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. But whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial
Investigative Stops: Motor Vehicles: Police Officers and
Sheriffs: Probable Cause. An officer's stop of a
vehicle is objectively reasonable when the officer has
probable cause to believe that a traffic violation has
Search and Seizure: Warrantless Searches: Motor
Vehicles. 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, including 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.
Search and Seizure: Warrantless Searches: Probable Cause:
Motor Vehicles: Police Officers and Sheriffs: Controlled
Substances. Officers with sufficient training and
experience who detect the odor of marijuana emanating from a
vehicle have probable cause on that basis alone to search the
vehicle under the automobile exception to the warrant
Neb.App. 726] 6. Statutes: Appeal
and Error. Statutory interpretation presents a
question of law, which an appellate court reviews
independently of the lower court's determination.
Statutes: Legislature: Intent. The fundamental
objective of statutory interpretation is to ascertain and
carry out the Legislature's intent.
Statutes. Statutory language is to be given its
plain and ordinary meaning.
Statutes: Legislature: Intent. Only if a statute is
ambiguous or if the words of a particular clause, taken
literally, would plainly contradict other clauses of the same
statute, lead to some manifest absurdity, to some
consequences which a court sees plainly could not have been
intended, or to a result manifestly against the general term,
scope, and purpose of the law, may the court apply the rules
of construction to ascertain the meaning and intent of the
Statutes. A statute is ambiguous if it is
susceptible of more than one reasonable interpretation,
meaning that a court could reasonably interpret the statute
Statutes: Legislature: Intent. An appellate court
can examine an act's legislative history if a statute is
ambiguous or requires interpretation.
Jury Instructions: Appeal and Error. Whether jury
instructions are correct is a question of law, which an
appellate court resolves independently of the lower
Jury Instructions: Proof: Appeal and Error. In an
appeal based on a claim of an erroneous jury instruction, the
appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected a
substantial right of the appellant.
Jury Instructions: Appeal and Error. In an appeal
based on a claim of an erroneous jury instruction, all the
jury instructions must be read together, and if, taken as a
whole, they correctly state the law, are not misleading, and
adequately cover the issues supported by the pleadings and
the evidence, there is no prejudicial error necessitating
Jury Instructions: Proof: Appeal and Error. To
establish reversible error from a court's refusal to give
a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of
the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the
court's refusal to give the tendered instruction.
Jury Instructions. Whenever an applicable
instruction may be taken from the Nebraska Jury Instructions,
that instruction is the one which should usually be given to
the jury in a criminal case.
Neb.App. 727] Appeal from the District Court for Douglas
County: Duane C. Dougherty, Judge. Affirmed.
C. Riley, Douglas County Public Defender, and Jessica C. West
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Riedmann, Bishop, and Arterburn, Judges.
a jury trial, Daejerron L. Valentine was convicted of
possession of a deadly weapon by a prohibited person and
possession of marijuana. Valentine appeals from his
convictions. On appeal, he challenges the district
court's failure to suppress evidence seized during a
traffic stop of his vehicle and the district court's
interpretation of Neb. Rev. Stat. § 28-1206 (Supp.
2017), which delineates the elements of the offense of
possession of a deadly weapon by a prohibited person.
Valentine also argues that the district court erred in giving
certain jury instructions and refusing his proposed jury
instructions. Following our review of the record, we affirm
25, 2018, the State filed an amended information charging
Valentine with one count of possession with intent to
distribute marijuana, in violation of Neb. Rev. Stat. §
28-416 (Cum. Supp. 2018), and one count of possession of a
deadly weapon (firearm) by a prohibited person, second
offense, in violation of § 28-1206. The charges against
Valentine stem from a traffic stop of his vehicle which
occurred on October 12, 2017.
evening of October 12, 2017, Patrick Dempsey, an Omaha Police
Department detective assigned to the "gang [27 Neb.App.
728] suppression unit," was on patrol in the northeast
part of Omaha, Nebraska, in a marked police cruiser with his
partner. At approximately 10:30 p.m., Dempsey observed the
passenger side of a white vehicle driving in front of him
near the intersection of 23d and Sprague Streets. Dempsey
believed that the tint on the windows of the vehicle was too
dark and, thus, constituted a traffic violation. During
Dempsey's trial testimony, he explained that the tint on
the rear side windows of a vehicle is permitted to be darker
than the tint on the front side windows of a vehicle. As
such, he testified that if the tint on the front side windows
matches the tint on the back side windows, the tint on the
front side windows is probably darker than is permitted.
Dempsey observed that the tint on the windows of the vehicle
was all the same color and appeared to Dempsey to be darker
than is permitted. In addition, Dempsey could not observe
anyone in the vehicle because of the dark color of the tint.
Dempsey explained that if a vehicle has the correct tint in
the front, a person should be able to observe the occupants
inside the vehicle through the front side windows.
of Dempsey's belief that the tint on the windows of the
vehicle was darker than what is permitted, he initiated a
traffic stop. At the point that Dempsey was approaching the
vehicle on the driver's side, he was able to observe that
there was only one occupant. That occupant was later
identified as Valentine. Valentine rolled down the window on
the driver's side of the vehicle and spoke with Dempsey.
While Dempsey was speaking with Valentine, he detected the
strong odor of burnt marijuana coming from the vehicle. As a
result of Dempsey's observation, he asked Valentine to
step out of the vehicle. Dempsey also asked Valentine if he
had been smoking marijuana in the vehicle. Valentine denied
smoking marijuana himself, but did admit that he had a friend
who had smoked marijuana in the vehicle.
conducted a search of Valentine's person, but did not
locate any marijuana. Dempsey then conducted a search [27
Neb.App. 729] of the vehicle. In the center console between
the front seats. Dempsey located two baggies of a substance
which subsequent testing revealed was marijuana. One baggie
contained 18.8 grams of marijuana and one baggie contained
9.196 grams of marijuana. As such, the total weight of
marijuana found in the baggies was 27.996 grams, or just
under 1 ounce. Also in the center console, Dempsey located
"a working digital scale" and two empty baggies
similar to those which contained the marijuana.
Dempsey searched the front passenger door of the vehicle, he
located a gun hidden beneath the control panel for the
door's window and locking mechanism. When he searched the
trunk of the vehicle, Dempsey located $240 in cash hidden in
a tennis shoe and an opened box of baggies which were similar
to those which contained the marijuana. After conducting the
search of the vehicle, Dempsey tested the window tint and
discovered that the front side windows were darker than is
permitted by law. Ultimately, Valentine was placed under
arrest and transported to police headquarters.
2018, trial was held. During the trial, Dempsey testified
regarding the traffic stop and subsequent search of
Valentine's vehicle which had occurred on October 12,
2017. In conjunction with Dempsey's testimony, the State
offered into evidence the video obtained from Dempsey's
"body-worn camera" which depicted the traffic stop
and the subsequent search. The video depicts Dempsey's
initial observations of Valentine's vehicle prior to the
traffic stop, his interactions with Valentine, and his
detailed search of Valentine's vehicle. In particular,
the video portrays Dempsey's discovery of the gun which
was hidden in the front passenger door. After Dempsey opens
the passenger door, he searches a compartment at the base of
the door, but finds nothing of evidentiary value. He then
pulls, without much force, on the control panel for the
door's window and locking mechanism, and the control
panel easily comes off of the door to reveal a
"void" in the vehicle's door. Dempsey testified
that "[t]here was nothing attaching [27 Neb.App. 730]
[the control panel] other than the cord." Inside the
void, a gun is readily visible.
Dempsey's trial testimony, he opines that given
everything that he found in Valentine's vehicle,
including the marijuana, the gun, the digital scale, the
cash, and the baggies, that Valentine intended to distribute
the marijuana. Dempsey noted that he did not find any items
in the vehicle which would indicate that Valentine, himself,
had smoked or was planning on smoking the marijuana.
State presented evidence at trial to prove that the gun found
in Valentine's vehicle was loaded and in working order.
DNA testing conducted on the gun revealed that Valentine
could not be excluded as the major contributor to the DNA
found on the gun. The probability of an individual not
related to Valentine matching the DNA profile from the gun is
approximately 1 in 26.8 septillion. The parties stipulated
that Valentine has previously been convicted of a felony.
close of the evidence, the jury found Valentine guilty of
possession of marijuana, less than 1 ounce, a lesser-included
offense of possession of marijuana with the intent to
distribute, as the State charged in its amended information.
The jury also found Valentine guilty of possession of a
deadly weapon by a prohibited person. The district court
subsequently sentenced Valentine to a $300 fine on his
conviction for possession of marijuana. The court found that
Valentine's conviction for possession of a deadly weapon
by a prohibited person was a second offense and sentenced him
to 20 to 20 years' imprisonment plus 1 day on that
appeals from his convictions.
ASSIGNMENTS OF ERROR
appeal, Valentine assigns that the district court erred in
(1) overruling his motion to suppress evidence seized as a
result of the traffic stop because there was not probable
cause to stop his vehicle and because the search of his