STATE OF NEW JERSEY VS. HASSAN A. MUHAMMAD (18-06-0934 AND 18-06-0935, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3017-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN A. MUHAMMAD,

Defendant-Appellant.
________________________

Submitted June 7, 2021 – Decided July 15, 2021

Before Judges Gooden Brown and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 18-06-
0934 and 18-06-0935.

Joseph E. Krakora, Public Defender, attorney for
appellant (Molly O'Donnell Meng, Assistant Deputy
Public Defender, of counsel and on the brief).

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Following the denial of his motion to suppress physical evidence seized

from his home pursuant to a search warrant, defendant pled guilty to first- and

second-degree drugs and weapons related offenses. He was sentenced in

accordance with the plea agreement to an aggregate sixteen-year term of

imprisonment with a seven-year period of parole ineligibility.

Defendant now appeals from the conforming judgment of conviction

entered on March 14, 2019, raising the following points for our consideration:

POINT I

BECAUSE THE AFFIDAVIT IN SUPPORT OF THE
SEARCH WARRANT WAS NOT BASED ON
PROBABLE CAUSE TO BELIEVE THAT
CONTRABAND WOULD BE FOUND IN THE
HOME THAT WAS THE SUBJECT OF THE
WARRANT, THE SEARCH WAS
UNCONSTITUTIONAL, AND THE EVIDENCE
SEIZED MUST BE SUPPRESSED.

POINT II

THE UNREASONABLE EXECUTION OF THE
SEARCH WARRANT REQUIRES SUPPRESSION
OF THE CONTRABAND FOUND INSIDE THE
APARTMENT.

POINT III

THE TRIAL COURT ERRED IN REJECTING ALL
MITIGATING FACTORS DESPITE SUBSTANTIAL
MITIGATION EVIDENCE DEMONSTRATING
[DEFENDANT'S] STRUGGLE WITH ADDICTION

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 AND THE SIGNIFICANT ROLE HE SERVED AS
FATHER TO HIS THREE YOUNG CHILDREN,
REQUIRING RESENTENCING.

We have considered these arguments in light of the record and applicable legal

principles. We reject each point raised and affirm.

I.

On June 19, 2018, defendant was charged in Middlesex County Indictment

No. 18-06-0934 with first-degree maintaining a controlled dangerous substance

(CDS) production facility, N.J.S.A. 2C:35-4 (count one); second-degree

possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-

5(b)(2) (count two); second-degree possession of cocaine with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2) (count three); third-degree

possession of Oxycodone with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

2C:35-5(b)(13) (count four); third-degree possession of Xanax with intent to

distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(13) (count five); fourth-

degree possession with intent to distribute drug paraphernalia, N.J.S.A. 2C:36-

3 (count six); second-degree possession of a firearm, namely, a Hi-Point C9

handgun, while maintaining a CDS production facility and possessing CDS with

intent to distribute, N.J.S.A. 2C:39-4.1 (count seven); fourth-degree unlawful

receipt of handgun ammunition, N.J.S.A. 2C:58-3.3(b) (count eight); three

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counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)

(count nine, ten, and eleven); and third-degree financial facilitation of criminal

activity, N.J.S.A. 2C:21-25 (count twelve). In a separate single-count

indictment returned on the same date, Indictment No. 18-06-0935, defendant

was charged with second-degree certain persons not to have weapons, N.J.S.A.

2C:39-7(b)(1).

The charges stemmed from the seizure of contraband from defendant's

home during the execution of a search warrant. Defendant moved to suppress

the evidence, arguing that the search warrant was issued without probable cause

and executed in an unlawful manner by police failing to comply with the knock

and announce rule.

The affidavit submitted on February 9, 2018, in support of the search

warrant application was prepared by North Brunswick Township Police

Detective Errol McCalla, Jr., who was working with the Middlesex County

Prosecutor's Office Task Force. In the affidavit, after setting forth his

educational and experiential background in law enforcement, which included

four years of effecting and assisting in multiple drug related arrests, McCalla

recounted at length the details of an undercover investigation into drug sales by

defendant.

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 The investigation was initiated in January 2018 after McCalla and another

detective met with a confidential informant (CI) who stated that defendant was

"distributing quantities of [h]eroin within Middlesex County." The CI, who had

never "provided information to law enforcement in the past," claimed that he

was "aware of [defendant's] ongoing criminal activity through personal

observations and conversations with [defendant]." After the CI confirmed

defendant's identity from a photo, a query of a law enforcement database

revealed that defendant had a "criminal history" consisting of nine arrests and

six convictions, primarily drug related.

Based on this information, the detectives orchestrated four controlled drug

purchases by the CI from defendant. The first purchase occurred during the

week of January 8, 2018, after the CI called defendant and arranged for the

purchase of CDS at a specified location while detectives listened to the

conversation. Prior to departing for the pre-arranged meet location, "the CI was

searched for drugs, contraband, or money, with negative results," after which

the CI was provided with currency to make the purchase. The CI was then

surveilled during the entire travel time to the meet location, which was also

under surveillance.

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 At the meet location, law enforcement officers observed defendant arrive

in a gray Audi A6 bearing license plate J74CWB and "[make] contact with the

CI." After the meeting, the CI returned to the predetermined location while

defendant remained under surveillance until he traveled to an address listed as

his residence on his drivers' license. During "the post-purchase debrief," the CI

immediately turned over to law enforcement the CDS he had purchased from

defendant, which quantity was "consistent with the amount of [money that had

been] provided to the CI" and which a field test later confirmed was heroin. The

CI was again "searched for drugs, contraband or money with negative results."

During the week of January 15, 2018, a second controlled purchase was

completed repeating the same process followed during the first. During the

second transaction, defendant was observed exiting his residence and driving

directly to the pre-arranged meet location in a Silver Honda Odyssey bearing

license plate C73BZA. The third controlled purchase was completed during the

week of January 22, 2018, and repeated the same process followed during the

second. Defendant was again observed exiting his residence and driving directly

to the pre-arranged meet location. However, defendant drove in the Audi A6

used during the first transaction. Additionally, due to a change in police

protocol prohibiting field testing of any unknown white powdery substance, no

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field test was performed. However, McCalla "believe[d]" that the substance

purchased from defendant was CDS based on "appearance" and "packag[ing]."

The fourth and final controlled purchase was completed during the week of

January 29, 2018, and repeated the same process followed during the third.

Again, the evidence was not field tested, but McCalla believed it to be heroin.

The affidavit specified that McCalla sought a warrant to search defendant,

his residence, and his Audi A6 for evidence of narcotics trafficking, including

"[CDS], monies, paperwork, paraphernalia, packaging materials, adulterants,

firearms, . . . and communication devices." To support the request, McCalla

affirmed that in his professional experience, those who distribute CDS typically

conceal the narcotics "within their residence/property . . . to avoid detection by

law enforcement." In the affidavit, McCalla recounted numerous other

investigations where police found narcotics secreted in various locations

throughout the suspect's residence. The affidavit also specified that McCalla

sought to execute "said warrants during the hours of 4:00 [a.m.] and 11:59 [p.m.]

within ten . . . days from the issuance hereof by knocking and identifying the

officers as police officers and the purpose for being at the premises."

Based on McCalla's affidavit, the court issued the requested search

warrants, which were executed on Wednesday, February 14, 2018. During the

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testimonial hearing conducted to assess the lawfulness of the execution,

McCalla testified that at approximately 8:45 a.m. on February 14, he and

approximately five other officers approached defendant's residence. According

to McCalla, "[f]or safety reasons," the officers waited until after defendant's

wife left the residence with two children before approaching the premises.

McCalla testified he knocked on the door "several times" and announced

their presence by stating "police, police, search warrant." After knocking, they

"waited at least fifteen seconds if not longer." When no one answered the door,

they forcefully entered the premises "[u]tilizing a ram" while continuing to

announce their presence. According to McCalla, they made a forced entry into

the premises due to concerns that "someone could be disposing [of] or . . .

tampering with potential evidence." Once inside the residence, the officers went

up the stairs where McCalla observed defendant in the kitchen. The officers

proceeded to execute the warrants, as a result of which items were seized from

defendant's home which formed the evidential bases for the charges.

For the defense, defendant testified on his own behalf that he was in his

apartment on February 14 when he heard two loud bangs and observed the police

enter his home. According to defendant, although the officers claimed they

knocked and announced themselves, he did not hear either even though he was

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making tea in the kitchen, which was located "directly" at "the top of the stairs

. . . not . . . far from the [front] door." Defendant also testified that his son was

in the adjoining living room watching television.

Defendant's wife and her friend also testified on defendant's behalf.

Defendant's wife acknowledged that she had taken their two daughters to school

and was not home when police arrived. She left the couple's son at home with

defendant watching television. Both her testimony and the testimony of her

friend were limited to the amount of damage to the door caused by the forced

police entry. However, the damage to the door was not disputed and defendant's

wife acknowledged on cross-examination that the officers "told [her] that they

were going to call maintenance for [her] because they broke the door."

Following the hearing, the trial judge denied defendant's motion. In

rejecting defendant's challenge to the lawfulness of the execution of the

warrants, the judge relied on State v. Rodriguez, 399 N.J. Super. 192, 195 (App.

Div. 2008), holding that police did not "breach[] the 'knock and announce' rule

in executing a search warrant" when "they waited fifteen to twenty seconds after

announcing their presence before entering the premises." The judge credited

Detective McCalla's report and testimony that he knocked and did not receive

9 A-3017-18
an answer before breaching the door and determined that the testimony of the

defense witnesses was not inconsistent with that finding.

In that regard, the judge explained:

First of all, the wife and . . . their friend . . . were
not even present. Yes, they verified that the door was
broken and dented, but that's not disputed. It's not
disputed by any of the witnesses that ultimately they
gained entry by forcing their way in and . . . battering
the door with the . . . ram rod. The question is really
whether I believe the [p]olice [o]fficer knocked or not.

[Defendant] testified he did not hear a knock, but
I also know that we're talking about up a staircase with
a television on next to the staircase that would make it
possible that he might not have heard a knock if one
was made.

I have the credible testimony of . . . Detective
McCalla who's very experienced in this type of
situation having been on a task force and served for the
last six years . . . [who] did testify that there was a
knock, they waited fifteen seconds or longer, and he
was consistent throughout his testimony that that's what
he did.

I also found the position of . . . the [o]fficers to
be reasonable in the overall totality of the
circumstances . . . that they waited for the wife and two
daughters to leave before they executed this warrant
because they were trying to avoid excessive issues or
problems outside of the scope of what they were honing
in on in terms of this investigation.

So, I . . . do find the testimony credible. That the
[o]fficers did knock before they forced their way in and

10 A-3017-18
 the case law does allow a search if the [o]fficers waited
fifteen to twenty seconds before forcibly entering
which is what happened here.

Turning to the sufficiency of the warrants, the judge stated there was "no

evidence that . . . there was some kind of willful falsehood." The judge

acknowledged that the CI had never provided information to law enforcement

"in the past." However, according to the judge, the CI participated in four

controlled purchases that were detailed in the warrant. Further, the CI's

information was corroborated by his ability to contact defendant "via phone at

the number that was known to be the defendant's number," and by procuring

drugs from defendant that was "consistent with" the currency "given to him . . .

before [each] transaction." The judge noted that while the officers "may not

have actually [seen] drugs exchange hands," the CI and defendant were under

constant surveillance. The judge concluded that "based upon the totality of the

circumstances[,] . . . the investigation was sufficient to support probable cause

to grant the search warrant . . . and the execution of the warrant was done

properly."

Subsequently, defendant entered a negotiated guilty plea to first-degree

maintaining a CDS production facility (count one), second-degree possession of

CDS with intent to distribute (count two), and second-degree possession of a

11 A-3017-18
firearm while committing a CDS offense (count seven) under Indictment No.

18-06-0934, as well as second-degree certain persons not to have weapons under

Indictment No. 18-06-0935. Defendant was sentenced in accordance with the

plea agreement, 1 and this appeal followed.

II.

In Point I, defendant renews his challenge to the validity of the search

warrant. "[A] search executed pursuant to a warrant is presumed to be valid and

. . . a defendant challenging its validity has the burden to prove 'that there was

no probable cause supporting the issuance of the warrant or that the search was

otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388 (2004) (quoting

State v. Valencia, 93 N.J. 126, 133 (1983)). "Accordingly, courts 'accord

substantial deference to the discretionary determination resulting in the issuance

of the [search] warrant.'" State v. Keyes, 184 N.J. 541, 554 (2005) (alteration

in original) (quoting Jones, 179 N.J. at 388).

1
Defendant was sentenced to an eleven-year term of imprisonment with a three-
and-one-half-year parole disqualifier on count one, a concurrent seven-year term
on count two, and a consecutive five-year term with a three-and-one-half-year
parole disqualifier on count seven of Indictment No. 18-06-0934. He was
sentenced to a concurrent five-year term with a five-year parole disqualifier on
Indictment No. 18-06-0935.

12 A-3017-18
 "Probable cause for the issuance of a search warrant requires 'a fair

probability that contraband or evidence of a crime will be found in a particular

place.'" State v. Chippero, 201 N.J. 14, 28 (2009) (citation omitted). To

determine whether there was probable cause, we look only at the information

within "the four corners of the supporting affidavit." Id. at 26 (quoting

Schneider v. Simonini, 163 N.J. 336, 363 (2000)).

"Information related by informants may constitute a basis for probable

cause, provided that a substantial basis for crediting that information is

presented." Jones, 179 N.J. at 389 (citing State v. Sullivan, 169 N.J. 204, 212

(2001)). The issuing court must consider the totality of the circumstances in

determining whether an informant's tip establishes probable cause, including the

informant's "veracity and basis of knowledge." Ibid. (quoting State v.

Novembrino, 105 N.J. 95, 123 (1987)). "[R]elevant corroborating facts may

include a controlled drug buy performed on the basis of the tip, positive test

results of the drugs obtained, records confirming the informant's description of

the target location, the suspect's criminal history, and the experience of the

officer who submitted the supporting affidavit." Keyes, 184 N.J. at 556 (citing

Jones, 179 N.J. at 390-91). "[A] successful controlled [drug] buy 'typically will

13 A-3017-18
be persuasive evidence in establishing probable cause.'" Ibid. (quoting Jones,

179 N.J. at 392) (internal quotation marks omitted).

Here, we are satisfied that the affidavit provided ample probable cause for

the issuance of the warrant to search defendant's home. Indeed, four successful

controlled buys constitute compelling evidence to establish probable cause.

Further, despite the fact that the CI had never provided information to law

enforcement in the past, the police corroboration demonstrated that the CI was

sufficiently reliable. See Sullivan, 169 N.J. at 214-16 (holding that although the

CI had no history of providing reliable information to the police, two controlled

purchases of cocaine along with additional police corroboration, including

confirmation that the substance purchased by the CI was cocaine, sufficiently

demonstrated probable cause, and the inability of the police to observe the actual

transactions was not fatal).

Defendant argues that "[b]ecause police failed to show probable cause

connecting the home to drug activity, the search was unconstitutional, and the

evidence seized from the home must be suppressed." However, in addition to

Detective McCalla connecting the home to drug activity in his affidavit based

on his professional experience, on three separate occasions, defendant was

observed by police traveling directly to the meet location from his home to

14 A-3017-18
conduct the drug transactions with the CI. Thus, the totality of the circumstances

established probable cause that defendant harbored drugs in his residence. Our

holding is guided by the principle that warrant applications "should be deemed

legally sufficient so long as they contain[] factual assertions which would lead

a prudent [person] to believe that a crime [has] been committed and that

evidence … of the crime [is] at the place sought to be searched." Sullivan, 169

N.J. at 217 (alterations in original) (quoting State v. Laws, 50 N.J. 159, 173

(1967)).

In Point II, defendant argues that "the fifteen-second wait between

knocking and breaking down the door" was "patently unreasonable" because

"police had no information that anyone else was inside and had no reason to

believe that [defendant] was armed or violent." Thus, according to defendant,

"[w]ithout additional circumstances requiring quick entry," the warrant was

"unreasonably executed" in violation of the knock and announce rule.

"The knock-and-announce rule renders unlawful a forcible entry to arrest

or search 'where the officer failed first to state his authority and purpose for

demanding admission.'" State v. Robinson, 200 N.J. 1, 13-14 (2009) (quoting

Miller v. United States, 357 U.S. 301, 308 (1958)). "A necessary corollary to

the knock-and-announce rule is that when 'the police announce[] their presence

15 A-3017-18
and [are] greeted with silence . . . a reasonable time must elapse between the

announcement and the officers' forced entry.'" Id. at 16 (alteration in original)

(quoting State v. Johnson, 168 N.J. 608, 621 (2001)).

Generally, "[t]here are common factors to be applied in determining the

reasonableness of the delay between knocking and announcing and a forcible

entry," including "a suspect's violent criminal history," "an informant's tip that

weapons will be present," "the risks to officers' lives and safety," "the size or

layout of defendant's property," "whether persons other than defendant reside

there," "whether others involved in the crime are expected to be present," and

"the time of day." Id. at 17 (citations omitted). However, in drug cases, a

reasonable wait time is generally measured by the amount of time it would take

to dispose of drugs, rather than the time it would take a resident to reach the

door. Ibid.

In Robinson, our Supreme Court held that a delay of twenty to thirty

seconds between knock and announcement and forcible entry was reasonable

where the object of the warrant was drugs and there was a potential for the

destruction of evidence while entry was delayed. Id. at 17. In Rodriguez, we

concluded that in the totality of circumstances, a wait of fifteen to twenty

seconds after announcement was reasonable where "the objects of the search

16 A-3017-18
were drugs and other evidence related to illegal drug trafficking." 399 N.J.

Super. at 200-02.

Here, the testimony credited by the judge established that the police

knocked and announced their presence and waited "fifteen seconds or longer"

before forcibly entering the residence. The judge concluded that the wait time

was reasonable under the circumstances. We give deference to findings "which

are substantially influenced by [the motion judge's] opportunity to hear and see

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

enjoy." State v. Elders, 192 N.J. 224, 244 (2007). While we need not defer to

a judge's interpretation of the law, State v. Shaw, 213 N.J. 398, 411 (2012), a

trial judge's findings "should be disturbed only if they are so clearly mistaken

'that the interests of justice demand intervention and correction.'" Elders, 192

N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The record here overwhelmingly supports the judge's findings, and her

legal conclusion is unassailable. The wait time was reasonable, especially

considering that the object of the warrant was the seizure of drugs and evidence

related to illegal drug trafficking. Thus, the entry team did not violate the knock

and announce rule, and reasonably executed the search warrant.

17 A-3017-18
 In Point III, defendant argues "[he] should not have been sentenced above

the statutory minimum." He argues that "[d]espite the strong mitigating

evidence" of "his addiction, desire to seek treatment, and substantial family

obligations [as a father of three young children], the trial judge found no

mitigating factors." Defendant continues that the judge "erred in not finding

mitigating factors four and eleven."

We review sentences "in accordance with a deferential standard," State v.

Fuentes, 217 N.J. 57, 70 (2014), and recognize "that appellate courts should not

'substitute their judgment for those of our sentencing courts.'" State v. Cuff, 239

N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus, we

will

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."

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

"While the sentence imposed must be a lawful one, the court's decision to

impose a sentence in accordance with the plea agreement should be given great

respect, since a 'presumption of reasonableness . . . attaches to criminal

18 A-3017-18
sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super.

61, 71 (App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)).

Here, the judge found aggravating factors three, six, and nine, which

defendant does not dispute. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that . . .

defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent

of . . . defendant's prior criminal record and the seriousness of the offenses of

which he has been convicted"); and N.J.S.A. 2C:44-1(a)(9) ("[t]he need for

deterring . . . defendant and others from violating the law"). The judge also

determined there were no mitigating factors but sentenced defendant in

accordance with the plea agreement despite the overwhelming aggravating

factors.

Defendant asserts the judge erred in not considering his drug addiction

and childcare responsibilities to support mitigating factors four and eleven. See

N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or

justify the defendant's conduct, though failing to establish a defense"); N.J.S.A.

2C:44-1(b)(11) ("[t]he imprisonment of the defendant would entail excessive

hardship to the defendant or the defendant's dependents").

However, the judge considered defendant's "substance abuse issue," and

his indication that "he last used the day before th[e] incident" but did not find

19 A-3017-18
that it rose to the level of a statutory mitigating factor. See State v. Ghertler,

114 N.J. 383, 390 (1989) (rejecting "defendant's contention that his drug

dependency should be considered a mitigating factor"). The judge also rejected

defendant's reliance on mitigating factor eleven, noting that while "it is always

a hardship when a parent goes to jail," in "the[se] circumstances," the children

"have their mother who is able to care for [them] along with the extended

family."

Applying our deferential standard of review, we are satisfied that the

judge's findings are amply supported by the record, that the sentence comports

with the guidelines enunciated in the Code of Criminal Justice, and that the

aggregate sentence does not reflect an abuse of discretion or shock our judicial

conscience.

Affirmed.

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