State v. Dalland , 20 Neb. Ct. App. 905 ( 2013 )

Decisions of the Nebraska Court of Appeals
STATE v. DALLAND 905
Cite as 20 Neb. Ct. App. 905
relevant evidence. The referee erred in excluding evidence
of expenses, and the district court abused its discretion to the
extent it adopted the referee’s findings.
V. CONCLUSION
We conclude that the referee who conducted the hearing in
this case erred in granting Vanessa’s motion for directed ver-
dict, because there was clearly sufficient evidence adduced to
prevent judgment as a matter of law. We also conclude that the
referee erred in excluding clearly relevant evidence. As such,
the district court abused its discretion in adopting the referee’s
recommendations and dismissing Benjamin’s application for
modification on the basis of a motion for directed verdict. We
reverse, and remand for further proceedings.
R eversed and remanded for
further proceedings.
State of Nebraska, appellee, v.
Roger L. Dalland, appellant.
___ N.W.2d ___
Filed June 25, 2013. No. A-12-615.
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.
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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. Reversed and remanded for a
new trial.
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.
Riedmann, Judge.
INTRODUCTION
This appeal raises one primary issue: Does the odor of mari-
juana 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 for possession of methamphetamine
and remand the cause for a new trial.
BACKGROUND
In May 2011, Dalland received a call from Deputy Aaron
Smith asking him to come to the law enforcement center in
Aurora, Nebraska, for an interview to discuss “irrigation pipe
thefts.” While Dalland was at the law enforcement center,
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Cite as 20 Neb. Ct. App. 905
Cpl. Chad Mertz walked by Dalland and “immediately could
smell an overwhelming odor of burnt marijuana.” By the time
Mertz was ready to make contact with him, however, Dalland
had left the law enforcement center and was seated outside in
his vehicle. Mertz approached the vehicle, and upon request,
Dalland got out and Mertz performed a pat-down search.
Finding nothing, Mertz then searched Dalland’s vehicle. While
searching the vehicle, Mertz found needles that contained
trace amounts of methamphetamine.
A complaint filed in the Hamilton County Court alleged that
Dalland had possessed a controlled substance. He was bound
over to district court, and an indictment charging him with
possession of a controlled substance was filed. In the course of
the proceedings, Dalland filed a motion to suppress to exclude
any evidence seized when Mertz searched his vehicle. In his
motion, Dalland argued that Mertz violated his constitutional
rights by illegally searching his vehicle.
At the hearing on the motion to suppress, the following tes-
timony was adduced:
Dalland was with his girlfriend, Jennifer Dahl, in Grand
Island, Nebraska, when he received a telephone call from
Smith requesting him to come in for an interview. After receiv-
ing the call, Dalland drove Dahl and himself to Aurora in his
vehicle. He parked in the public stalls outside the law enforce-
ment center and entered the building.
Smith interviewed Dalland and Dahl separately. He inter-
viewed Dalland first, for a little over an hour. While Smith
interviewed Dahl, Dalland sat in the lobby, occasionally retreat-
ing to his vehicle to smoke a cigarette.
During one of the time periods when Dalland was seated
in the lobby, Mertz walked past him. Mertz noticed the odor
of “burnt marijuana” emanating from the location where
Dalland was sitting. There was nobody else in the lobby at
the time.
After noting the odor, Mertz sought out Smith to determine
whether he still needed Dalland for his investigation. Learning
that Dalland’s interview was finished, Mertz intended to make
contact with Dalland, but by this time, Dalland had left the
law enforcement center and was sitting in his vehicle with
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the window rolled down. Mertz followed Dahl out of the law
enforcement center and toward the vehicle.
As Dahl got in the passenger side of the vehicle, Mertz
approached Dalland from the driver’s side, informed him that
he could smell marijuana, and asked him if he had smoked any.
Dalland denied smoking marijuana, but advised he had been
around people who had. Mertz then asked Dalland to exit the
vehicle and informed him he was going to search him. About
this time, Dahl exited the vehicle and Mertz directed her to sit
on the sidewalk. She sat down about 7 feet away.
After performing the pat-down search, Mertz searched
Dalland’s vehicle and found needles. He asked Dalland if the
needles in the vehicle were used for methamphetamine, and
Dalland said they were. The needles were then sent to the
Nebraska State Patrol crime laboratory, where trace amounts of
methamphetamine were found.
The parties disputed the events directly preceding Mertz’
search of Dalland’s vehicle. In his affidavit of probable cause
for a warrantless arrest, Mertz reported in part:
Mertz made contact with Dalland. Dalland stated that he
did not smoke marijuana but he was with people who
were smoking it earlier . . . . Mertz asked Dalland if he
had anything in his vehicle or on his person. Dalland
stated no. Mertz searched Dalland and the vehicle he was
sitting in. Mertz located a bag of syringes which were
hidden inside of a glove.
At the hearing on the motion to suppress, Mertz testified
that Dalland told him there were needles in his vehicle before
Mertz searched it. He said that he informed Dalland he was
going to search him and asked him if there was anything
located on his person or in his vehicle that could “stick” or
“poke” him. According to Mertz, Dalland volunteered that
he had needles in his vehicle that were used for methamphet-
amine. Mertz explained that he searched the vehicle after
Dalland made these statements. On cross-examination, defense
counsel impeached Mertz with his prior inconsistent affida-
vit. Neither defense counsel nor the State on redirect asked
Mertz to explain the inconsistency between his testimony
and affidavit.
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Cite as 20 Neb. Ct. App. 905
Dahl testified, however, that after Mertz began searching
the vehicle, he asked Dalland if he was going to find any
drugs or paraphernalia in the vehicle and Dalland said there
were needles inside. Dalland testified that he initially denied
there were drugs or paraphernalia in the vehicle, but that after
Mertz began searching, he informed Mertz of needles behind
the seat.
On cross-examination, Mertz admitted that he did not have
a search warrant or permission to search. He also stated that
nothing was in plain view and that it was not a traffic stop, a
search pursuant to an emergency situation, an inventory search,
or a search pursuant to an arrest.
The trial court denied Dalland’s motion to suppress. In
its order, the court stated that the legal issue before it was
whether or not an officer has probable cause to search a motor
vehicle after detecting the odor of marijuana emanating from
a person occupying the vehicle. Relying on State v. Watts, 209
Neb. 371, 307 N.W.2d 816 (1981), the trial court determined
that Mertz’ detection of the odor of marijuana provided him
with probable cause to search Dalland’s vehicle. The trial court
did not rely on Dalland’s statement that there were needles in
the vehicle as a basis for its finding of probable cause, but
it did mention the statement as part of its factual introduc-
tion. The court wrote that after Mertz advised Dalland that he
intended to search the vehicle, “[Dalland] indicated to Mertz
that there might be used needles in the vehicle . . . . Mertz
then conducted a search and found controlled substances in
the vehicle.”
At trial, the parties introduced exhibits 1 through 8. Exhibit
1 contains the stipulated testimony that individual witnesses
would offer. The stipulated testimony includes the testimony
from the hearing on the motion to suppress and testimony
from a forensic scientist of the Nebraska State Patrol crime
laboratory identifying the substance found on the needles in
Dalland’s vehicle as methamphetamine. Exhibit D of exhibit 1
is a report from the crime laboratory stating that the syringes
that were tested contained methamphetamine. Exhibit 2 is a
stipulation to chain of custody, and exhibits 3 through 8 are
physical evidence.
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Defense counsel objected to the exhibits on the grounds
outlined in his motion to suppress, and the trial court took the
matter under advisement before admitting the exhibits.
The trial court found Dalland guilty of possession of a
controlled substance, a Class IV felony, and sentenced him to
serve 270 days in the Hamilton County jail.
This timely appeal followed.
ASSIGNMENT OF ERROR
On appeal, Dalland argues that the trial court erred by
receiving evidence that was illegally seized by law enforce-
ment in violation of his rights guaranteed by the U.S. and
Nebraska Constitutions.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press 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 ques-
tion of law that it reviews independently of the trial court’s
determination. State v. Garcia, 281 Neb. 1, 792 N.W.2d
882 (2011).
ANALYSIS
Dalland argues that the trial court erred in admitting into evi-
dence the needles that Mertz seized from his vehicle, because
they were seized in violation of his Fourth Amendment rights.
The State argues that Mertz’ search was an exception to the
Fourth Amendment protection against unreasonable searches
and seizures, because Mertz had probable cause based on
smelling the odor of marijuana and Dalland’s admission that
he had needles used for methamphetamine in his vehicle. The
State concedes in its brief that the district court found that
the odor of marijuana alone provided probable cause for the
search, without reliance upon Dalland’s alleged admission that
there were needles in the vehicle.
[2,3] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
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Cite as 20 Neb. Ct. App. 905
against unreasonable searches and seizures. State v. Smith, 279
Neb. 918, 782 N.W.2d 913 (2010). A warrantless search of a
vehicle is permissible upon probable cause that the automobile
contains contraband. See California v. Carney, 471 U.S. 386,
105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). See, also, State v.
Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
[4-6] A law enforcement officer has probable cause to
search when it is objectively reasonable. See State v. Craven,
253 Neb. 601, 571 N.W.2d 612 (1997). A search is objec-
tively 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.
See id. Probable cause depends on the totality of the circum-
stances. See State v. Voichahoske, 271 Neb. 64, 709 N.W.2d
659 (2006).
In this case, Dalland concedes that Mertz’ initial pat-down
search was permissible, but he argues that Mertz did not have
probable cause to expand the search to encompass Dalland’s
vehicle. Therefore, we limit our analysis to whether Mertz had
probable cause to search Dalland’s vehicle.
[7] The trial court reasoned that the odor of marijuana pro-
vided Mertz with sufficient probable cause to search Dalland’s
vehicle, relying upon State v. Watts, 209 Neb. 371, 307 N.W.2d
816 (1981). In Watts, the Nebraska Supreme Court stated:
“We have constantly held that the smell of marijuana, stand-
ing alone, is sufficient to furnish probable cause for the war-
rantless search of a motor vehicle where, as here, there was
sufficient foundation as to the expertise of the officer.” 209
Neb. at 374, 307 N.W.2d at 819. However, Watts and the cases
upon which it relies involved traffic stops and situations in
which the officer smelled the marijuana emanating from the
vehicle. See, e.g., State v. Daly, 202 Neb. 217, 218-19, 274
N.W.2d 557, 558 (1979) (stating that “[w]hen the rear door of
the pickup was opened, [the officer] could smell a strong odor
of marijuana”); State v. Wood, 195 Neb. 353, 356, 238 N.W.2d
226, 228 (1976) (stating that “after being invited to inspect
the camper, the officer detected a strong odor of marijuana”).
The court in State v. Ruzick, 202 Neb. 257, 258, 274 N.W.2d
873, 875 (1979), recognized this limitation when it stated: “In
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a number of cases we have held that the odor of marijuana
coming from a vehicle is sufficient to furnish probable cause
for a search of the vehicle.” And in State v. Romonto, 190 Neb.
825, 830, 212 N.W.2d 641, 644 (1973), the court explained
why a warrantless search of a vehicle is permissible when it
said: “An officer is entitled to rely on his senses in determin-
ing whether contraband is present in a vehicle. 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] 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 prob-
able cause to believe particular contraband might be found.
See U.S. v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed.
2d 572 (1983). In U.S. v. Ross, 456 U.S. at 824, the U.S.
Supreme Court went to great lengths to illustrate that different
factual scenarios give rise to probable cause to search different
areas, explaining:
Just as probable cause to believe that a stolen lawnmower
may be found in a garage will not support a warrant to
search an upstairs bedroom, probable cause to believe that
undocumented aliens are being transported in a van will
not justify a warrantless search of a suitcase. Probable
cause to believe that a container placed in the trunk of
a taxi contains contraband or evidence does not justify a
search of the entire cab.
The factual scenario in the case at bar differs substantially
from the line of cases involving an officer’s search of a vehicle
pursuant to a traffic stop. While State v. Watts, 209 Neb. 371,
307 N.W.2d 816 (1981), involved a scenario where a police
officer smelled the odor of marijuana emanating from the
defendant’s vehicle, in this case, Mertz smelled the odor of
marijuana emanating from Dalland’s person while Dalland was
in a location separate from that of his vehicle. In State v. Watts,
supra, the police officer could have reasonably believed that
he would find evidence of criminal activity in the defendant’s
vehicle, because he smelled the odor of an illegal substance
emanating from the interior of the vehicle.
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In this case, however, there was no reason for Mertz to
believe that evidence of criminal activity would be located in
Dalland’s vehicle as opposed to any other location. In order
to have probable cause to search the vehicle, Mertz needed
objective information indicating a fair probability that con-
traband or evidence of crime would be found. See State v.
Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Accordingly,
we must examine the facts from the perspective of Mertz at
the time he made the search. The record indicates that Mertz
entered the law enforcement center and observed the odor of
marijuana emanating from Dalland’s person. Mertz then con-
sulted Smith to determine that he had completed his interview
with Dalland. At this point, Dalland had been sitting in the
law enforcement center for at least an hour. Mertz knew that
Dalland had been interviewed and also observed Dahl leave
her interview. Based on the odor emanating from Dalland’s
person, Mertz searched him and found no evidence of criminal
activity. Dalland repeatedly denied having smoked any mari-
juana. At this point, Mertz then expanded his search to encom-
pass Dalland’s vehicle.
In the line of cases involving traffic stops, the arresting
officer approaches individuals seated in a vehicle. Smelling
marijuana, the officer reasonably suspects that he might find
evidence of criminal activity in the vehicle, which is the area
from which the marijuana odor emanated. The officer then
has probable cause to search the area from which the odor is
emanating because an odor indicates a probability that one
might find evidence of criminal activity in the location of
the odor.
[9] In the case at bar, Mertz searched Dalland’s person,
which was the location from which the odor emanated. After
finding no evidence of criminal activity, he then proceeded to
search a second location, Dalland’s vehicle. He did not state
that the vehicle emanated an odor of marijuana, but, rather,
that the odor emanated from Dalland himself. These facts
did not provide Mertz probable cause to search Dalland’s
vehicle. Although Dalland’s odor may have reasonably led
Mertz to believe that Dalland was around marijuana at some
point during the day, the record indicates no reason to suspect
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evidence of marijuana would be located in Dalland’s vehicle.
Given that the odor remained on Dalland the entire time he
was at the law enforcement center, we can ascertain that the
odor lingered on his person for a substantial period of time.
Mertz, as a “certified drug recognition expert,” would likely
have knowledge of marijuana’s lingering odor. The lasting
nature of Dalland’s odor, combined with the lack of evidence
in Dalland’s immediate vicinity, raised the question of where
Dalland encountered marijuana and acquired the odor. While
Dalland may have encountered it in his vehicle, he may
have encountered it any number of ways and in any number
of locations throughout the day. The Fourth Amendment’s
requirement that an officer have probable cause before con-
ducting a warrantless search does not allow police officers
to make guesses about where evidence might be located. See
State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). To the
contrary, it requires that the facts indicate a fair probability
that the officer will find contraband in the particular location
he seeks to search. See id. In this case, Dalland’s odor did not
give rise to a fair probability that contraband would be found
in Dalland’s vehicle.
The State argues, however, that Mertz had additional jus-
tification to search Dalland’s vehicle because Dalland stated
that needles were located within it before the search occurred.
Although the trial court did note that Dalland made this state-
ment before Mertz searched his vehicle, the only evidence
supporting this finding of fact was Mertz’ trial testimony. Both
Dalland and Dahl contradicted Mertz’ testimony, but more
important, Mertz’ testimony conflicted with his prior affidavit
of probable cause. In his affidavit of probable cause, Mertz
said that he asked Dalland if he would find anything in the
vehicle and that Dalland said he would not. Mertz did not pro-
vide an explanation for the difference between his testimony at
trial and the previous statement in his sworn affidavit.
The record before our court indicates that Mertz changed
his testimony to meet the exigencies of trial without a reason-
able explanation. Accordingly, we must disregard his incon-
sistent trial testimony as a matter of law and assume that
Dalland did not state needles were present in his vehicle prior
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to Mertz’ initiating the search of the vehicle. See, State v.
Robertson, 223 Neb. 825, 394 N.W.2d 635 (1986); Momsen v.
Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208
(1981). See, also, Clark v. Smith, 181 Neb. 461, 149 N.W.2d
425 (1967); Sacca v. Marshall, 180 Neb. 855, 146 N.W.2d
375 (1966); Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d
65 (1959).
Because we find that the trial court improperly admitted
evidence that was seized in violation of Dalland’s rights, we
reverse the decision of the trial court and remand the cause for
proceedings consistent with this opinion.
[10] Having determined that Mertz did not have probable
cause to search the vehicle, we find that the court erred in
denying the motion to suppress. This error is reversible error;
therefore, we must determine whether the totality of the evi-
dence admitted by the district court was sufficient to sustain
Dalland’s conviction. If it was not, then the concepts of double
jeopardy would not allow a remand for a new trial. See State
v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011). 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.
State v. Borst, supra.
The evidence presented, including the needles seized and the
subsequent test results thereon, was sufficient to sustain a con-
viction for possession of methamphetamine. The cause should
therefore be remanded for a new trial.
CONCLUSION
Mertz’ detection of the odor of marijuana emanating from
Dalland while he was seated inside the law enforcement center
did not give rise to probable cause to search Dalland’s vehicle.
The evidence seized from the vehicle was therefore seized in
violation of Dalland’s Fourth Amendment rights. Because we
find that the trial court improperly admitted evidence seized
in violation of Dalland’s Fourth Amendment rights, and the
evidence was otherwise sufficient to sustain his conviction, we
reverse the conviction and remand the cause for a new trial.
R eversed and remanded for a new trial.