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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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] ...