January 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEITH HINES, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK HINES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 09-10-0404.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2011 -
Before Judges Fuentes, Graves and Koblitz.
In these consolidated matters, defendants Mark Hines and his brother, Keith Hines,*fn1 appeal from an order dated August 6, 2010, denying their motions to suppress evidence. After the order was entered, Mark pled guilty to first-degree maintaining or operating a facility for manufacturing marijuana, N.J.S.A. 2C:35-4 (count one), and second-degree conspiracy to manufacture marijuana, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(10)(b) (count six).
The court sentenced Mark to a ten-year prison term with five years of parole ineligibility on count one, and it imposed a concurrent five-year term on count six. Keith pled guilty to third-degree conspiracy to manufacture marijuana, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35- 5(b)(11), and was sentenced to a one-year period of probation, subject to a 270-day jail term. For the reasons that follow, we affirm.
At approximately 10:00 a.m. on May 15, 2009, while "working a warrant detail," State Troopers David Perschy and Kenneth Breiten drove in separate patrol cars to a home on Knowlton Road in Knowlton Township to serve Mark with a traffic warrant for his arrest. The home was owned by Keith, but he was not home at the time. As Perschy was knocking on the front door and announcing his presence, he observed a large barking dog and a white male, subsequently identified as Mark, through the window. Perschy directed Mark "to put the dog away." After the dog was secured, Mark opened the door and stepped onto the porch wearing only his boxer shorts. Perschy then confirmed his identify, advised him of the outstanding traffic warrant, and placed him under arrest.
When asked to describe what happened next, Perschy testified as follows:
I told him he was under arrest. I told him to turn around and put his hands behind his back. I was about to handcuff him. He asked me if he could get dressed. I said yes. And then I asked him if there were any weapons in the house.
Q. And why did you ask this question?
A. Every warrant I serve I ask if there [are] weapons in the house just for officer, for trooper safety.
Q. Does that include those occasions where you're not going into the house?
A. No, if I'm going to go into the house then I ask if there [are] weapons in the house.
Q. If Mr. Hines did not ask to get dressed would you have asked that question?
Q. But at this point when you asked that question you hadn't advised him of his Miranda rights, had you?
A. No, but he was detained. He was under arrest for the warrant.
Q. Did he answer your question concerning firearms in the house?
A. Yes, he did.
Q. What did he tell you?
A. He told me there was a .22 rifle in the house.
Q. And what did you do when he told you this?
A. I told him that I would have to accompany him into the house to get dressed.
Q. Even if there hadn't been a weapon that he advised you of, would you still have accompanied him into the house?
A. Yes, I would have because he was currently arrested. He was detained.
Q. When you told him you had to accompany him inside the house what did he say?
A. He said okay.
Q. Did you enter the house at that time?
A. We did.
As Perschy went through the doorway into the living room, he immediately detected "a strong odor of raw marijuana." He also observed the following items in plain view: (1) a brown bag, which appeared to contain "marijuana stems"; (2) "a bong- type smoking device," used to smoke marijuana; (3) a scale and zip-lock bags; (4) a "pipe smoking device"; (5) "a small amount of loose raw marijuana" and "glass-type mixing bowls" filled with a green leafy vegetation that he "suspected to be marijuana."
Perschy testified that he was "about to place [Mark] under arrest for narcotics" when a white female, later identified as Jamie Grefe, entered the room. At that point, Mark and Grefe were placed under arrest for possession and distribution of marijuana. After Mark was dressed, the two suspects were handcuffed, read their Miranda*fn2 rights, and placed in separate patrol vehicles. Perschy then secured the evidence that was in plain view, and Breiten contacted their supervisor, Detective Sergeant Thomas Leahy, to let him "know what was going on and to get the process [for a search warrant] started."
Leahy testified he instructed the troopers "to do a sweep of the residence . . . to make sure there [were] no other people that could have access to weapons or that dog." While conducting the sweep, the troopers found a room in the basement "with grow lights and marijuana plants." A subsequent search was performed pursuant to a search warrant issued by a Superior Court judge at 4:50 p.m. that same day.
Mark and his girlfriend, Jamie Grefe, also testified at the suppression hearing. According to Mark, he "yelled into Jamie" to get him some clothes because he wanted to get dressed on the porch. Additionally, Grefe testified she was bringing Mark the clothes when she saw Mark and the trooper "walking in the [front] door." Mark also denied telling Perschy it was "okay" for him to enter the house.
The trial court's findings and conclusions included the following:
The Court makes a factual finding that the two (2) troopers were credible and accepts as a finding of fact that Mark Hines asked Trooper Perschy if he could "put some clothes on," and then the trooper escorted him back into the house. The Court rejects the testimony of Mark Hines and Jamie Grefe and finds their testimony not credible when they said that Mark called out to Jamie to bring him clothes on the porch.
Under State v. Bruzzese [94 N.J. 210 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)] the officers could seize any CDS that was in plain view during their escort of Mark to the bedroom to obtain clothing. It is undisputed that Trooper Perschy asked Mark Hines whether there was a gun in the house before Mark was given his Miranda warnings. Unlike in [New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984)], which the State cites, the police had received no prior information that placed them in fear of Mark possessing a weapon. They had arrived on the scene to serve a traffic warrant. There was no immediate perception of a risk to their safety. Trooper Perschy, however, phrased his question in conformance with the Supreme Court's ruling in [State v. O'Neal, 190 N.J. 601 (2007)] directly asking whether there were any weapons that could harm the officers. Mark answered that there was a weapon in the house. At this time, the officers did not enter the house to seize the weapon. They entered to escort Mark to his room so he could obtain clothes under the protocol dictated in Bruzzese. The situation here fits the narrow exception to the search warrant requirement as stated in State v. Stephenson, [350 N.J. Super. 517 (App. Div. 2002)] as the police sought to preserve their safety. The matter at hand is also factually distinct from the situation in Stephenson, as the officers did not conduct a custodial interrogation with the intention of finding the location of the gun. They simply escorted Mark for their own safety.
The court also found that the troopers had the right to conduct a brief protective sweep of the house because they were "legitimately" concerned for their safety:
Upon entering the house, the Court finds that the officers were surprised by the appearance of Ms. Grefe. By this time, Trooper Perschy had already detected the presence of marijuana, and had a belief that criminal activity was being committed. Because the officers did not know if there were additional people in the house, and because they knew that there was at least one weapon in the house, at this point there was an exigent situation that required a protective sweep of the residence.
On appeal, defendants present the following arguments:
THE DENIAL OF THE MOTION TO SUPPRESS EVIDENCE WAS IMPROPER AS THE POLICE UNLAWFULLY ENTERED THE HOME WITHOUT CONSENT OR A SEARCH WARRANT.
DEFENDANTS' FOURTH AMENDMENT RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURE WERE VIOLATED BY THE TROOPER'S UNWARRANTED SEARCH OF THE HOME.
We reject these arguments and affirm the order denying defendants' suppression motions substantially for the reasons stated by Judge John J. Coyle, Jr., in his written decision on August 6, 2010. We add only the following comments. A reviewing court must uphold the factual findings and credibility determinations of the trial judge so long as those findings are supported by sufficient credible evidence in the record. State v. Yohnnson, 204 N.J. 43, 62 (2010); see also State v. Johnson, 42 N.J. 146, 161 (1964) (stating that appellate courts should defer to factual findings that are substantially influenced by the trial judge's "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy"). We will not disturb a trial judge's findings and conclusions unless they are so clearly mistaken and so plainly unwarranted "that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.
In the present matter, defendants assert that the troopers' entry into the house was unlawful and the protective sweep was invalid. However, the record amply supports Judge Coyle's findings that the entry was lawful because Mark consented and the troopers had the right to monitor his movements following his arrest; and there was sufficient justification for the protective sweep of the house. State v. Davila, 203 N.J. 97, 125-26 (2010). In addition, it is clear that any evidence observed during the protective sweep would have inevitably been discovered when the police conducted the warrant-authorized search later in the day. See State v. Holland, 176 N.J. 344, 360-61 (2003); State v. Sugar, 100 N.J. 214, 238-40 (1985). The order denying defendants' suppression motions is therefore affirmed.