Opinion
No. A-12-259.
10-16-2012
STATE OF NEBRASKA, APPELLEE, v. KENNETH R. WALTZ, JR., APPELLANT.
Glenn A. Shapiro, of Schaefer Shapiro, L.L.P., for appellant. Jon Bruning, Attorney General, George R. Love, and Dain J. Johnson, Senior Certified Law Student, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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).
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Glenn A. Shapiro, of Schaefer Shapiro, L.L.P., for appellant.
Jon Bruning, Attorney General, George R. Love, and Dain J. Johnson, Senior Certified Law Student, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
SIEVERS, Judge.
Kenneth R. Waltz, Jr., was convicted in the district court for Lancaster County of "Deliver or with Intent to Deliver" marijuana, a Class III felony. In his appeal, Waltz alleges that the district court erred by overruling his motion to suppress and by imposing an excessive sentence. We affirm.
BACKGROUND
On January 6, 2011, Trooper Robert Pelster was on patrol at 3:30 p.m. He was positioned on Interstate 80 near mile marker 397, facing eastbound traffic. Pelster was conducting radar and monitoring both eastbound and westbound traffic. Pelster observed an eastbound silver Cadillac following a black sedan at an unsafe distance of only one to two car lengths for one-eighth of a mile. Pelster initiated a traffic stop of the Cadillac at mile marker 399, on the west edge of Lincoln.
During the traffic stop, Pelster made a passenger side approach. Waltz was identified as the driver of the vehicle, and his wife, Donata Compa, was in the front passenger seat. Pelster advised Waltz that the reason he was stopped was for following another vehicle too closely and that a written warning would be issued. Pelster requested Waltz' and Compa's licenses and the vehicle's registration and asked Waltz to accompany him to the cruiser while he issued the warning.
While in the cruiser, Pelster ran a records check of Waltz' and Compa's licenses and criminal histories, as well as the vehicle's registration. While waiting for the results of the records check, Pelster engaged Waltz in casual conversation about his travels and prior arrests. Waltz told Pelster he was traveling from California to New York and that he had no prior arrests or charges. When the results of the criminal history check came back, it showed that Waltz was a multistate offender, having three previous drug arrests in Arizona, California, and Nevada. The criminal history check also showed that Compa had a 2001 drug arrest. Because the vehicle's registration was expired, Pelster approached the vehicle again and asked Compa for the current registration. While obtaining the current registration, Pelster noted a marijuana odor emanating from the vehicle. Pelster returned to the cruiser and finished giving Waltz his warning for following too closely.
After finishing with the traffic warning, Pelster confronted Waltz about the marijuana odor. Waltz claimed there was no marijuana in the vehicle. Waltz stated that he did have a medical marijuana card, but again claimed that he had no marijuana on his person or in the vehicle. Pelster advised Waltz that the odor of marijuana provided probable cause for a search of the vehicle and that he intended to conduct such search. Pelster called another unit to assist. Pelster then advised Compa that he was going to search the vehicle and escorted her to the cruiser.
Trooper LeJay Jones arrived at the location to assist Pelster with the search. The troopers found three 5-gallon buckets in the trunk containing multiple packages of high-grade marijuana. The troopers found a total of 11½ pounds of marijuana in Waltz' vehicle. Waltz and Compa were arrested for possession of marijuana with intent to deliver and were transported to a Lancaster County correctional facility. Because this appeal relates only to Waltz, Compa will not be discussed any further.
The State filed an information charging Waltz with one count of "Deliver or with Intent to Deliver" marijuana, a Class III felony.
Waltz filed a motion to suppress the results of the stop, search, and arrest. In his motion, Waltz alleged that the arresting officer lacked reasonable grounds to believe Waltz was committing a law violation and that therefore, the traffic stop and subsequent search of the vehicle were a violation of the 4th and 14th Amendments to the U.S. Constitution, and his rights under the Nebraska Constitution. He also argues that because the search of his automobile was conducted without consent and without a warrant, the search violated his constitutional rights.
A suppression hearing was held on September 29 and October 13, 2011. Pelster testified to the facts set forth above. Pelster also testified that he had an unobstructed view of eastbound traffic for three-fourths of a mile. He testified that a safe distance for following another vehicle would be 2 seconds. Pelster testified that he observed Waltz traveling only one to two car lengths, or less than half a second, behind the black sedan for one-eighth of a mile. Waltz testified that the black sedan pulled in front of him at a distance of one car length or less. Waltz testified that he had to turn his cruise control off or he would have hit the sedan. Waltz testified that he was two to three car lengths behind the sedan.
After the first suppression hearing, Pelster realized he made a mistake in his testimony and notified the State, which then notified Waltz' counsel. Waltz filed a motion to reopen the motion to suppress hearing, which was granted. The second suppression hearing was held on December 23, 2011. At the second suppression hearing, Pelster noted error in his previous testimony and subsequently testified that he had an unobstructed view of eastbound traffic for only one-eighth of a mile, not three-fourths of a mile as he previously testified. However, Pelster again testified that he observed Waltz following the black sedan too closely for one-eighth of a mile. The district court found that the evidence established that Pelster did have probable cause to stop the vehicle and had probable cause to search the vehicle. Therefore, the district court overruled Waltz' motion to suppress.
After a stipulated bench trial, in which Waltz preserved his objections relating to the motion to suppress, the district court found Waltz guilty of "Deliver or with Intent to Deliver" marijuana, a Class III felony. Waltz was later sentenced to 2 to 4 years' imprisonment. Waltz now appeals.
ASSIGNMENTS OF ERROR
Waltz alleges that the district court erred in (1) overruling his motion to suppress the traffic stop and subsequent search of his vehicle and (2) imposing an excessive sentence.
STANDARD OF REVIEW
When reviewing a district court's determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search, ultimate determinations of reasonable suspicion and probable cause are reviewed de novo. State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008). But findings of historical fact to support that determination are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial court. Id.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
ANALYSIS
Motion to Suppress.
Waltz argues that the trooper did not have probable cause to stop his vehicle. "[A] stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation has occurred." State v. Draganescu, 276 Neb. 448, 459, 755 N.W.2d 57, 73 (2008). See, also, State v. Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010) (traffic violations, no matter how minor, create probable cause to stop driver of vehicle). Pelster had probable cause to stop Waltz' vehicle for a traffic violation--following too closely. Neb. Rev. Stat. § 60-6,140(1) (Reissue 2010) states: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and such driver shall have due regard for the speed of such vehicles and the traffic upon and the condition of the roadway." Pelster testified that a safe distance for following another vehicle would be 2 seconds. Pelster testified at both suppression hearings that he clearly observed Waltz traveling only one to two car lengths, or less than half a second, behind another vehicle for one-eighth of a mile. Whether the observation time and distance was sufficient for the violation is a matter of historical fact for the trial court to determine. The trial court's finding that such evidence was sufficient for it to determine that Waltz was following too closely is not clearly wrong. Waltz' violation of § 60-1,140 for one-eighth of a mile provided Pelster with probable cause to make a traffic stop. See United States v. Guarino, 82 F. Supp. 2d 1024 (D. Neb. 1999) (following another vehicle by less than 2 seconds provided probable cause for traffic stop pursuant to § 60-6,140).
That said, we address Waltz' argument that Pelster did not have an unobstructed view of the traffic violation. It is true that at the first suppression hearing, Pelster testified that he had an unobstructed view of eastbound traffic for three-fourths of a mile. But at the second suppression hearing, Pelster noted error in his previous testimony and subsequently testified that he had an unobstructed view of eastbound traffic for only one-eighth of a mile. However, at both hearings, Pelster testified that he observed Waltz following another vehicle too closely for one-eighth of a mile. In other words, the correction did not impact the time or distance that Pelster had to, and did, observe Waltz' vehicle. Thus, we find that Pelster had probable cause to stop Waltz' vehicle. Accordingly, we affirm the district court's decision to overrule Waltz' motion to suppress regarding the traffic stop.
Although Waltz also assigns error to the search of his vehicle, he does not specifically argue such error. In order to be considered by an appellate court, the alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). Accordingly, we affirm the district court's decision to overrule Waltz' motion to suppress regarding the search of his vehicle. However, we note in passing that it has been long established that the odor of burnt marijuana alone is sufficient probable cause for a warrantless search of a motor vehicle. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).
Excessive Sentence.
Waltz argues that the district court erred in imposing an excessive sentence. Factors a judge should consider in imposing a sentence include the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Losinger, 268 Neb. 660, 686 N.W.2d 582 (2004).
Waltz was 52 years old at the time of the crime and 54 years old at the time of sentencing. Waltz claims he attended college in California between 2007 and 2010, but took a leave of absence for health-related and legal reasons. He has not yet earned a degree. He is self-employed as a paralegal. Waltz has been cited for drug-related offenses in California, Nevada, and Arizona. No dispositions were listed for many of the citations, but he did receive a $100 fine for possessing marijuana for sale. With regard to the current offense, Waltz had more than 11 pounds of marijuana in his vehicle's trunk when stopped by law enforcement. According to the presentence investigation report, Waltz is in the high risk range to reoffend.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011). And it is the minimum portion of an indeterminate sentence which measures its severity. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990). Class III felonies are punishable by 1 to 20 years' imprisonment, a $25,000 fine, or both. Waltz was sentenced to 2 to 4 years' imprisonment. His sentence is on the low end of the permissible sentencing range. Having considered the relevant factors in this case, we find that the sentence is not excessive or an abuse of discretion and that such sentence is therefore affirmed.
CONCLUSION
For the reasons stated above, we find that the district court properly overruled Waltz' motion to suppress the traffic stop and search of his vehicle. Moreover, we affirm Waltz' conviction and sentence.
AFFIRMED.