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Date: 06-28-2020

Case Style:

State of Nebraska v. Ker L. Yang

Case Number: 28 Neb. App. 447

Judge: Riko E. Bishop

Court: Nebraska Court of Appeals

Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Jordan Osborne

Defendant's Attorney:

Need help finding a lawyer for representation for challenging the denial of his motion to suppress related to a traffic stop and the excessiveness of his sentence in Nebraska?

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Nebraska State Patrol Trooper Robert Pelster was patrolling Interstate 80 in Lancaster County, Nebraska, on February
22, 2018. He was headed westbound when he saw a Ford
Expedition (in which Yang and a passenger, Megan Winstead,
were traveling) headed eastbound; it was traveling “right
behind” a blue Toyota Tundra truck (in which Yang’s father
and mother were traveling). Trooper Pelster thought “for
sure” that the vehicles were traveling together due to their
“close proximity” and “driving behavior in and out of traffic for a short period of time.” After Trooper Pelster turned
around and positioned his cruiser behind the Tundra and
Expedition, he “watched their driving behavior for a mile or
two.” Trooper Pelster did not see a front license plate on the
Expedition but saw the rear of the vehicle was “Washingtonplated.” According to Trooper Pelster, Washington requires
front and back license plates. The trooper pulled in front of
the Expedition and saw a “solid sheet of ice and snow across
the front” and no visible “plate bracket.” Trooper Pelster
also noted the Tundra was “California-plated” and told his
dispatcher to “hold onto that plate and tag it to this traffic
stop [he] was making on the [Expedition].” At 3:49 p.m.,
Trooper Pelster initiated a traffic stop of the Expedition for
the apparent lack of a front license plate. The trooper caused
his cruiser’s in-car camera to begin to record. The Expedition
pulled over.
The cruiser video shows Trooper Pelster then approached
the passenger’s side of the Expedition. He asked the occupants for identification, and while waiting for that information, Trooper Pelster walked to the front of the Expedition;
the trooper confirmed that it did have a front license plate
but it was “fully covered.” Trooper Pelster returned to the
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passenger’s side of the Expedition and explained the reason
for the traffic stop and that he had “cleaned” off the front
license plate. Trooper Pelster asked whether the Expedition
was “a rental” and whether there was a contract (answers
inaudible); whether they were “with that blue truck in front
of ya [sic]?” (Yang or Winstead responded, “No”); where the
Expedition was rented (Yang or Winstead said, “Oregon”); and
who rented the Expedition (answer inaudible). Trooper Pelster
identified Yang, who provided a Wisconsin driver’s license,
as the driver. The passenger, Winstead, provided a Kentucky
driver’s license.
Trooper Pelster then brought Yang out to the front of the
Expedition to show him the front license plate and further
clean it off. Trooper Pelster brought Yang back to his cruiser
to “review [Yang’s] documents” and “issue him a written violation card for clear and visible plate obstruction.” Once in
his cruiser, the trooper opened the violation form and began
to look at the rental contract. The cruiser video shows that
shortly after they entered the cruiser, Trooper Pelster talked
with Yang. Yang said he was with “Megan,” who was “just
a friend.” According to Yang, they had been in Medford,
Oregon, and had been “just going around” there. Yang said
that he flew to Medford and that he knew some relatives
there. He decided to travel back with the Expedition. Trooper
Pelster asked where Winstead was from, and Yang answered,
“I think Kentucky . . . I don’t know though I just met her.”
He said he met her in Medford. Trooper Pelster again asked,
“Are you with that blue truck [(the Tundra)]?” Yang insisted,
“No no.” Trooper Pelster responded, “You were right behind
it”; Yang replied, “I was behind a lot of cars.” Yang further
denied it.
After that conversation, Trooper Pelster sought information
over dispatch regarding the Tundra; he learned that it was
registered to an individual with a last name of “Chang” from
Yreka, California. When questioned, Yang denied he knew
that person. Trooper Pelster then asked over dispatch for law
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enforcement to look out for the Tundra. After that, Trooper
Pelster resumed talking to Yang about his travel in light of
the information that the Expedition and Tundra seemed to
have come from the same area; Yang again denied that they
were together. Trooper Pelster asked again how Yang got to
Medford; Yang provided a similar answer to what he said
before. Around that time, Trooper Pelster communicated over
dispatch regarding a canine unit, because he knew one was
nearby and asked for it to come to the scene, and regarding a search on the “triple [I]” for “two subjects” (i.e., an
“Interstate Identification Index” for criminal histories on Yang
and Winstead). Trooper Pelster “ran the two individuals for
license checks to make sure their licenses were valid,” and he
also “ran criminal histories.”
After Trooper Pelster requested the search on the “Interstate
Identification Index,” he started talking with Yang about
the Expedition. From looking at the rental contract, Trooper
Pelster learned that Yang was not the renter and was not on
the contract. Trooper Pelster noted that the renter was “Bill
Yang,” whom Yang identified as his father, and that the vehicle
was rented out of Medford. The cruiser video shows that
Yang agreed he was present at the time his father rented the
Expedition but that Yang said he did not know his father’s
location at the time of the stop. Trooper Pelster asked briefly
about whether Yang had a criminal history and then had Yang
lean forward as he asked, “you don’t have anything in your
waist band?” and Yang was told to “hold on.”
Trooper Pelster then exited his cruiser and approached the
passenger’s side of the Expedition, peering through some of
its windows on the way. He asked Winstead where they were
coming from and what she was doing “there” (answers inaudible); Winstead agreed she was headed home. Winstead initially denied that she had just met Yang in Medford. Trooper
Pelster then asked if they were traveling with the Tundra
(answer inaudible); Winstead denied that, according to the
trooper. However, Trooper Pelster continued to ask about the
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Tundra (her answers are mostly inaudible, except for saying
that she had not known “him” very long and that a male and
a female were in the Tundra). Trooper Pelster recalled that
Winstead initially stated “with some hesitance” that she was
not with the Tundra or that they were not traveling with it, but
then admitted they were traveling with the Tundra. The trooper
remembered Winstead said there were two “older” people that
were possibly Yang’s parents, although she did not know their
names. The cruiser video shows that Trooper Pelster then gave
Winstead back her identification.
Trooper Pelster returned to his cruiser and continued his
paperwork. The cruiser video shows he continued to communicate over dispatch whether the Tundra had been located.
Shortly thereafter, he asked Yang, “Are your mom and dad in
the car?” Hearing no response, Trooper Pelster asked again,
“Are your mom and dad in that truck?” Yang did not respond.
According to Trooper Pelster, Yang “just shut down” and
would not talk to him anymore. Trooper Pelster asked his
dispatcher about a canine unit; the trooper asked Yang if there
was anything he needed to know because a canine was going
to be brought out and Yang answered, “nothing that I know
[of].” Shortly after that, a canine handler and canine arrived
on the scene and the canine indicated the presence of narcotics. After the canine indicated, Trooper Pelster issued a warning for the obstructed license plate and the Expedition was
searched. According to Trooper Pelster, 29 grams, or about 1
ounce, of “personal use” marijuana was found in Winstead’s
purse. Trooper Pelster then waited to see what transpired with
the Tundra.
Another trooper was on patrol on Interstate 80 on February
22, 2018, when he was asked to look out for the Tundra.
That trooper spotted the Tundra just after 4 p.m. and pulled
it over for speeding. After some questioning, during which
Yang’s father said everything in the bed of the Tundra was his,
Yang’s father was issued a warning for speeding. With Yang’s
father’s verbal consent, the Tundra was searched. According to
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Trooper Pelster, the search of the bed of the Tundra revealed
seven large trash bags containing “heat-sealed bags” of about
218 pounds of marijuana. Yang, Winstead, and Yang’s father
were arrested, and Yang’s mother was released from police
custody after an initial investigation was completed.
Procedural History
In April 2018, the State charged Yang with possession of
marijuana with intent to deliver. In August, Yang filed a motion
to suppress evidence gathered by law enforcement as the result
of his seizure, detention, and arrest. Yang alleged that the initial traffic stop on February 22 led to a “continued detention”
that was unsupported by “reasonable suspicion” and a search
of his vehicle in violation of the Nebraska Constitution and the
4th and 14th Amendments to the U.S. Constitution. There was
a hearing on that motion (and others unrelated to this appeal).
In December, the district court issued an order in which it
denied Yang’s motion to suppress.
Trial took place on May 6 through 8, 2019. At the outset,
defense counsel made a continuing objection to “any testimony
from — or opening with regard to the search of the Explorer
pursuant to [Yang’s] motion to suppress”; it was overruled.
Trial evidence consisted of the testimony of Trooper Pelster,
the trooper who pulled over the Tundra, Winstead, and Yang’s
father, as well as various exhibits, including cruiser videos of
each traffic stop; photographs of the Expedition, the Tundra,
and the seized black trash bags; and documentation about the
seized marijuana. After the State rested its case in chief, the
defense moved for a directed verdict. The motion was denied.
The defense presented evidence and then rested. On May 8, the
jury found Yang guilty of possession of marijuana with intent
to deliver. The district court accepted the jury’s verdict and
entered judgment the same day finding Yang guilty as charged.
On July 10, Yang was sentenced to 3 to 6 years’ imprisonment,
with 2 days’ credit for time served.
Yang appeals.
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ASSIGNMENTS OF ERROR
Yang claims the district court (1) erroneously denied his
motion to suppress and (2) imposed an excessive sentence.
STANDARD OF REVIEW
[1,2] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment,
we apply a two-part standard of review. State v. Shiffermiller,
302 Neb. 245, 922 N.W.2d 763 (2019). Regarding historical
facts, we review the trial court’s findings for clear error. Id.
But whether those facts trigger or violate Fourth Amendment
protections is a question of law that we review independently
of the trial court’s determination. State v. Shiffermiller, supra.
When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all
the evidence, both from the trial and from the hearings on the
motion to suppress. Id.
[3] The ultimate determinations of reasonable suspicion to
conduct an investigatory stop and probable cause to perform a
warrantless search are reviewed de novo, and findings of fact
are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. Id.
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Garcia, 302 Neb. 406, 923 N.W.2d
725 (2019).
ANALYSIS
Motion to Suppress
[5-7] Yang claims the district court erred by denying his
motion to suppress. Both the Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures. State v.
Garcia, supra. A traffic stop is a seizure for Fourth Amendment
purposes, and therefore is accorded Fourth Amendment protections. State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).
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Yang does not contest the validity of the initial traffic stop
for the apparent lack of a front license plate which turned out
to be present but obstructed, and we agree with the district
court that the initial traffic stop was justified. See id. (traffic violation, no matter how minor, creates probable cause to
stop driver of vehicle). See, also, Neb. Rev. Stat. § 60-399(2)
(Reissue 2010) (requirement for display of license plates to be
“plainly visible”).
Yang argues, however, that the traffic stop was unlawfully
extended. He contends Trooper Pelster could have issued a
warning citation and “completed his stop” after the status of
the Expedition and Yang’s license were checked and after the
“warrant check” for Yang and Winstead was completed. Brief
for appellant at 8. Yang complains Trooper Pelster prolonged
the stop “by speaking with other officers regarding the location of the [Tundra] and re-contacting Winstead, although
[Trooper Pelster] had all the necessary information to complete
the warning for the initial stop.” Id. at 9.
[8-10] 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,
such as issuing a warning ticket. 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. Id. 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. Id. 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. Id.
[11] Similarly, the Nebraska Supreme Court has long held
that once a vehicle is lawfully stopped, a law enforcement
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officer may conduct an investigation reasonably related in
scope to the circumstances that justified the traffic stop.
See State v. Barbeau, supra. 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.
Further, the Eighth Circuit has held that if a defendant is
detained incident to a traffic stop, the officer does not need
reasonable suspicion to continue the detention until the purpose
of the traffic stop has been completed. U.S. v. Gunnell, 775
F.3d 1079 (8th Cir. 2015). Occupants may be detained while
the officer completes a number of routine but somewhat timeconsuming tasks related to the traffic violation. Id. These tasks
can include a computerized check of the vehicle’s registration
and the driver’s license and criminal history, as well as the
preparation of a citation or warning. Id. The officer may also
ask questions about the occupant’s travel itinerary. Id.
After the Expedition was lawfully stopped and before
any traffic citation was issued, Trooper Pelster’s investigation related to the stop involved the following: viewing the
obstructed front license plate, retrieving identification documents from Yang and Winstead, advising them of the reason
for the stop, showing Yang the obstructed front license plate
and cleaning it off, having Yang sit in his cruiser, reviewing
Yang’s “documents” and beginning to complete paperwork
for the stop, reviewing the rental contract for the Expedition,
and running a check of Yang’s and Winstead’s licenses and of
their criminal histories. These tasks were either directly related
to the reason for the traffic stop or were reasonably related in
scope to that purpose. See State v. Barbeau, 301 Neb. 293,
917 N.W.2d 913 (2018). Further, Trooper Pelster was within
the scope of the initial stop when he questioned Yang and
Winstead about the purpose and destination of their travels.
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See id. It was acceptable for Yang and Winstead to be jointly
questioned about the Expedition and whether they were traveling with the Tundra, which the trooper had seen traveling in
front of them. The trooper also had the authority to ask Yang
individually about the same, as well as inquire about his travel
companion Winstead and their travel plans.
Yang asserts that Trooper Pelster unlawfully prolonged the
stop when he began to speak “with other officers regarding the
location of the [Tundra].” Brief for appellant at 9. However,
such an action was reasonably related to the scope of the stop
because it had to do with Trooper Pelster’s questions about
Yang’s travel and whether he was in fact traveling with the
Tundra. Accordingly, once Trooper Pelster received the registration information for the Tundra, he reasonably confronted
Yang with that information for further clarification of Yang’s
purpose and destination of travel.
[12] Yang contends Trooper Pelster further unlawfully prolonged the initial stop due to questioning Winstead individually. However, it is within the scope of the initial traffic stop
for an officer to engage in “similar routine questioning of
passengers in [a] vehicle to verify information provided by
the driver.” See State v. Voichahoske, 271 Neb. 64, 71, 709
N.W.2d 659, 668 (2006). See, also, U.S. v. Sanchez, 417
F.3d 971 (8th Cir. 2005) (officer may question passengers to
verify information provided by driver). Trooper Pelster asked
Winstead appropriate questions regarding her association with
Yang and their travel plans. The cruiser video of the stop
shows that Trooper Pelster accomplished several acceptable
tasks reasonably related in scope to the initial stop within
only about 12 minutes. Therefore, like the district court, we
are not persuaded by Yang’s argument that the initial traffic
stop was impermissibly prolonged. The scope and length of
the detention of Yang were extended sometime shortly after
Trooper Pelster finished questioning Winstead individually
and returned her license to her. At this point, the inconsistencies in the information provided to the trooper justified continued detention.
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[13-16] In order to expand the scope of a traffic stop and
continue to detain the motorist for the time necessary to
deploy a drug detection dog, an officer must have a reasonable,
articulable suspicion that a person in the vehicle is involved
in criminal activity beyond that which initially justified the
stop. State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011).
Reasonable suspicion entails some minimal level of objective
justification for detention, something more than an inchoate
and unparticularized hunch, but less than the level of suspicion
required for probable cause. Id. Whether a police officer has
a reasonable suspicion based on sufficient articulable facts
depends on the totality of the circumstances. Id. Courts must
determine whether reasonable suspicion exists on a case-bycase basis. Id.
[17] Factors that would independently be consistent with
innocent activities may nonetheless amount to reasonable
suspicion when considered collectively. Id. For example, evidence that a motorist is returning to his or her home state in a
vehicle rented from another state is not inherently indicative
of drug trafficking when the officer has no reason to believe
the motorist’s explanation is untrue. Id. But a court may nonetheless consider this factor when combined with other indicia
that drug activity may be occurring, particularly the occupant’s contradictory answers regarding his or her travel purpose and plans or an occupant’s previous drug-related history.
Id. (finding reasonable suspicion; defendant flew to California
and was driving back to Missouri for short trip, his name was
not listed on rental agreement for vehicle, he had criminal
history—including drug-related arrest he failed to mention,
and was extremely nervous). See, also, State v. Howard, 282
Neb. 352, 803 N.W.2d 450 (2011) (finding reasonable suspicion; among other things, defendant was in vehicle rented by
third party and claimed to have been only one to drive for
length of long trip but was not identified as authorized driver
on rental agreement).
Travel plans described as somewhat unconventional may
not necessarily be indicative of criminal activity. See State
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v. McGinnis, 8 Neb. App. 1014, 608 N.W.2d 605 (2000)
(unusual or suspicious travel plans may not always give rise
to reasonable suspicion). But when travel plans seem unusual
and are not reasonably explained, such circumstances may
give rise to reasonable suspicion. See, State v. Howard, supra
(unusual length, nature, expense, and duration of trip weighed
heavily in favor of finding reasonable suspicion); State v.
Kehm, 15 Neb. App. 199, 724 N.W.2d 88 (2006). While
the Eighth Circuit has found travel originating in a location
known for drug activity to be of limited value in determining
reasonable suspicion, such a circumstance can contribute to a
finding of reasonable suspicion where there are other existing
suspicious factors of criminal activity. See, U.S. v. Fuse, 391
F.3d 924 (8th Cir. 2004); U.S. v. Beck, 140 F.3d 1129 (8th
Cir. 1998).
Trooper Pelster testified during the suppression hearing that
he had been a trooper since 2000 and had been twice certified
in criminal interdiction. Among other training and experience, he had patrolled Interstate 80 for about 18 years and
had personally made 240 interdictions resulting in arrests of
about 400 people for drug-related offenses or other felonies.
The record does not show any reason to question the district
court’s finding that Trooper Pelster’s testimony was “entirely
credible in all respects.” With Trooper Pelster’s extensive
training and education in criminal interdiction in mind, we discuss the key factors supporting reasonable suspicion that Yang
was involved in criminal activity unrelated to the underlying
traffic offense.
Prior to stopping the Expedition, Trooper Pelster said he
saw the Expedition “right behind” the Tundra and he thought
“for sure” those vehicles were traveling together due to their
“close proximity” and “driving behavior.” He also recalled
seeing the people in the Tundra were “male-female or two
males maybe in their 50[’]s or 60[’]s.” Drug traffickers use
“vehicles traveling together” to transport contraband across the
country. An “escort vehicle[]” may be used to travel behind a
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“load vehicle” (containing contraband) to ensure that contraband reaches its destination. Escort vehicles generally do not
contain contraband and are driven by people who are responsible for the “load” and recruit people to drive the “loads” for
pay. Trooper Pelster indicated that drug traffickers tend to “use
perceived police biases,” e.g., “male/female, elderly,” when
choosing who will be in the load vehicles.
Further, between the time of the stop of the Expedition
through the individual questioning of Winstead, Trooper
Pelster learned the following: The Expedition that Yang was
driving was rented by Yang’s father. Yang claimed he did
not know where his father was at the time of the stop. The
Expedition was rented from Oregon, although Yang was from
Wisconsin. Yang flew to Oregon but was making his return
trip by vehicle without explanation; Trooper Pelster indicated vehicles are preferred over airplanes for transporting a
large amount of marijuana. Yang referred to Winstead only
as “Megan”; Yang and Winstead did not know each other’s
last names. Therefore, Yang and Winstead were, as the district court put it, “near stranger[s],” but traveling across the
country together, and Yang offered no logical explanation
for this. Yang said he had just met Winstead in Medford
but, at least initially, Winstead denied that. Yang repeatedly
denied traveling with the Tundra, but Winstead ultimately
contradicted that, and added that Yang’s parents were possibly in the Tundra. The Expedition and Tundra were both
headed from about the same area near the Oregon-California
border. According to Trooper Pelster, Medford (where Yang
and Winstead were traveling from) is a “transportation hub,”
meaning an area where “large quantities of drugs are brought
and stored” and then “moved” to “distribution cities . . . that
are highly populated [and] consume large quantities of drugs,
like Green Bay.”
Although the district court also noted Yang’s “nervousness
and failure to answer questions,” Trooper Pelster’s testimony
during the suppression hearing related to the nervousness of
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motorists in general terms; there was no testimony in this case
that Yang was nervous during the stop. Nor does the cruiser
camera footage of the stop contain a concrete indication or
statement related to Yang’s mental state. Accordingly, we do
not consider Yang being “nervous” as a factor in our analysis. With regard to the district court’s finding that Yang failed
to answer questions, we note that Yang stopped answering
Trooper Pelster’s questions near the end of the stop. Because
this happened after the trooper already had reasonable suspicion to extend the scope of the stop, it is not necessary to
consider Yang’s refusal to answer questions when considering
whether reasonable suspicion existed to extend the duration of
the stop.
Yang relies on U.S. v. Beck, 140 F.3d 1129 (8th Cir. 1998),
to support that he was unlawfully detained after the traffic
stop. He points out that in Beck, the Eighth Circuit found the
totality of the circumstances failed to generate reasonable suspicion to warrant an extended detention of the traffic stop at
issue in that case. The circumstances in Beck included the following: The defendant’s rental car, licensed in California, was
rented by an absent third party; there was fast-food trash on
the passenger-side floorboard; there was no visible luggage
in the passenger compartment of the vehicle; the defendant
had a nervous demeanor; the defendant was traveling from a
drug source state to a drug demand state; and the officer did
not believe the defendant’s explanation for the trip. But, as
the district court in this case noted, Beck is distinguishable. It
involved an officer’s need for reasonable suspicion to extend
a traffic stop after the investigation related to the traffic stop
had already concluded, a verbal warning had been given, and
the motorist had been told he was free to leave. Here, the
scope of the stop was extended after the trooper spoke with
Winstead, which we have already explained was permissible,
and inconsistencies arose in the information provided to the
trooper. The reasonable suspicion for the extended detention
arose before a warning citation was issued to Yang.
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STATE v. YANG
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We agree with the district court that this case is more akin
to U.S. v. Ward, 484 F.3d 1059 (8th Cir. 2007), in which a
defendant likewise claimed that a traffic stop was unreasonably extended. In Ward, the defendant was pulled over by a
trooper for a traffic violation. The trooper knew the defendant’s vehicle was a rental before stopping it. The trooper
retrieved the defendant’s license and rental agreement and
asked the defendant to accompany him to the patrol car for a
warning ticket. There, the trooper asked the defendant about,
among other things, his travel plans and purpose, residence,
and his female passenger. Before completing the warning
ticket, the trooper exited the patrol car to check the vehicle
identification number and then approached and questioned the
passenger. Ward noted that “as part of a reasonable investigation, an ‘officer may also question a vehicle’s passengers to
verify information provided by the driver.’” Id. at 1061. The
passenger in Ward gave contradictory information regarding
her association to the defendant and about their travel plans.
And when reasonably related questions result in inconsistent
answers, such circumstances can give rise to suspicions unrelated to the traffic offense and law enforcement may broaden
its inquiry to satisfy those suspicions, so long as the broadened
inquiry is reasonable. See id.
As noted by the district court, reasonable suspicion existed
no later than the moment Winstead told Trooper Pelster statements which were inconsistent with what Yang had said
regarding their relation to one another and to the Tundra,
especially when considered with all the other preceding suspicious circumstances listed previously. See U.S. v. Ward, supra
(stop lawfully broadened; driver told trooper that passenger
was his girlfriend and that they both loaded trailer on their
vehicle while passenger denied that information). See, also,
U.S. v. Sanchez, 417 F.3d 971 (8th Cir. 2005) (conflicting stories from passengers and driver may justify expanding scope
of stop and detaining occupants); State v. Verling, 269 Neb.
610, 694 N.W.2d 632 (2005) (determination of inconsistent
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explanations of reason for trip given by driver and passenger
may justify expansion of inquiry during traffic stop; it was
reasonable for officer to suspect that driver and passenger
were transporting illegal drugs where they gave conflicting accounts as to why they were returning to Illinois over
land instead of by air and as to where they stayed while in
Arizona). Although some or all of the above-described factors
may be innocent when considered individually, when viewed
from the standpoint of an objectively reasonable law enforcement officer, the totality of the circumstances established a
reasonable, articulable suspicion that Yang was involved in
unlawful activity justifying Yang’s continued detention pending arrival of the canine unit. See State v. Nelson, 282 Neb.
767, 807 N.W.2d 769 (2011).
[18] If reasonable suspicion exists for a continued detention,
the court must consider whether the detention was reasonable
in the context of an investigative stop, considering both the
length of the continued detention and the investigative methods employed. State v. Howard, 282 Neb. 352, 803 N.W.2d
450 (2011). An investigative stop must be temporary and last
no longer than is necessary to effectuate the purpose of the
stop. Id. Similarly, the investigative methods employed should
be the least intrusive means reasonably available to verify or
dispel the officer’s suspicion in a short period of time. Id.
Trooper Pelster used a canine sniff as an investigative method
in this case, a method that is considered to be minimally intrusive. See id. There is no rigid time limitation on investigative
stops. Id. From the time Trooper Pelster walked back to his
cruiser after questioning Winstead individually to the time the
canine sniff was completed was only about 5 minutes. The
continued detention of Yang was therefore reasonable in the
context of an investigative stop. See id.
The district court correctly denied the motion to suppress.
Excessive Sentence
Yang was convicted of possession of marijuana with intent
to deliver under Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. YANG
Cite as 28 Neb. App. 447
2018), which is a Class IIA felony pursuant to § 28-416(2)(b).
See Neb. Rev. Stat. § 28-405(c)(7) [Schedule I] (Supp. 2017).
A Class IIA felony is punishable by up to 20 years’ imprisonment. Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2018). Yang
was sentenced to 3 to 6 years’ imprisonment, with 2 days’
credit for time served. His sentence is within the applicable
sentencing range. We will not disturb Yang’s sentence absent
an abuse of discretion by the district court. See State v. Garcia,
302 Neb. 406, 923 N.W.2d 725 (2019).
[19,20] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in
considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed. State v. Garcia, supra. In determining a sentence
to be imposed, relevant factors customarily considered and
applied are the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense
and (8) the amount of violence involved in the commission of
the crime. Id.
The presentence investigation report (PSR) showed Yang
was 32 years old at the time of his sentencing. He was born
in Thailand and immigrated to the United States while still
an infant. He was pursuing a “General Education Diploma”
but denied starting testing. The PSR showed that for the year
before his interview, he did two to three “construction projects” each month for cash. Yang admitted he had not held any
“legitimate employment” in the year before his presentence
interview. Despite this, he had been “commuting between
California and Wisconsin.”
Yang’s criminal history includes juvenile offenses. As an
adult, Yang has been charged with violating probation, felony “[b]ail [j]umping,” and battery, which was amended
down to a charge of disorderly conduct; the disposition of
those charges was unknown. Yang also has a December 2009
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. YANG
Cite as 28 Neb. App. 447
conviction for battery related to a domestic abuse incident,
for which he was sentenced to 18 months’ probation and 20
days’ jail time, and a charge of disorderly conduct that was
dismissed. The circumstances of Yang’s present conviction
were set forth in the PSR. Yang “appeared to be engaging
in minimization and denial regarding his involvement in the
present offense.” The PSR showed that Yang’s codefendants,
his father and Winstead, were charged with the same offense
as Yang for the February 2018 incident; both entered pleas on
reduced charges of attempted possession of marijuana with
intent to deliver. Winstead was sentenced to 4 years’ probation. Yang’s father was sentenced to 30 months’ imprisonment
and 18 months’ post-release supervision, with 1 day’s credit
for time served.
On the “Level of Service/Case Management Inventory,”
Yang scored “medium risk” in the domains of criminal history,
family/marital, and alcohol/drug problem; “high risk” in the
domains of education/employment and leisure/recreation; and
“very high risk” in the domains of companions, procriminal
attitude/orientation, and antisocial pattern. Overall, Yang was
at a “very high risk to re-offend with a total score of 31.”
During the sentencing hearing, the district court said it had
reviewed the PSR. Yang’s counsel pointed out that Winstead
was placed on probation. Yang’s counsel asked for a sentence
of probation for Yang as well, arguing that it appeared that
Yang’s father was the “most culpable,” while Yang fell “somewhere much closer to . . . Winstead.” Alternatively, Yang’s
counsel requested a sentence less than that given to his father.
Yang was given the chance to personally address the court, but
he declined to do so.
The district court said it had noted Yang’s age, education
level, and background; his criminal record, which included
“some battery and a juvenile record”; and the motivation for
and the nature of the offense that appeared to be for “financial
gain,” noting Yang indicated he did not use “it” (marijuana)
himself. The court considered that there was no violence or
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. YANG
Cite as 28 Neb. App. 447
minor children involved. The court said it did not seem like
Yang had a “steady job” despite a “[c]laim” of doing “some
construction for cash a couple of times a month.” Yang was
“still” going back and forth from California to Wisconsin
and “claiming to do construction jobs”; “there’s just not a lot
forthcoming about any of that.” The court was concerned with
the “significant” amount of marijuana being transported in this
case in disregard for Nebraska law. The court stated, “[T]hat
much marijuana being transported through the state is dangerous . . . in the wrong hands.”
On appeal, Yang reiterates that Winstead was sentenced to
4 years’ probation and that Yang’s father was sentenced to
30 months’ imprisonment. Yang argues that his codefendants
appeared to be “more culpable” based on the facts at trial.
Brief for appellant at 18. He says he appears to be, “at worst,”
similarly situated to Winstead in terms of criminal culpability.
Id. To Yang, it is “hard to fathom why [he] received a harsher
sentence than [his father].” Id. However, Yang did not enter a
guilty plea to a reduced charge and was therefore convicted of
a more significant offense than his father and Winstead. Yang
was convicted of a Class IIA felony. He could have been sentenced to up to 20 years’ imprisonment. His sentence of 3 to 6
years’ imprisonment is on the low end of the sentencing range
and is not an abuse of discretion.
Yang also argues that, like Winstead, he should have
received a sentence of probation. While our record does not
contain the circumstances of Winstead’s life (beyond that
related to the February 2018 offense), the PSR indicates that
Yang had “multiple probation violations” on his criminal
record. Further, the district court concluded from its review
of the PSR that imprisonment of Yang was necessary for the
protection of the public and because (1) the risk was substantial that during any period of probation Yang would engage in
additional criminal conduct and (2) a lesser sentence would
depreciate the seriousness of Yang’s crimes and promote disrespect for the law.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
STATE v. YANG
Cite as 28 Neb. App. 447
[21] The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life. State v.
Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019). The record
establishes that after review of the PSR, the district court considered the appropriate factors in determining Yang’s sentence.
See id. (sentencing factors). The district court did not abuse its
discretion in sentencing Yang.

Outcome: We affirm Yang’s conviction and sentence.

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