STATE OF NEW JERSEY VS. SAQUAN J. WEAVER (18-09-1504, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4582-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAQUAN J. WEAVER,

Defendant-Appellant.
_______________________

Submitted February 8, 2021 – Decided April 6, 2021

Before Judges Messano, Suter and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 18-09-1504.

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

Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Shiraz Deen, Assistant
Prosecutor, on the brief).

PER CURIAM
 Following an evidentiary hearing and denial of his motion to suppress,

defendant Saquan J. Weaver pled guilty to second-degree eluding, N.J.S.A.

2C:29-2(b), and second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b)(1), and one count in each of two other indictments. In accordance

with the plea bargain, the judge imposed concurrent sentences aggregating in a

term of eight-years imprisonment with a forty-two-month period of parole

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

Defendant appeals and raises the following points for our consideration:

POINT I

THE WARRANTLESS ENTRY INTO THE HOME
AND THE SUBSEQUENT SEARCH UNDER THE
MATTRESS FAILED TO SATISFY ANY
EXCEPTIONS TO THE WARRANT
REQUIREMENT, THEREBY VIOLATING THE
FEDERAL AND STATE PROTECTIONS AGAINST
UNREASONABLE SEARCHES AND SEIZURES.1

POINT II

THE EIGHT-YEAR PRISON TERM WAS
MANIFESTLY EXCESSIVE.

We affirm.

1
We eliminated the sub-points in defendant's brief, but we will discuss each
argument raised in our opinion.
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 I.

Barnegat Township Police Detective Gregory Martinez was assigned to

the Narcotics Unit and had participated in "[h]undreds" of narcotic-related

investigations. At approximately 3:20 p.m. on July 13, 2018, he was conducting

surveillance at the Barnegat Wawa, "a high narcotics traffic area." Martinez saw

defendant, who he immediately recognized from prior police investigations,

driving a white Tucson with Ontario, Canada, license plates; a female passenger,

who Martinez also recognized from prior police contact, was in the car.

Martinez knew at least one prior investigation involved defendant's possession

of a firearm, and he also knew that defendant's driver's license was suspended.

Additionally, a confidential informant had told Martinez "very recent[ly]" that

he saw defendant with a weapon. Martinez later testified that defendant was a

victim in a shooting in May or June, and the informant described a particular

weapon he saw in defendant's possession about the same time.

Martinez was in an unmarked car without emergency lights, so, when

defendant drove away, the detective called in other units to effectuate a motor

vehicle stop. Martinez exited his car as two uniformed officers stopped the

Tucson on a dead-end street. When asked for his credentials, defendant drove

forward, executed a K-turn, and came back toward the officers at thirty-to-thirty-

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five miles per hour. Martinez testified that as the officers scrambled for safety,

the car passed within a few feet of them. The officers returned to their vehicles

but were unable to pursue defendant who was already out of sight. They

broadcast a description of defendant and the car.

Within "a couple [of] minutes," another officer located the Tucson parked

in front of a home on Mast Drive. Martinez testified the address was "a known

location" for defendant, and home of a woman who was pregnant with

defendant's child. The passenger Martinez saw earlier driving with defendant

was standing next to the Tucson, speaking with other officers. She denied

knowing where defendant was and claimed she did not know why he "ran."

Martinez said a "concerned citizen" told police that defendant exited the

Tucson and ran into the Mast Drive house. As police approached the front door,

the owner came outside. She said defendant was not inside but told Martinez he

could go in and look. Martinez did not review a "standard consent . . . form"

with her prior to entering the home. He estimated that between five to eight

minutes had passed since defendant fled from the motor vehicle stop.

Together with Sergeant Andrew Parsley and two uniformed officers,

police cleared each room. Martinez and Parsley entered a bedroom and saw "a

large bulge underneath the mattress. It seemed like someone was hiding

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underneath there." Martinez lifted the mattress and "immediately recognized [a]

silver handgun as well as a large blue case . . . underneath the bed." In response

to the judge's questioning, Martinez said the bed was pushed into the corner of

the room, against the wall, and "[i]t was like somebody was trying to hide in

between the wall and underneath the bed." The blue case was a plastic gun case.

Martinez did not seize this evidence at the time, but rather continued to

another bedroom and adjoining bathroom. A young woman was using the

bathroom at the time, so police closed the door and waited outside until she was

finished and left. Police found defendant hiding behind a shower curtain in the

bathroom. After arresting defendant and securing the Mast Drive home, police

applied for and obtained a search warrant for the premises. They seized a total

of three handguns, including the one seen earlier under the mattress, the gun

case and ammunition, including hollow point bullets.

Defendant called Sergeant Parsley as a witness. He was uninvolved in,

but aware of, the events prior to police arriving at the Mast Drive house. Parsley,

who had ten years' experience as the Ocean County SWAT commander,

formulated a plan for entry with the seven or eight police officers he said were

at the scene.

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 Parsley confirmed that the owner gave police permission to enter the

house, but he also said that if she had denied police access, "we would still have

made entry" because of the exigency of the circumstances. Parsley explained

that police had reason to believe defendant was inside the house, and considering

"the totality of everything," defendant posed a threat to the community and

police who were pursuing him. Parsley corroborated much of Martinez's

testimony regarding events after police entered the home. He described the lump

under the mattress and said the mattress was "displaced enough that . . . [he]

thought it could be a person." Parsley later said, in response to a question from

the judge, that the lump could have been caused by a person's legs under the

mattress.

After considering the parties' briefs and oral argument, the judge issued a

short, written statement of reasons supporting the order denying defendant's

motion to suppress. He found both witnesses credible and initially rejected

defendant's argument that the passage of time between the motor vehicle stop

and arrival of police at the Mast Drive home eliminated the exigency of the

situation. He also found that the homeowner consented to the search, writing:

"Th[e] consent and the exigent circumstances afforded law enforcement the

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lawful authority to search the residence for [d]efendant and any possible

weapons that could be utilized to harm law enforcement or any other occupants."

The judge also addressed defendant's contention that the officers acted

unreasonably in lifting the mattress because it was "highly improbable that the

detectives could have reasonably thought that the 'bump in the mattress' was

[d]efendant, a six[-]foot[,] two[-]hundred pound male." The judge noted the

"superficial appeal" of the argument but credited Parsley's testimony that the

bump could have been created by someone's legs, finding "that explanation

sufficiently credible and . . . law enforcement's conduct was reasonable when

viewed in the totality of the circumstances. . . . [L]ifting the mattress to

investigate the unknown 'bump' was consistent with insuring officer safety."

II.

We address seriatim the various arguments defendant makes challenging

the warrantless entry and search of the Mast Drive home. "An appellate court

reviewing a motion to suppress evidence in a criminal case must uphold the

factual findings underlying the trial court's decision, provided that those

findings are 'supported by sufficient credible evidence in the record.'" State v.

Boone, 232 N.J. 417, 425–26 (2017) (quoting State v. Scriven, 226 N.J. 20, 40

(2016)). "[A] trial court's findings should be disturbed only if they are so clearly

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mistaken 'that the interests of justice demand intervention and correction.'" State

v. A.M., 237 N.J. 384, 395–96 (2019) (quoting State v. Elders, 192 N.J. 224,

244 (2007)). However, we review the motion judge's legal determinations de

novo. State v. Hagans, 233 N.J. 30, 38 (2018) (citing State v. Gamble, 218 N.J.

412, 425 (2014)).

Defendant first contends the officers failed to obtain valid consent to enter

the house from its owner because she "was not told she had a right to re fuse

consent and the presence of a large number [of] police officers was inherently

coercive." We disagree.

"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. Williams, 461 N.J. Super. 80, 94 (App. Div. 2019) (quoting

State v. Minitee, 210 N.J. 307, 318 (2012), cert. denied, 241 N.J. 92 (2020)).

"[W]e 'accord the highest degree of protection to privacy interests within the

home.'" State v. Bryant, 227 N.J. 60, 69 (2016) (quoting State v. Johnson, 193

N.J. 528, 532 (2008)).

Warrantless searches are "presumptively unreasonable," and the State

bears the burden of demonstrating the search fell within one of the exceptions

to the warrant requirement. Id. at 69–70 (quoting Johnson, 193 N.J. at 552).

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Consent to search is a one such "long-recognized" exception. State v. Coles,

218 N.J. 322, 337 (2014).

We recently considered the same argument defendant raises now in

Williams. There, police were summoned to assist in a custody dispute and were

advised by the caller, who had a court order for custody of her niece, that the

child was likely in a nearby apartment with her mother and two uncles, both

suspects in a homicide investigation in another municipality. 461 N.J. Super. at

88. Police knocked on the door of the apartment and heard movement and

people talking inside before someone finally answered. Ibid. The defendant

eventually came to the door, and police advised they were there "for a custody

issue" and asked if they could enter. Id. at 89. The defendant agreed and let

police in the apartment. Ibid. Once inside, police advised the defendant they

believed two fugitives might be in the apartment and asked if they "could

conduct a 'protective sweep'"; she "responded, '[s]ure, go ahead.'" Ibid.

(alteration in original). The defendant ultimately moved to suppress evidence

police seized during their "sweep," arguing "'[p]olice unlawfully entered the

apartment without informing [defendant] that she had the right to refuse their

entry or the sweep;' and 'unlawfully conducted a protective sweep without any

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reasonable, articulable suspicion that the apartment harbored an individual

posing a danger[.]'" Id. at 93 (alterations in original).

After surveying prior decisions from our court, and those of other

jurisdictions, we concluded "there was no requirement that defendant be advised

of her right to refuse entry to the police." Id. at 101. The officer's

"decision to knock, request permission to enter, and thereafter enter the

apartment for further investigation was entirely reasonable and lawful." Ibid.

In this case, we agree with the analysis in Williams and reject defendant's

argument that the consent Martinez obtained from the owner of the Mast Drive

property was invalid because the detective failed to advise the homeowner she

could withhold consent.

Without mentioning our decision in Williams, defendant presents a more

nuanced alternative, namely, that even if "the State was not required to establish

the officers expressly advised [the homeowner] of her right to refuse consent,

. . . the burden remained on the State to demonstrate she knew she had the right

to refuse consent." See, e.g., State v. Johnson, 68 N.J. 349, 354 (1975) (holding

"in a non-custodial situation," police need not advise the person of his right to

refuse to consent to the search, but "if the State seeks to rely on consent as the

basis for a search, it has the burden of demonstrating knowledge on the part of

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the person involved that he had a choice in the matter"). He also contends that

any consent to enter the Mast Drive home was coerced because of the number

of officers present.

However, in Williams, we distinguished Johnson, recognizing the

distinction between asking permission to enter the home to continue an

investigation, as Martinez did here, and requesting specific consent to conduct

a search of the premises. 461 N.J. Super. at 98 (citing State v. Padilla, 321 N.J.

Super. 96, 108 (App. Div. 1999), aff'd o.b., 163 N.J. 3 (2000)); see also State v.

Domicz, 188 N.J. 285, 306 (2006) (rejecting the defendant's argument that his

invitation to police to enter his home was compelled and his consent invalid,

because "the person who, in the familiar surroundings of his home, can send the

police away without fear of immediate repercussions" (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 247 (1973))).

In this case, the entry of police into the Mast Drive home was not a

"search" and did not require the State to prove anything more than it did, namely,

that the homeowner consented to the entry. 2 The issue is whether police had

2
Defendant also asserts in a subpoint of his brief on the issue of consent that
"the presence of a large number of police officers was inherently coercive."
There is no further mention of the issue. "An issue not briefed on appeal is
deemed waived." Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div.

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authority to conduct a protective sweep of the home once inside. As we

explained in Williams, this requires a separate analysis not premised on the

consent exception to the warrant requirement.

"[A] 'protective sweep' is a quick and limited search of premises, incident

to an arrest[,] and conducted to protect the safety of police officers or others. It

is narrowly confined to a cursory visual inspection of those places in which a

person might be hiding." State v. Davila, 203 N.J. 97, 113 (2010) (quoting

Maryland v. Buie, 494 U.S. 325, 327 (1990)). Our Supreme Court has

limited the protective sweep of a home to settings in
which "(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."

[State v. Robinson, 228 N.J. 529, 545 (2017) (quoting
Davila, 203 N.J. at 102).]

Even when justified, the sweep must be "conducted quickly[] and . . . is

restricted to places or areas where the person posing a danger could hide."

Davila, 203 N.J. at 102.

2011) (citing Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App.
Div. 2008)). We also note that "absent from the record are any of the factors"
demonstrating coercion. Williams, 461 N.J. Super. at 104 (citing State v. King,
44 N.J. 346, 352 (1965)).
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 Defendant contends there were no exigent circumstances justifying the

officers' entry into the Mast Drive home, but this assertion is premised on a lack

of consent to enter, i.e., that police were not lawfully in the house. Indeed, the

cases cited by defendant only address those circumstances involving so-called

"hot pursuit" of a suspect into a home. Here, as in Williams, police were

"lawfully within private premises for a legitimate purpose," 461 N.J. Super. at

102, namely investigating the whereabouts a suspect who minutes earlier eluded

and endangered police while driving without a valid license, was known to

recently possess firearms, and likely just entered the Mast Drive house, where

others might be present.

To satisfy the second standard that justifies a protective sweep, the State

must demonstrate the officers, with their particularized knowledge and training

and based on the totality of these circumstances, possessed "a reasonable

articulable suspicion that the area to be swept harbor[ed] an individual posing a

danger." Davila, 203 N.J. at 102. "'That determination is fact-sensitive and

requires consideration of whether the totality of the circumstances provided the

officer with an articulable and particularized suspicion' warranting the intrusion

'within the context of the officer's relative experience and knowledge.'"

Williams, 461 N.J. Super. at 102 (quoting State v. Gamble, 218 N.J. 412, 432

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(2014)). The motion judge found that the totality of circumstances justified the

officers conducting a protective sweep of the house, and we agree.

Lastly, defendant argues that because there was no contraband in "plain

view," police "lacked lawful authority to lift the mattress to determine the cause

of the lump." Defendant contends that even if police lawfully entered the Mast

Drive house to conduct a search for him, they expanded the scope of the

permissible search by lifting the mattress, because a reasonable person could not

conclude the "lump" was a person in hiding.

Of course, our acceptance of this argument would require us to reject the

motion judge's specific finding that Parsley's testimony — he believed the lump

could have been caused by the legs of a person — was credible. We will not do

so, because not only did the judge have the opportunity to observe both officers'

demeanor, Gamble, 218 N.J. at 424–25, but he also posed a plethora of questions

to the officers about the size of the room, the location of the bed and mattress

with respect to adjoining walls, the position of the mattress on the bed, and the

size and shape of the "lump." We owe deference to the judge's legal conclusion

based on this testimony, specifically that the officers formed an objectively

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reasonable belief that the lump they observed under the mattress could be caused

by a suspect's legs.3

Moreover, given the totality of the circumstances faced by the officers, it

was entirely reasonable for them to lift the mattress to ascertain whether a

weapon was stowed beneath it that might be accessible to defendant or others in

the house. "[W]hen the police act reasonably in the face of genuine exigency,

3
The State did not argue, and the motion judge did not consider, whether lifting
the mattress to see what caused the lump was permissible pursuant to the plain
view exception to the warrant requirement. Under that doctrine, police may
seize an incriminating item or contraband if they are lawfully in the viewing
area and the item is immediately apparent as contraband or evidence of a crime.
Gonzales, 227 N.J. at 101. Here, as already noted, the officers were lawfully in
the bedroom when they observed the mattress, so, for the plain view exception
to apply, the critical inquiry would be whether it was objectively reasonable for
the officers to associate the "lump," not only with defendant's body, but also
with other criminal activity. Id. at 104.

In State v. Johnson, the Court considered whether the seizure of drugs
from a hole in the front porch of a house was permissible under the plain view
exception to the warrant requirement. 171 N.J. 192, 200–01(2002). The drugs
were contained in a "'light-colored' object," ultimately found to be a clear plastic
bag containing smaller bags of crack cocaine, but not immediately recognized
by the officer as contraband. Id. at 213–14. The Court held that based on the
totality of circumstances known to the officer and his experience, he "had
probable cause to associate the 'light-colored' object with criminal activity." Id.
at 215.

Because the State still has not asserted that the plain view exception
justified the officers' actions in this case, we choose not to specifically address
its application to these facts.

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their warrantless conduct is sustainable as part of the balancing of interests that

constitutes the bulk of our search-and-seizure jurisprudence." State v. Deluca,

168 N.J. 626, 634 (2001). See also State v. Gonzales, 227 N.J. 77, 104 (2016)

("An objectively reasonable search or seizure is constitutional despite an

officer's questionable motives, and an objectively unreasonable search or seizure

cannot be saved despite an officer's unimpeachable motives.").

We affirm the denial of defendant's motion to suppress.

III.

In accordance with the plea agreement, defendant was sentenced to eight

years' imprisonment with a mandatory forty-two-month period of parole

ineligibility. The State dismissed the balance of this indictment, and the

balances of two other indictments, in each of which defendant entered guilty

pleas to one count. The State recommended and the judge imposed concurrent

sentences on all convictions. Defendant argues the sentence was excessive,

because the judge mentioned defendant's tattoo — "married to the streets" — in

finding aggravating factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3) (the

likelihood of re-offense); (a)(6) (defendant's prior criminal record); and (a)(9)

(the need to deter defendant and others). Defendant argues that the judge erred

by according only minimal weight to mitigating factor eleven. See N.J.S.A.

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2C:44-1(b)(11) (defendant's imprisonment would entail excessive hardship to

him or his dependents).

"Appellate review of the length of a sentence is limited." State v. Miller,

205 N.J. 109, 127 (2011). As the Court has said:

The appellate court must affirm the sentence unless (1)
the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364–65
(1984)).]

The judge noted defendant had thirteen prior juvenile adjudications and

two prior criminal convictions. The judge viewed the police mobile video

recorder of the stop of defendant's vehicle in this case, and described how

defendant drove toward the officers, causing them to scatter, and then drove onto

the sidewalk and a lawn for a period of time. The judge's fleeting remark

regarding defendant's tattoo was an afterthought and had little to do with the

finding of aggravating sentencing factors otherwise supported fully by the

record. Defendant's excessive sentence argument requires no further discussion.

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

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Affirmed.

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