State v. Seckinger
920 N.W.2d 842
Neb.2018Background
- On Jan. 9, 2017, a Nebraska State Patrol trooper stopped Kathy A. Seckinger after her car accelerated into an intersection and nearly caused an accident.
- When the trooper approached, she testified she smelled the odor of burnt marijuana emanating from inside Seckinger’s vehicle; Seckinger denied any marijuana and refused consent to search.
- The trooper, who had academy training and prior experience detecting marijuana odor, conducted a warrantless search of the car; no marijuana was found but more than 4 grams of methamphetamine were discovered.
- Seckinger was charged with felony possession of methamphetamine, moved to suppress the evidence arguing lack of probable cause for the search, and the district court denied the motion.
- Following a stipulated-facts bench trial, Seckinger was convicted and sentenced; she appealed solely challenging whether the odor of marijuana, standing alone, still supplies probable cause to search a vehicle.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether odor of marijuana alone supplies probable cause to search a readily mobile vehicle | Seckinger: odor alone no longer indicates criminal activity in light of legalization elsewhere; thus not probable cause | State: marijuana remains contraband under Nebraska and federal law; trained-officer detection of odor supplies probable cause under the automobile exception | Court: Odor of marijuana detected by a trained, experienced officer from a readily mobile vehicle still furnishes probable cause to search the vehicle |
Key Cases Cited
- State v. Benson, 198 Neb. 14, 251 N.W.2d 659 (Neb. 1977) (smell of marijuana alone can supply probable cause to search a vehicle given officer expertise)
- State v. Daly, 202 Neb. 217, 274 N.W.2d 557 (Neb. 1979) (odor of marijuana from vehicle sufficient for warrantless search; officer training and experience relevant)
- State v. Ruzicka, 202 Neb. 257, 274 N.W.2d 873 (Neb. 1979) (no distinction between burned and unburned marijuana odor; odor supports searching entire vehicle)
- State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (Neb. 1981) (reiterating that odor of marijuana, with officer foundation, furnishes probable cause to search)
- State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (Neb. 2016) (rejected argument that reduced penalties for small amounts of marijuana undermine probable cause from odor)
- California v. Carney, 471 U.S. 386 (U.S. 1985) (recognition of automobile exception to the warrant requirement)