State v. Rodriguez, 110921 NECA, A-21-159

CourtCourt of Appeals of Nebraska
JudgePirtle, Chief Judge, and Moore and Welch, Judges.
Writing for the CourtMoore, Judge.
PartiesState of Nebraska, appellee, v. Daniel J. Rodriguez, appellant.
Docket NumberA-21-159

State of Nebraska, appellee,

v.

Daniel J. Rodriguez, appellant.

No. A-21-159

Court of Appeals of Nebraska

November 9, 2021

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Buffalo County: John H. Marsh, Judge. Affirmed.

Brandon J. Dugan, Deputy Buffalo County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

Daniel J. Rodriguez was convicted of possession of a controlled substance (cocaine) with intent to distribute. The district court for Buffalo County found that Rodriguez was a habitual criminal and sentenced him to 10 to 15 years' imprisonment. Rodriguez appeals both his conviction and his sentence, asserting that the district court erred in denying his motions to suppress evidence allegedly obtained in violation of his constitutional rights during his encounter with law enforcement and that the sentence imposed was excessive. Finding no error, we affirm.

STATEMENT OF FACTS

Incident

On the evening of November 8, 2019, Sergeant Jared Small with the Kearney Police Department observed a vehicle traveling about 46 miles per hour in a 35-mile-per-hour zone. After observing the speeding, Small then saw the driver of the vehicle brake "pretty aggressively, "

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presumably because the driver had seen Small's patrol car. Small turned on his headlights and began to pursue the vehicle. The driver of the vehicle then made an abrupt right turn and accelerated away from Small. When Small caught up to the vehicle he activated his spotlight and observed furtive movement by the driver towards the center console of the vehicle. The driver of the vehicle then pulled to the side of the road.

When Small made contact with the driver, Small recognized him as Rodriguez. Small was familiar with Rodriguez from prior law enforcement contacts, including a traffic stop on August 25, 2018. Small had arrived at the 2018 traffic stop after the vehicle Rodriguez was driving had been pulled over and Small assisted in the search of the vehicle. During the 2018 stop, law enforcement found several grams of cocaine in the center console of the vehicle and Rodriguez was arrested for possession of a controlled substance. Small was also familiar with Rodriguez' criminal record and knew that he was a convicted felon.

Small instructed Rodriguez to get out of the vehicle and asked Rodriguez if his license was still suspended. Rodriguez replied, "Yeah." Small then handcuffed Rodriguez, patted him down, and put him in the back of Small's patrol car. Small testified that he arrested Rodriguez immediately for driving with a suspended license. Small called Kearney Police Department dispatch to check the status of Rodriguez' license and the registration of the vehicle. Small then asked Rodriguez who owned the vehicle, and Rodriguez answered that it belonged to his friend, Jose Perez. Minutes later, dispatch confirmed that Rodriguez' license was suspended and that the vehicle was registered to Perez. At no point did Small notify Rodriguez of his Miranda rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

After arresting Rodriguez, Small searched the vehicle around the driver's seat and center console area. Inside the center console, Small found a plastic bag with a measuring cup inside. The measuring cup had a white powdery residue that Small suspected was a controlled substance, specifically, cocaine. Small continued to search the center console and found a folding knife; an eyeglasses case with several individually packed bags inside containing a white powdery substance; a black measuring spoon with a white powdery residue on it; and a digital scale with a white powdery residue on it. Based on Small's belief that the white powdery residue and substance was cocaine, he conducted a field test which yielded a presumptive positive for cocaine. Small submitted the individually packed bags from the eyeglasses case to the Nebraska State Patrol Crime Lab for testing and measurement.

Small then transported Rodriguez to the Buffalo County jail. Once there, Small contacted Perez to inform him that his vehicle had been left at the scene and that Rodriguez had the keys at the jail. Perez came to the jail later that night to retrieve the keys, which Rodriguez released to him. When asked by Small how Rodriguez gained possession of the vehicle, Perez explained that Rodriguez had asked to borrow the vehicle that night and Perez told him not to take it; but, Rodriguez still took the vehicle. However, based on a followup phone call with Perez a week later, Small concluded that Perez had in fact given Rodriguez permission to use the vehicle.

Charges and Pretrial Proceedings

The State charged Rodriguez by information with (1) possession of a controlled substance with intent to distribute: cocaine (not less than 10 grams but not more than 28 grams) under § 28-416(7)(c), a Class ID felony; (2) possession of a deadly weapon by a prohibited person under

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Neb. Rev. Stat. § 28-1206(3)(a) (Cum. Supp. 2020), a Class III felony; (3) and driving under suspension or while eligible for reinstatement under Neb. Rev. Stat. § 60-4, 108(2) (Cum. Supp. 2020), a Class III misdemeanor. The State also alleged that Rodriguez was a habitual criminal. Prior to trial, Rodriguez filed motions to suppress the drug evidence recovered from the vehicle and his statements to Small during the traffic stop and subsequent arrest. In his motions, Rodriguez alleged that the warrantless search of the vehicle was unconstitutional and that his challenged statements were not voluntarily made and were obtained in violation of Miranda v. Arizona. Rodriguez also moved for a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing so that the court could determine whether Rodriguez' statements were voluntarily given to Small.

The district court held several hearings on Rodriguez' motions. At the hearings on Rodriguez' first and second motions to suppress, the court received into evidence video recordings of the traffic stop, and Small testified to the facts summarized above. Perez also testified to support Rodriguez' assertion that he was in lawful possession of the vehicle and as such had standing to object to the search. Perez acknowledged in his initial statement to Small that he reported telling Rodriguez not to take his vehicle and that Rodriguez had taken it anyway. But Perez offered additional context in an attempt to clarify that statement. Perez testified that he and Rodriguez were friends and that Perez picked up Rodriguez the evening of November 8, 2019, around 8 p.m. to hang out. Perez then drove the two of them to a gas station where Perez met his girlfriend to go to Gibbon, Nebraska. Rodriguez wanted to borrow Perez' vehicle, but Perez did not want him to because he knew that Rodriguez did not have a license. To avoid further arguing with Rodriguez, Perez left his vehicle and keys with Rodriguez and went with his girlfriend in her vehicle to Gibbon, knowing that Rodriguez was going to use his vehicle.

In an order entered on August 13, 2020, the district court overruled Rodriguez' motions. Regarding the drug evidence recovered from the vehicle, the court found that Rodriguez did not have standing to contest the warrantless search. The court gave more credence to Perez' first statement to Small than Perez' later statements and testimony, and so concluded that Rodriguez had taken the vehicle without Perez' permission and was therefore not in lawful possession of the vehicle. In a later order entered on December 3, 2020, the court found that Rodriguez' statements to law enforcement were not obtained in violation of Miranda or Jackson v. Denno. The court noted that the totality of the circumstances indicated that Rodriguez' statements were voluntarily made and they were not the product of a custodial interrogation.

Stipulated Bench Trial

Following the district court's rulings on Rodriguez' motions to suppress, the case proceeded to a stipulated bench trial. The State first filed an amended information charging Rodriguez only with possession of a controlled substance, along with the allegation that he was a habitual criminal; the two other counts were dismissed. The State then offered into evidence a joint stipulation of facts by the parties. The stipulation recited the circumstances surrounding the traffic stop and the search of the vehicle, detailed the drug evidence found during that search, indicated that a laboratory test confirmed that the substance was cocaine and that roughly 25 grams of it was recovered from the vehicle, and set out various inculpatory statements made by Rodriguez via video calls while he was jailed. The stipulation referenced only two of Rodriguez' statements to

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law enforcement; his confirmation that his license was currently suspended and his assertion that the vehicle belonged to Perez. The stipulation also reiterated Rodriguez' objections and preserved the suppression issues for appeal. Thereafter, the court found Rodriguez guilty and scheduled a subsequent hearing for enhancement and sentencing.

Enhancement and Sentencing

The State offered exhibits to prove the existence of valid prior convictions for enhancement purposes. Rodriguez objected on foundation, authentication, and relevance grounds, which the district court overruled. Based on those exhibits, the court found that Rodriguez was a habitual criminal. The court then heard arguments from the parties, as well as Rodriguez himself,...

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