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State v. Chan

Court of Appeals of Nebraska

December 31, 2013

State of Nebraska, appellee,
v.
Hokmtng B. Chan, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: John A. Colborn, Judge.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hayes for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

Irwin, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Bishop, Judge.

Hokming B. Chan appeals from the decision of the district court for Lancaster County that, after a jury trial, convicted him of possession with intent to deliver (marijuana). We affirm.

BACKGROUND

On February 4, 2011, a Trooper Kermoade observed a Hyundai Santa Fe driven by Wade Tang following another vehicle too closely on Interstate 80, near Lincoln, Nebraska. Kermoade pulled Tang over with the intent of issuing a warning for the traffic violation. Chan was a passenger in the vehicle driven by Tang. During the stop, Kermoade became suspicious of further criminal activity, and a canine sniff search was subsequently conducted on the vehicle. As a result of the canine sniff, more than 70 pounds of marijuana were found in the vehicle.

The State filed an information charging Chan with possession with intent to deliver (marijuana), a Class III felony.

Chan filed a motion to suppress all physical and testimonial evidence obtained as a result of the "unlawful" search, seizure, interrogation, arrest, and detention which occurred on February 4, 2011. Chan's motion was overruled following a hearing.

A jury trial was held in October 2012. Kermoade testified about the traffic stop on February 4, 2011. Additionally, a DVD recording of the traffic stop was received into evidence. Kermoade advised Tang that the reason he was stopped was for following another vehicle too closely and that a written warning would be issued. Kermoade requested Tang's and Chan's licenses and asked Tang to accompany him to the cruiser while he issued the warning. While in the cruiser, Kermoade ran a records check of Tang's and Chan's Massachusetts' drivers' licenses and criminal histories. When the results of the criminal history check came back, it showed that Tang had a positive history for drug convictions. Kermoade engaged Tang in a casual conversation while issuing the written warning. Tang denied having any drug arrests. He also stated that he and Chan went to California for 3 days to "hang out" and "party." Kermoade found this suspicious because he had observed a large amount of luggage in the vehicle—more than needed for a short trip. Kermoade also spoke to Chan when Kermoade returned to the rental vehicle to obtain the vehicle registration. Tang and Chan gave conflicting information to Kermoade. Tang told Kermoade that he and Chan stayed at a friend's house in California, but Chan said they stayed in a hotel. Tang told Kermoade that they were driving back to Boston, Massachusetts, because the flights were delayed or canceled due to a snowstorm in Boston. Chan told Kermoade that they were driving back because he did not have enough "credit."

After finishing with the traffic warning, Kermoade asked Tang if he could ask him a few more questions. Tang agreed. When Kermoade asked Tang if both he and Chan were responsible for the vehicle and the luggage, Tang said "yeah." Kermoade asked Tang if there were any drugs in the vehicle, and Tang said there were not. When Kermoade asked Tang for permission to search the vehicle and the luggage, Tang responded, "I have to get back to Boston." Kermoade asked Tang who rented the vehicle, and Tang said that Chan had rented it.

Kermoade left Tang in the cruiser and approached Chan in the rental vehicle. When asked if both he and Tang were responsible for the vehicle and luggage, Chan said "uh huh." Kermoade asked Chan if there were any drugs in the vehicle, and Chan said there were not. Kermoade asked Chan, as "the renter of the vehicle" for permission to search the vehicle and the luggage. Chan said, "I guess so." When Kermoade clarified by asking, "[S]o you are saying yes?" Chan responded, "[I]f you have to." Kermoade told Chan that "it's not a have to, it's a yes or no question." At that point, Chan said he did not understand and asked to speak to Tang. Kermoade agreed to let Chan speak to Tang as long as they spoke in English. Chan spoke to Tang using some English and some non-English. After speaking to Tang at the cruiser, Chan asked to speak with Kermoade away from the cruiser. Chan told Kermoade, "I'm not going to lie, I don't know what's in there." Because Kermoade could not get a clear answer on whether or not Chan was giving permission to search, he asked Chan if he would wait for a dog to come do an exterior search of the vehicle with its nose. Chan agreed to wait for a dog. A canine sniff search was subsequently conducted on the vehicle. As a result of the canine sniff, marijuana was found in four suitcases in the vehicle.

Another trooper who inventoried the four suitcases testified that there were 18 bags of marijuana in each suitcase and that each bag of ...


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