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State v. Seckinger

Supreme Court of Nebraska

December 28, 2018

State of Nebraska, appellee,
v.
Kathy A. Seckinger, 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 for clear error, giving due weight to the inferences drawn from those facts by the trial judge. 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.

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

         3. ___: ___. Under the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, the ultimate touchstone is one of reasonableness.

         4. Constitutional Law: Search and Seizure: Warrantless Searches. Pursuant to the Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, searches and seizures must not be unreasonable, and searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions.

         5. Search and Seizure: Warrantless Searches: Motor Vehicles. Among the established exceptions to the warrant requirement is the automobile exception.

         6. Search and Seizure: Warrantless Searches: Probable Cause: Motor Vehicles. The automobile exception to the warrant requirement applies when a vehicle is readily mobile and there is probable cause to believe that contraband or evidence of a crime will be found in the vehicle.

         [301 Neb. 964] 7. Motor Vehicles: Words and Phrases. A vehicle is readily mobile whenever it is not located on private property and is capable or apparently capable of being driven on the roads or highways.

         8. Search and Seizure: Probable Cause: Words and Phrases. Probable cause to search requires that the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found.

         9. Search and Seizure: Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances, but appellate courts should avoid an excessively technical dissection of the factors supporting probable cause.

         10. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.

         11. ____: ___ . The concept of probable cause, as the name implies, is based on probabilities. It requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.

         12. Probable Cause: Police Officers and Sheriffs. To find probable cause, officers are not required to rule out all innocent explanations for suspicious facts.

         13. Probable Cause: Police Officers and Sheriffs: Motor Vehicles. Probable cause may result from any of the senses, and an officer is entitled to rely on his or her sense of smell in determining whether contraband is present in a vehicle.

         14. Search and Seizure: Probable Cause: Police Officers and Sheriffs: Motor Vehicles: Controlled Substances. Objectively, the smell of burnt marijuana tells a reasonable officer that one or more persons in a vehicle recently possessed and used the drug. The officer need not know whether the amount possessed is more than 1 ounce in order to have probable cause to suspect criminal activity in the vehicle.

         15. Search and Seizure: Warrantless Searches: Probable Cause: Police Officers and Sheriffs: Motor Vehicles. When an officer with sufficient training and experience detects the odor of marijuana emanating from a vehicle that is readily mobile, the odor alone furnishes probable cause to suspect contraband will be found in the vehicle and the vehicle may be lawfully searched under the automobile exception to the warrant requirement.

          Appeal from the District Court for Scotts Bluff County: Leo P. Dobrovolny, Judge.

          [301 Neb. 965] Darin J. Knepper, Deputy Scotts Bluff County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          STACY, J.

         NATURE OF CASE

         Kathy A. Seckinger appeals her felony conviction for possession of methamphetamine. She assigns error to the denial of a motion to suppress evidence seized during a warrantless search of her car and argues that the smell of marijuana coming from inside the car did not provide sufficient probable cause to support the search. We affirm the judgment of the district court.

         BACKGROUND

         On January 9, 2017, a Nebraska State Patrol trooper was on patrol in Gering, Nebraska, when a green car accelerated into an intersection directly in front of her. The trooper and another motorist had to brake hard to avoid an accident, and the trooper initiated a traffic stop. The stop and the events immediately preceding it were recorded on the trooper's dashboard camera.

         When the trooper approached the driver's side to make contact, she noticed the odor of burnt marijuana coming from inside the car. The driver was identified as Seckinger. The trooper confronted Seckinger about the smell and asked if there was marijuana in the car. Seckinger said no, but volunteered that she had recently smoked a cigarette. The trooper repeated that she smelled marijuana and asked Seckinger if she had been around anyone smoking marijuana; Seckinger said she had not. Finally, the trooper asked if there might have been marijuana in the car previously. Seckinger again [301 Neb. 966] responded no and added that she would not consent to a search.

         The trooper had Seckinger step out of the car and conducted a search. No marijuana was found in the car, but the trooper discovered more than 4 grams of methamphetamine. Seckinger was placed under arrest and charged with the Class IV felony of knowingly or intentionally possessing methamphetamine. She entered a plea of not guilty and moved to suppress the evidence found during the search, arguing there was no probable cause for either the traffic stop or the search of her car.

         At the hearing on the motion to suppress, the trooper and Seckinger were the only witnesses to testify. They both testified about the odor of marijuana, but their testimony differed considerably. On direct examination by her attorney, Seckinger denied there was any odor of marijuana coming from her car when it was stopped: "[Counsel:] Does the interior of your car smell like marijuana? [Seckinger:] No. Q. Did it ever smell like marijuana? A. No. Q. Why not? A. There has not been no marijuana in my vehicle at all. Q. Do you use marijuana? A. No."

         In contrast, the trooper testified she noticed the distinctive odor of marijuana emanating from the car as soon as she contacted the driver. The trooper testified she received academy training on detecting the odor of marijuana and also testified about her experience detecting the smell of burnt and raw marijuana during prior traffic stops. The trooper explained that Seckinger's car was stopped because it pulled across four lanes of traffic and nearly caused an accident, and based on the trooper's experience, drivers who "do that kind of thing" are sometimes impaired by alcohol or drugs. Consequently, when the trooper smelled marijuana coming from inside the car, she decided there was probable cause to search it.

         After considering the evidence, the district court overruled Seckinger's motion to suppress. The court found that both the [301 Neb. 967] traffic stop and the subsequent search of the car were supported by probable cause. In finding probable cause to search the car, the court relied on our opinion in State v. Watts[1] for the proposition that the smell of marijuana, standing alone, has long been held to furnish probable cause for a warrantless search of a motor vehicle where there is sufficient foundation as to the expertise of the officer in recognizing the smell. The court found the trooper had ...


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