STATE OF NEW JERSEY VS. KENNETH C. FRANCIS (17-11-0199, OCEAN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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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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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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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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
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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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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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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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