State v. Foster

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. FOSTER
NOTICE: 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).
STATE OF NEBRASKA, APPELLEE,
V.
LORRAINE FOSTER, APPELLANT.
Filed August 19, 2014. No. A-13-1026.
Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge.
Affirmed.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
Richard L. DeForge, Deputy Scotts Bluff County Public Defender, for appellant.
MOORE, PIRTLE, and RIEDMANN, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
Lorraine Foster appeals her conviction and sentence for possession with intent to
distribute more than 28 grams but less than 140 grams of methamphetamine, a Class IC felony
offense. Foster asserts that the district court erred in overruling her motion to suppress and in
imposing an excessive sentence. Finding no merit to Foster’s assigned errors, we affirm.
II. BACKGROUND
Shortly before midnight on April 13, 2013, a Nebraska State Patrol dispatcher received a
telephone call regarding an impending drug transaction. The caller provided his telephone
number and identified himself. He reported that his sister, “Lorraina,” and her friend, “Tina,” had
left Kimball, Nebraska, about 40 minutes prior in a black Escalade with Colorado license plates.
He stated that they were “really messed up” and were on their way to Scottsbluff, Nebraska, to
either obtain or deliver drugs. Kimball is approximately 45 miles south of Scottsbluff. The
dispatcher immediately notified the Scottsbluff Police Department of this information.
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Officer William Howton received the information from the dispatcher around midnight
and notified Officer Matthew Broderick of the same. Shortly thereafter, Officer Broderick
observed a black Lincoln Navigator with Colorado license plates and two female occupants in
the area of East 12th Street and 16th Avenue in Scottsbluff. According to the officers, a Lincoln
Navigator is similar to a Cadillac Escalade. Officer Broderick observed the Navigator for a
period of time but did not observe any traffic violations and did not make contact with the
vehicle at that time. He obtained the vehicle’s license plate number and advised Officer Howton
regarding its location.
Officer Howton proceeded to that area and soon observed a black Lincoln Navigator with
the same Colorado license plate observed by Officer Broderick. He followed the Navigator for a
short time until it pulled into a driveway on East 9th Street. Officer Howton continued on his
way and did not make contact with the vehicle at that time. However, he returned to the area a
few minutes later and observed the Navigator once again traveling eastbound on East 9th Street.
He followed the vehicle and soon observed it turn south onto 13th Avenue without activating its
turn signal.
Officer Howton initiated a traffic stop based on the purported turn signal violation, and
Officer Broderick responded to assist. The driver of the Navigator was identified as Tina Venzor;
the passenger was identified as Lorraine Foster. They reported that they had come from Kimball
and had just arrived in Scottsbluff to visit family. Officer Howton conducted a routine records
check and learned that Venzor’s driver’s license had been suspended in Wyoming. He issued
Venzor a citation for having no operator’s license and a warning for the turn signal violation. He
returned their documentation and advised them that they were free to leave, but then asked for
permission to search the vehicle. Both occupants consented to the search.
Once consent to search the vehicle was obtained, the officers instructed the occupants to
exit the vehicle and step back toward the cruiser. Both occupants carried their purses with them
as they exited the vehicle. Officer Howton then sought and obtained consent to search Venzor’s
purse. As Officer Howton was searching Venzor’s purse, Officer Broderick asked Foster whether
there was anything in her purse that “we need to know about.” Foster said “no,” then placed her
purse on the hood of the cruiser and began to open it for Officer Broderick. At that point, Officer
Howton discovered contraband in Venzor’s purse, including a glass pipe with residue that
appeared to be methamphetamine, a black pouch that contained a digital scale, and a small
baggie with an “8-ball logo” on it.
Upon locating these items in Venzor’s purse, Officer Howton placed her in handcuffs and
directed Officer Broderick to place Foster in handcuffs even though Foster’s purse had not yet
been searched. As Foster was being handcuffed, Officer Broderick asked her if there was
anything illegal in her purse, to which Foster responded, “I’m not going to lie.” After further
inquiry by Officer Broderick, Foster stated that there was methamphetamine in her purse.
Foster’s purse was subsequently searched, upon which officers located a “Crown Royal
bag” that contained several Ziploc baggies with various amounts of suspected methamphetamine
weighing a total of approximately 38 grams. They also located a digital scale and numerous
empty baggies including 10 medium Ziploc baggies and 30 small Ziploc baggies with an 8-ball
logo. Officer Howton explained that the term “8-ball” is commonly used to describe a quantity of
narcotics.
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Foster was charged with possession with intent to distribute more than 28 grams but less
than 140 grams of methamphetamine. Prior to trial, she filed a motion to suppress “[a]ny and all
observations made of her person and her actions, including statements made by [Foster], or
anything relating to the traffic stop” on the basis that “the officer did not have probable cause to
arrest [Foster] and such arrest was made without legal justification and was a violation of
[Foster’s] right to be free of unreasonable searches and seizures.” Venzor filed a motion to
suppress in the case pending against her, as well.
A consolidated suppression hearing was held to address the motions to suppress filed by
Foster and Venzor. After opening statements were given, the district court asked counsel to
identify the issues being raised in the motions to suppress. The following exchange occurred:
THE COURT: Okay. Well, let me very quick questions [sic] because suppression
motions are general, what specifically is being raised by the defendant, it’s an unlawful
traffic stop?
[Counsel for Venzor]: Yes.
[Counsel for Foster]: Statement made by my defendant before she was
Mirandized.
THE COURT: Okay. So unlawful traffic stop and then statements, either
voluntary or before Mirandized?
[Counsel for Venzor]: That’s correct. They were in custody a fair amount of time
before they were Mirandized.
The evidence adduced at the suppression hearing was consistent with the facts stated
above. The district court denied Foster’s motion to suppress, finding that the traffic stop was
valid based on the officer’s observation of a turn signal violation. It did not make any
determination as to the statements, the search, or the arrest.
The case proceeded to a jury trial, during which Foster renewed her objection to the
evidence obtained as a result of the traffic stop, claiming that “the stop was improper.” The jury
found Foster guilty of possession with intent to distribute at least 28 grams but less than 140
grams of methamphetamine. The district court sentenced Foster to a period of 10 to 16 years’
imprisonment, with a mandatory minimum of 5 years’ imprisonment as required by statute. This
appeal followed.
III. ASSIGNMENTS OF ERROR
Foster assigns that the district court erred in overruling her motion to suppress evidence
and in imposing an excessive sentence.
IV. ANALYSIS
1. MOTION TO SUPPRESS
Foster first asserts that the district court erred in overruling her motion to suppress. She
argues that the traffic stop and the ensuing investigation violated her right to be free from
unreasonable search and seizure.
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. Avey,
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288 Neb. 233, 846 N.W.2d 662 (2014). 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. Id.
(a) Validity of Traffic Stop
It is well established that a traffic violation, no matter how minor, creates probable cause
to stop the driver of a vehicle. State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013). In determining
whether the government’s intrusion into a motorist’s Fourth Amendment interests was
reasonable, the question is not whether the officer issued a citation for a traffic violation or
whether the State ultimately proved the violation. State v. Prescott, 280 Neb. 96, 784 N.W.2d
873 (2010). Instead, an officer’s stop of a vehicle is objectively reasonable when the officer has
probable cause to believe that a traffic violation has occurred. Id.
Here, Officer Howton testified that he observed the Navigator make a right-hand turn
from East 9th Street onto 13th Avenue without signaling. This was a violation of Neb. Rev. Stat.
§ 60-6,161 (Reissue 2010), which states: “No person shall turn a vehicle or move right or left
upon a roadway . . . without giving an appropriate signal in the manner provided in sections
60-6,162 and 60-6,163.” Because Venzor committed a traffic violation, Officer Howton had
probable cause to stop the Navigator.
Foster argues that the use of a turn signal was not required under these circumstances
because there was only one possible course of travel due to barricades that prevented traffic from
proceeding in any other direction. We disagree. The evidence presented at the suppression
hearing showed that there was no outlet to the north or to the east and that once the Navigator
reached the end of East 9th Street, the only possible course of travel was to turn south onto 13th
Avenue. However, we do not believe that this relieved Venzor of her duty to signal before
executing the turn. Section 60-6,161 plainly requires the use of an appropriate signal before
turning a vehicle upon a roadway and provides no exceptions based on the configuration of the
intersection. The Nebraska Rules of the Road shall be applicable and uniform throughout the
State. Neb. Rev. Stat. § 60-6,108 (Reissue 2010). Foster has not pointed to any exceptions to the
statute that would be applicable under these circumstances, nor have we discovered any such
exceptions in our research.
We are similarly unpersuaded by Foster’s argument that the Navigator was merely
following the “curve” of the roadway and was not executing a turn. The word “turn” is not
defined in the Nebraska Rules of the Road. Absent a statutory indication to the contrary, words
in a statute will be given their ordinary meaning. State v. Au, 285 Neb. 797, 829 N.W.2d 695
(2013). We agree with the district court’s conclusion that the ordinary meaning of “turn” in this
context is to “take a new direction” or “to change directions.” The Navigator was traveling east
on East 9th Street, and then turned approximately 90 degrees to travel south on 13th Avenue. We
find that this constituted a “turn,” as that word is ordinarily and commonly understood, and thus
required an appropriate turn signal.
Finally, Foster argues that the turn signal violation was merely a pretext to allow the
officers to investigate the information they had received from an unreliable informant. This
argument has no merit. As long as a traffic violation occurred, any purported ulterior motive for
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the stop is irrelevant. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012). Because the traffic
stop was legally justified based on the turn signal violation, we make no comment on whether
the informant’s report alone would have provided reasonable suspicion for the stop.
(b) Subsequent Investigation,
Search, and Arrest
Foster seems to further argue on appeal that her motion to suppress should have been
granted because the scope of the investigation was unlawfully expanded from the purpose of the
traffic stop, her consent to search was not voluntarily given, and she was arrested without
probable cause. We decline to address these arguments on appeal because they were not
presented to the trial court.
During the consolidated suppression hearing, the district court asked counsel for both
defendants to clarify the issues raised by their respective motions to suppress. The only issues
identified by counsel were the validity of the traffic stop and whether any statements were
obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). Foster did not challenge the expansion of the stop, the voluntariness of her consent, or
the existence of probable cause for her arrest in the district court. Accordingly, the district
court’s order did not address those issues.
In appellate proceedings, the examination by the appellate court is confined to questions
which have been determined by the trial court. State v. Dean, 270 Neb. 972, 708 N.W.2d 640
(2006). An issue not presented to or decided on by the trial court is not an appropriate issue for
consideration on appeal. State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012). Because these
issues were not presented to or decided by the trial court, we will not consider them on appeal.
(c) Pre-Miranda Statements
Foster claims that the statements she made at the site of the stop should have been
excluded because she had not yet been given Miranda warnings. Although Foster raised this as a
basis for exclusion of her statements in her motion to suppress, we note that the trial court did
not address these statements in its order denying the motion to suppress. We also note, however,
that Foster did not object to the admission of these statements at trial by renewing her motion to
suppress or by objecting on the basis of a Miranda violation. Rather, she was granted a
continuing objection on the basis of an “improper stop.” We find that this objection did not
properly preserve her objection to the admission of her statement on the basis of Miranda.
In a criminal trial, after an order overruling a defendant’s motion to suppress evidence,
the defendant must perform the additional procedural step of objecting at trial to the admission of
the evidence which was the subject of the suppression motion in order to preserve the question of
admissibility for appeal. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991). Furthermore,
the defendant may not assert a different ground for her objection to the admission of evidence on
appeal than was offered to the trier of fact. State. v. Jensen, 238 Neb. 801, 472 N.W.2d 423
(1991). Although Foster objected at trial to the admission of her statement, she did so on the
basis that the stop was improper, not on the basis that she was not given Miranda warnings;
therefore, the issue of whether the statement was properly admitted under this analysis is not
properly before us.
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2. EXCESSIVE SENTENCE
Foster asserts that the sentence imposed by the district court is excessive and constitutes
an abuse of discretion. She argues that the district court failed to consider various mitigating
factors when imposing her sentence. We find no merit in this argument.
Foster was convicted of a Class IC felony, punishable by a mandatory minimum of 5
years’ imprisonment and a maximum of 50 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum.
Supp. 2012). Foster’s sentence of 10 to 16 years’ imprisonment is well within the statutory limits
for this offense. Where a sentence imposed within the statutory limits is alleged on appeal to be
excessive, the appellate court must determine whether the 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. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
When imposing a sentence, a sentencing judge should consider 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 violence involved in the commission of the crime. Id. But the
appropriateness of a sentence is necessarily a subjective judgment that includes the sentencing
judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life. Id.
The district court specifically stated that it reviewed the presentence report and
considered the appropriate factors in imposing Foster’s sentence. We cannot say that the district
court abused its discretion by imposing a sentence well within the statutory range.
V. CONCLUSION
For the reasons discussed above, we affirm Foster’s conviction and sentence.
AFFIRMED.
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