State v. Perry
292 Neb. 708
| Neb. | 2016Background
- On Sept. 5, 2012, Omaha police stopped a car for a turn-signal violation and a broken taillight; Detron Perry was the driver and Devaughn Perry the front passenger.
- Officer Brown smelled a faint odor of burnt marijuana when Perry rolled down his window; officers observed the passenger furtively holding a twisted plastic baggie.
- Officer Sundermeier opened the door, grabbed the passenger’s hand, and found a baggie containing a white rocklike substance; the passenger was arrested.
- Brown then asked Perry to exit and conducted a search of Perry’s person before formal arrest, finding suspected crack and later pills (confirmed as benzylpiperazine/“ecstasy”).
- The vehicle search yielded a marijuana cigarette in the console and a firearm under the passenger seat; the suspected crack was later identified as fake (“gank”).
- Perry moved to suppress the evidence from the search; the district court denied the motion, convicted Perry after a stipulated bench trial, and sentenced him to 4 years probation.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Perry) | Held |
|---|---|---|---|
| Whether search of Perry’s person was valid as incident to an arrest | Probable cause existed to arrest Perry for drug possession based on marijuana odor, passenger’s furtive movement, and discovery of suspected crack; thus search incident to arrest was valid | Search violated Fourth Amendment because officers lacked probable cause particularized to Perry; search occurred before formal arrest so invalid | Held: Officers had probable cause particularized to Perry under Maryland v. Pringle framework and the search (contemporaneous with arrest) was valid as incident to arrest |
| Whether mere odor of marijuana (now an infraction for small amounts) can supply probable cause for arrest/search | Odor of burnt marijuana, combined with other factors (passenger’s furtive behavior and discovered suspected cocaine), supports probable cause to arrest occupants for drug possession | Odor alone insufficient given statutory change making small-quantity possession an infraction; cannot justify arrest/search | Held: Odor of burnt marijuana remains probative; combined with other facts it gave reasonable officer probable cause to infer possession and justify arrest/search |
| Whether district court’s factual finding that Perry was uncooperative and gave a false name required reversal | Court relied on cooperative status in assessing probable cause | Perry argued court erred—record showed passenger, not Perry, was uncooperative and gave a false name | Held: Trial court clearly erred on that factual point, but error was harmless—did not affect ultimate ruling affirming denial of suppression |
Key Cases Cited
- Maryland v. Pringle, 540 U.S. 366 (probable-cause standard and arrest of vehicle occupants where contraband is found in car)
- Ybarra v. Illinois, 444 U.S. 85 (probable cause must be particularized to the person searched)
- City of Beatrice v. Meints, 289 Neb. 558 (clarifies that probable cause alone is not a free-standing exception to the warrant requirement)
- State v. Voichahoske, 271 Neb. 64 (applies Pringle framework to vehicle-occupant searches and arrests)