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.
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.
___. Under the Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution, the
ultimate touchstone is one of reasonableness.
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
Search and Seizure: Warrantless
Searches: Motor Vehicles. Among the established
exceptions to the warrant requirement is the automobile
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.
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.
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.
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.
Probable Cause: Words and
Phrases. Probable cause is a flexible, commonsense
standard that depends on the totality of the circumstances.
____: ___ . 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.
Probable Cause: Police Officers and
Sheriffs. To find probable cause, officers are not
required to rule out all innocent explanations for suspicious
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.
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.
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
from the District Court for Scotts Bluff County: Leo P.
Neb. 965] Darin J. Knepper, Deputy Scotts Bluff County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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
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
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
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
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."
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.
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 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 ...