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State v. Dalland

Court of Appeals of Nebraska

June 25, 2013

State of Nebraska, appellee,
v.
Roger L. Dalland, appellant.

1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. 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. Regarding historical facts, an appellate court reviews the trial court's findings of fact for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that it reviews independently of the trial court's determination.

2. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures.

3. Motor Vehicles: Warrantless Searches: Probable Cause. A warrantless search of a vehicle is permissible upon probable cause that the automobile contains contraband.

4. Police Officers and Sheriffs: Probable Cause. A law enforcement officer has probable cause to search when it is objectively reasonable.

5. Search and Seizure. A search is objectively reasonable when known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that he will find contraband or evidence of a crime.

[20 Neb.App. 906] 6. Probable Cause. Probable cause depends on the totality of the circumstances.

7. Police Officers and Sheriffs: Probable Cause. If contraband is seen or smelled, the officer is not required to close his eyes or nostrils, walk away, and leave the contraband where he sees or smells it.

8. Police Officers and Sheriffs: Motor Vehicles: Warrantless Searches: Probable Cause. While an officer need not walk away from contraband where he sees or smells it, the scope of a warrantless search of an automobile is limited to the places where there is probable cause to believe particular contraband might be found.

9. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Probable Cause. The Fourth Amendment's requirement that an officer have probable cause before conducting a warrantless search does not allow police officers to make guesses about where evidence might be located.

10. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

Appeal from the District Court for Hamilton County: Michael J. Owens, Judge.

Michael P. Kneale, of Bradley, Elsbernd, Andersen, Kneale & Mues Jankovitz, P.C., for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

Sievers, Pirtle, and Riedmann, Judges.

RlEDMANN, Judge.

INTRODUCTION

This appeal raises one primary issue: Does the odor of marijuana emanating from a person inside a building give a police officer probable cause to search that person's vehicle once he enters it? We find it does not. Accordingly, we reverse Roger L. Dalland's conviction ...


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