STATE OF NEBRASKA V. YING H. ZHU

Little Rock, AR - Criminal defense lawyer represented defendant Rodney Dain Doster with assigning sthat the district court erred in denying his motion to suppress because the search violated his rights

under the Fourth Amendment.< /h2>

On February 1, 2019, Nebraska State Patrol trooper Justin Davis was traveling eastbound

on Interstate 80 near mile marker 290 in Buffalo County, Nebraska, when he conducted a traffic

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stop on a pickup truck for failing to use a turn signal to change lanes. Davis observed that the truck

was an extended cab pickup with a topper that also had a bike rack on the back with a bike on it.

He noticed the chain on the bike was completely rusted and that there was a zip tie around the

spokes of the front tire of the bike. Davis also observed that there were two locks on the topper of

the truck.

Davis approached the truck and made contact with the driver, identified as Zhu. Zhu

provided his name and driver’s license, which was issued in California. Davis explained the reason

for the stop, and it appeared to him that Zhu was having difficulty understanding English. Zhu told

Davis that he was on his way to Boston, Massachusetts, to meet his cousin to install cabinets. Davis

asked Zhu to accompany him back to his patrol car, and Zhu did so.

Once they returned to Davis’ patrol car, Davis contacted State Patrol Dispatch to check the

status of Zhu’s driver’s license and criminal history. At that time, Davis also initiated conversation

with Zhu, repeating that the reason for the stop was his failure to signal a lane change and

informing Zhu that he was going to give him a warning. Davis also asked Zhu questions about his

trip such as when he left California, where he was heading again, and the purpose of his trip. At

that time, Zhu said he was going to visit his sister. Davis became suspicious, not only because of

the change in Zhu’s story, but also because Zhu began to look away (looking out the window and

avoiding eye contact) and to act evasively.

While Davis was waiting for a response on the license and records check, and based on his

suspicions, he decided to deploy his drug dog, which was in his patrol car. According to a video

of the traffic stop taken from Davis’ patrol car, the deployment of the canine occurred

approximately 7 minutes into the traffic stop. Davis led his canine around the truck for

approximately 2 minutes before the canine gave a passive indication for the odor of narcotics near

the passenger taillight. Based on the canine’s indication, Davis searched the truck and discovered

several trash bags containing marijuana. A subsequent, more thorough, search was conducted after

the truck was towed to the State Patrol’s office, and a total of 90.8 pounds of marijuana was found

in the truck.

Zhu was ultimately charged with possession of marijuana with intent to distribute. Prior to

trial, he filed a motion to suppress the results of the search of the truck. A suppression hearing was

held, and the testimony revealed the information detailed above. The district court subsequently

determined that there was probable cause for the traffic stop based on the traffic violation of failing

to signal a lane change. The court additionally found that Davis had reasonable suspicion to

conduct a canine sniff and had probable cause to search the truck based on the indication of the

canine. The motion to suppress was therefore denied.

Thereafter, a stipulated bench trial was held at which Zhu renewed his motion to suppress.

The evidence presented consisted of the video recording of the traffic stop from Davis’ patrol car,

numerous photographs, and stipulated facts. The court ultimately found Zhu guilty of possession

of marijuana with intent to distribute. He was sentenced to 4 years’ probation with a jail term. Zhu

appeals.

ASSIGNMENT OF ERROR

Zhu assigns that the district court erred in denying his motion to suppress.

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STANDARD OF REVIEW

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. State v. Saitta,

306 Neb. 499, 945 N.W.2d 888 (2020). Regarding historical facts, an appellate court reviews the

trial court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment

protections is a question of law that an appellate court reviews independently of the trial court’s

determination. State v. Saitta, supra.

ANALYSIS

Motion to Suppress.

Zhu argues that the district court erred in denying his motion to suppress because his Fourth

Amendment rights were violated when Davis impermissibly expanded the traffic stop without

reasonable, articulable suspicion of criminal activity. We disagree because the deployment of the

drug detection dog was done during a lawful stop within the time period reasonably required to

accomplish the stop’s mission.

In State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018), the Nebraska Supreme Court

recognized that the U.S. Supreme Court has cautioned that a lawful traffic stop can become

unlawful if it is prolonged beyond the time reasonably required to complete the mission of the

stop. See Rodriguez v. U.S., 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015). When the

mission of an investigative stop is addressing a suspected traffic violation, the stop may last no

longer than is necessary to effectuate that purpose and authority for the seizure thus ends when

tasks tied to the traffic infraction are--or reasonably should have been--completed. Rodriguez v.

U.S., supra; State v. Barbeau, supra. However, beyond just determining whether to issue a traffic

citation or warning, an officer’s mission in a traffic stop includes ordinary inquiries incident to the

traffic stop. Rodriguez v. U.S., supra; State v. Barbeau, supra. Typically, such inquiries involve

checking the driver’s license, determining whether there are outstanding warrants against the

driver, and inspecting the automobile’s registration and proof of insurance. Rodriguez v. U.S.,

supra; State v. Barbeau, supra.

In State v. Barbeau, supra, the Nebraska Supreme Court additionally recognized that it,

too, has long held that once a vehicle is lawfully stopped, a law enforcement officer may conduct

an investigation reasonably related in scope to the circumstances that justified the traffic stop. This

investigation may include asking the driver for an operator’s license and registration, requesting

that the driver sit in the patrol car, and asking the driver about the purpose and destination of his

or her travel. Id. Also, the officer may run a computer check to determine whether the vehicle

involved in the stop has been stolen and whether there are any outstanding warrants for any of its

occupants. Id.

Zhu argues that Davis lacked the reasonable suspicion required to expand the traffic stop

beyond its initial purpose; however, the traffic stop was not expanded here. According to both the

U.S. Supreme Court and the Nebraska Supreme Court, part of an officer’s mission in a traffic stop

is to determine whether the driver has a valid license and whether there are any outstanding

warrants. See, Rodriguez v. U.S., supra; State v. Barbeau, supra. The law requires that in order to

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expand the scope of a traffic stop and continue to detain a vehicle’s occupants for the time

necessary to deploy a drug detention dog, an officer must have a reasonable, articulable suspicion

that the person is involved in criminal activity beyond that which initially justified the interference.

See State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).

In the present case, Davis did not continue detention of Zhu in order to conduct the dog

sniff; rather, the dog sniff occurred before the license and records check was complete, and thus,

prior to the completion of the traffic stop investigation. Further, the dog sniff occurred

approximately 7 minutes into the traffic stop, and Zhu does not argue that 7 minutes is an

unreasonable length of time to complete a traffic stop. A traffic stop becomes unlawful if it is

prolonged beyond the time reasonably required to complete the mission of the stop, which includes

conducting an investigation into the driver, and the authority for the seizure ends when tasks tied

to the traffic infraction are completed. Rodriguez v. U.S., 575 U.S. 348, 135 S. Ct. 1609, 191 L.

Ed. 2d 492 (2015); State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).

Here, because the canine sniff occurred before the license and criminal history check was

complete, it was done during the time required to conduct the normal investigative inquiries

relating to the stop, which an officer is permitted to do as part of the mission of the stop.

Accordingly, the traffic stop was not prolonged beyond the time reasonably required to complete

the mission of it.

With regard to the scope of the traffic stop, a dog sniff conducted during a lawful traffic

stop that reveals no information other than the location of contraband does not violate the Fourth

Amendment. See Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). See,

also, State v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018). The Court in Illinois v. Caballes,

supra, explained that drug detection dog sniffs in themselves do not infringe upon a

constitutionally protected privacy interest, because they are designed to reveal no information

other than the possession of contraband and its location. And society, the Court explained, is not

prepared to consider as either reasonable or legitimate any subjective expectation that possession

of contraband will not come to the attention of the authorities. Id.

There is no question that Davis conducted a lawful traffic stop on Zhu’s truck for a traffic

violation and that the canine sniff was completed during that traffic stop prior to the completion

of the mission of the stop. Because the sniff was done during a lawful traffic stop and revealed

nothing other than the location of the marijuana, it did not implicate Zhu’s Fourth Amendment

rights or impermissibly expand the scope of the stop. The district court therefore did not err in

finding no violation of Zhu’s Fourth Amendment rights and denying his motion to suppress.

Plain Error.

Although we affirm Zhu’s conviction, we notice plain error in the sentence imposed. An

appellate court may, at its option, notice plain error. State v. Guzman, 305 Neb. 376, 940 N.W.2d

552 (2020). Plain error may be found on appeal when an error unasserted or uncomplained of at

trial is plainly evident from the record, affects a litigant’s substantial right, and, if uncorrected,

would result in damage to the integrity, reputation, and fairness of the judicial process. Id.

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During the sentencing hearing, the court announced a sentence of 4 years’ probation with

a term of 25 days in jail with credit for 5 days served. The subsequent written sentencing order,

however, reflects a term of 4 years’ probation and 45 days in jail with 5 days of credit.

It is plain error if a written judgment is not made to conform to the pronounced judgment,

and in such circumstances, it is appropriate to modify the written judgment to conform to the

pronounced sentence. See State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020). A sentence

pronounced upon a defendant is controlling over a later erroneous written sentence. Id.

There is no question that the court had the authority to, as a condition of probation, require

Zhu to serve 25 days or 45 days in jail. See Neb. Rev. Stat. § 29-2262 (Supp. 2019). Therefore,

because the district court pronounced a valid sentence at the time of the sentencing hearing, the

court’s oral pronouncement controls.

The district court did not err in denying Zhu’s motion to suppress. We therefore affirm Zhu’s conviction, but, having found plain error in the sentence imposed, we remand the cause to the district court with directions to enter a corrected sentencing order which shall align with the court’s oral pronouncement of sentence of 4 years’ probation with 25 days in jail and credit for 5 days served.