State v. Terry
| Decision Date | 26 February 2019 |
| Docket Number | No. A-18-341.,A-18-341. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. VICTORIA R. TERRY, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and Todd C. Molvar for appellant.
Douglas J. Peterson, Attorney General, and, on briefs, Joe Meyer for appellee.
Victoria R. Terry was convicted in the district court for Lancaster County of two counts of possession of a controlled substance. The court sentenced her to concurrent 180-day jail terms followed by 12 months' postrelease supervision. On appeal, Terry claims that her motions to suppress should have been granted due to violations of her right to be free of unreasonable searches and seizures and her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). She further claims the district court erred in imposing an excessive sentence for her convictions. We find no merit to the arguments raised on appeal and therefore affirm.
In the early morning of April 24, 2017, Officer Kevin Meyer of the Lincoln Police Department was following a pickup truck traveling northbound in the far right lane of a three-lane street. In the course of about 6 seconds, the pickup merged from the far right lane into the center lane and then from the center lane into the far left lane, where it turned left. The pickup did not display signal lights before the turn, but its driver did extend his arm out of the window horizontally to signal the turn. Because Meyer did not observe signal lights and because the pickup turned so abruptly, Meyer signaled the pickup to pull over.
Meyer found two occupants in the pickup, the driver and Terry, who had a backpack at her feet. The driver seemed excessively nervous to Meyer because he was shaking and unable to keep still. Meyer asked the driver about his recent narcotic use. The driver told Meyer he had used narcotics a few days before and, upon Meyer's request, consented to a search of his pickup. The driver withdrew his consent, however, after Terry told him that he was not required to allow the search.
As Meyer was filling out a warning citation for the driver, he searched the driver's and Terry's names in the police records management system. His search showed both had prior contacts for narcotics use, which prompted him to ask Officer Christopher Howard, a drug-detecting dog handler, and Officer Barksdale with the Lincoln Police Department to come to the traffic stop. Howard and a drug-detecting dog arrived 4 minutes after they were dispatched, and Meyer was still writing the warning citation when they arrived. The driver and Terry were asked to exit the vehicle before the dog was deployed.
The dog alerted and indicated the odor of a controlled substance coming from the passenger side of the pickup's cab. Meyer searched the pickup. Because he did not find any illegal items inside it, he searched the driver and Terry, who had taken her backpack with her when she exited the pickup. In the backpack, Meyer found a prescription bottle containing pills, which he identified as Adderall and Alprazolam using a pill identification website. The prescription label on the bottle did not show that it contained either substance. Meyer asked Terry if she had a prescription for Adderall of Alprazolam. She replied that she did not, but rather was holding them for a friend. Meyer did not question Terry further and arrested her.
The State charged Terry by information with two counts of possession of a controlled substance under Neb. Rev. Stat. § 28-416(3) (Reissue 2016).
Terry filed two motions to suppress. The first alleged that the stop, detention, search, and arrest violated her rights under the 4th, 5th, and 14th Amendments to the U.S. Constitution as well as article I, § 7, of the Nebraska Constitution. The second motion alleged that any statements, admissions, or confessions Terry made during the traffic stop were obtained in violation of her rights under the 5th, 6th, and 14th Amendments to the U.S. Constitution; article I, § 12, of the Nebraska Constitution; and Miranda, supra.
At the hearing on Terry's motions, the court received a video recording of the traffic stop into evidence, and Meyer and Howard both testified to the facts summarized above.
Meyer also testified that the pickup did not smell of alcohol or drugs during the traffic stop, and he did not see alcohol or drugs in it. Meyer indicated that he had arrested the driver a month before the traffic stop at issue in this case for the possession of a marijuana pipe. Before that arrest, Meyer had known the driver's reputation for substance abuse. The driver appeared more nervous to Meyer during this stop than he had during Meyer's interaction with him a month before. Meyer asked the driver for consent to search the pickup because of the driver's criminal history. He didnot read Terry her Miranda rights, and he did not hear Barksdale or Howard read them to Terry either.
Howard testified that his drug-detecting dog is trained to detect methamphetamine, marijuana, cocaine, and heroin odors, but is not trained to detect the odor of pills. Howard did not know how long he and the dog were at the scene of the stop, but he estimated that about 3 minutes passed between his arrival and the dog's alert and indication.
The court entered an order denying Terry's motions to suppress. The court found that because the driver did not approach the left turn in the extreme left-hand lane, Meyer had probable cause to stop the vehicle for the traffic infraction. The court noted that because of the driver's level of nervousness, Meyer's previous narcotics contact with the driver, and the driver's admission of using illegal drugs within a couple of days of the stop, Meyer called for Howard and the drug-detecting dog. The court found that their arrival did not delay the original purpose of the stop because Meyer had not yet completed his paperwork on the traffic stop. And because the dog alerted at the passenger side door, the court found that Meyer had probable cause to search the pickup, its passengers, and any containers that were in it, including Terry's backpack. The court also found that Terry was not under arrest when Meyer questioned her about the pills in her backpack, but rather she was subject to a lawful traffic stop and search. Thus, Meyer's questions were not a custodial interrogation or their functional equivalent, and Meyer was not required to read Terry her Miranda rights before asking them.
On January 23, 2018, the district court held a bench trial on stipulated facts. The stipulation stated that Meyer and Howard would testify at trial consistent with their testimony on the motion to suppress, their police reports, the video recording, and a laboratory report, each of which were received into evidence. Terry objected to the exhibits and testimony on the same grounds that she did in her motions to suppress. The court found Terry guilty on both counts of the State's information.
A sentencing hearing was held on March 30, 2018. The court noted Terry's failure to submit to a drug and alcohol evaluation and to admit she had a problem with drugs and alcohol. Because of Terry's past convictions for driving under the influence and attempted possession as well as her failure to take responsibility for the controlled substances in her possession in this case, the court found substantial and compelling reasons not to impose a sentence of probation. Giving Terry credit for 3 days served, the court ordered her to serve concurrent 180-day sentences in the Lancaster County Jail, followed by 12 months of postrelease supervision.
Terry appeals.
Terry assigns that the district court erred in (1) overruling her motions to suppress and (2) imposing an excessive sentence.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whetherthose facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently of the trial court's determination. State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).
In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), we apply a two-part standard of review. With regard to historical facts, we review the trial court's findings for clear error. Id. Whether those facts suffice to meet the constitutional standards, however, is a question of law which we review independently of the trial court's determination. State v. Williams, 26 Neb. App. 459, 920 N.W.2d 868 (2018).
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 (2018). A determination of whether there are substantial and compelling reasons under § 29-2204.02(2)(c) is within the trial court's discretion and will not be reversed on appeal absent an abuse of discretion. State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
Terry assigns that the district court erred in overruling her motions to suppress. As discussed below, this assignment is without merit.
Terry argues the...
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