appeared to be

something."

      Officer Falcicchio, defendant and his son testified at the suppression

hearing. Judge Blaney credited the testimony of Officer Falcicchio over that of

defendant and his son, Eric. The judge characterized defendant's testimony as

"misleading" and "contradictory," finding defendant "vacillated from one set of




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                                        3
facts to another" and that he "contradicted his son's testimony with respect to

how this incident actually went down."

      Based on the "totality of the circumstances," Judge Blaney found that prior

to defendant's arrest, law enforcement became aware there was "some kind of

warrant from immigration for the defendant."       Subsequently, officers were

lawfully in defendant's residence to execute a warrant for his son. Further, the

judge concluded that once defendant lied to officers about his identity, he was

separately subject to arrest for falsely identifying himself. Additionally, t he

judge determined the search of defendant's jeans incident to his arrest was

proper. Lastly, the judge found the paperwork with personal identifiers was

inadvertently observed in plain view after officers became aware defendant was

not legally in this country. Based on these findings, Judge Blaney denied

defendant's motion to suppress the false government document and the

paperwork found during the incident.

      On appeal, defendant raises the following arguments:

                               POINT I

            THE OFFICERS' PRESENCE IN THE HOME
            BEYOND THAT WHICH WAS NECESSARY TO
            EXECUTE AN UNRELATED ARREST WARRANT,
            AS WELL AS THE WARRANTLESS SEARCHES
            THAT FOLLOWED, NECESSITATE SUPPRESSION
            OF THE EVIDENCE.

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                                         4
            A.     The Officers' Prolonged Presence in the Home
                   Constituted an Illegal Detention, From Which
                   They Obtained Tainted Evidence.

            B      The Officer's Mere Assertion that an Out-of-
                   Court Declarant Told Him that an Immigration
                   Detainer Was issued Deprived [Defendant] of
                   His Fundamental Right to Due Process of Law.

            C.     The Arrest Was Predicated Upon Evidence
                   Retrieved During a Warrantless Search of Pants
                   Pockets and Use of a Mobile Fingerprint
                   Scanning Device. As Such, the Court's Finding
                   that the Search Was Incident to a Lawful Arrest
                   Was Inherently Flawed.

            D.     The Court Erred in Finding that the Plain View
                   Exception Was Applicable, Because the Officers
                   Were Not Lawfully in the Viewing Area, and
                   There Is No Basis to Conclude that the Nature of
                   the Incriminating Evidence was Immediately
                   Apparent to the Officer.

      After carefully reviewing the record, we are satisfied these arguments lack

merit. Appellate courts reviewing a grant or denial of a motion to suppress must

defer to a trial court's factual findings so long as those findings are supported by

sufficient evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014);

State v. Elders, 192 N.J. 224, 243 (2007). We defer to those findings of fact

because they "are substantially influenced by [an] opportunity to hear and see

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

enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). An appellate court should

                                                                            A-2848-18T2
                                         5
disregard those findings only when a trial court's findings of fact are clearly

mistaken and "the interests of justice demand intervention and correction." Id.

at 162. However, we review a trial court's legal conclusions de novo. State v.

Gandhi, 201 N.J. 161, 176 (2010).

      "Both the United States Constitution and the New Jersey Constitution

guarantee an individual's right to be secure against unreasonable searches or

seizures." State v. Minitee, 210 N.J. 307, 318 (2012). Searches and seizures

conducted without a warrant, "particularly in a home, are presumptively

unreasonable." State v. Edmonds, 211 N.J. 117, 129 (2012) (quoting State v.

Bolte, 115 N.J. 579, 585 (1989)). The State has the burden of proving by a

preponderance of the evidence that such searches and seizures are "justified by

one of the 'well-delineated exceptions' to the warrant requirement." State v.

Shaw, 213 N.J. 398, 409 (2012) (quoting State v. Frankel, 179 N.J. 586, 598

(2004)). Two such exceptions to the warrant requirement include the plain view

doctrine and the search-incident-to-arrest doctrine.

      To lawfully seize an item in plain view, a three-prong test must be

satisfied: (1) the officer must have been lawfully in the viewing area; (2) the




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                                        6
officer must have discovered the evidence "inadvertently;" 1 and (3) the

criminality of the item must have been immediately apparent to the officer. State

v. Earls, 214 N.J. 564, 592 (2013) (quoting State v. Mann, 203 N.J. 328, 341

(2010)). Additionally, pursuant to the search-incident-to-arrest doctrine, when

an officer effectuates an arrest, he or she may search the "arrestee's person and

the area 'within his immediate control'—construing that phrase to mean the area

within which he might gain possession of a weapon or destructible evidence."

Chimel v. California, 395 U.S. 752, 763 (1969); see also State v. Eckel, 185 N.J.

523, 535 (2006) ("New Jersey's traditional approach to [a] search incident to

arrest parallels Chimel.")

      The police did not have an arrest warrant for defendant when they

executed his son's arrest warrant, but, as Judge Blaney noted, law enforcement

knew of an outstanding federal immigration detainer for defendant based on his

unlawful re-entry into the United States. As defendant falsely identified himself

before admitting his real name and conceded he returned to the United States

illegally, we are satisfied Judge Blaney correctly found defendant was properly


1
  In State v. Gonzales, 227 N.J. 77 (2016), our Supreme Court embraced the
United States Supreme Court's decision in Horton v. California, 496 U.S. 128
(1990), and eliminated the "inadvertence" prong. Gonzales, 227 N.J. at 82.
However, Gonzales applies only prospectively. Ibid. In this instance, the search
was conducted before Gonzales was decided on November 15, 2016.
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                                       7
arrested. Likewise, we perceive no basis to disturb Judge Blaney's finding that

defendant's clothing was lawfully searched incident to his arrest and the

paperwork under defendant's jeans was properly seized after it was discovered

in plain view. The record amply supports these findings.

      Given our standard of review, we have no basis to second-guess Judge

Blaney's denial of defendant's motion to suppress.

      Affirmed.




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