*1 Ernеst, 188 Neb. judicial discretion. 2d 335. N. 648, 198 W. Timothy Ray McElroy, N. W. 1972. No. Caporale, Lindquist, Brodkey & Nestle,
Shrout, Attorney Meyer, General, A. Calvin Clarence H. appellee. Robinson, for E. Heard Spencer, Boslaugh, White, Smith, C. J., JJ. Newton,
McCown, Smith, J. convicted appeal (1) probable cause сontends (2) defendant, existed for the arrest sei- warrantless zure a warrantless search subjected ex- evidence to the the station house (3) clusionary proof of rules, conviction *2 a a for titled defendant to a new trial. police officer, a 1971, David
On October 7, Jansa, through a in observed the van binoculars driver light parking space pipe. of a drive-in a flame marijuana 4 tо inches It indicated hashish arose. experience training such Jansa, in investi- whose gations wide. were proceeded
Ten minutеs after observation van stopped opera- point Defendant, where Jansa it. a stepped out back to meet and walked Jansa. While tor, operator’s producing Jansa license, defendant was his marjuana “suspected” of 3 smelled аt a feet distance weedy men then walked which emitted a odor. The two ostensibly to the Jansa to examine the vehicle vаn looking registration. Jansa, over defendant’^ emanating marijuana shoulder, odor that was smelled smoking passenger was from van. whо He saw bag pipe cigarette, floor, between on pipe passenger’s seats. The the driver’s and cellophane was outside inside the bowl cover of pipe smoldering. Having and looked inside seized regis- both vehicle bowl, arrested men. Jansa tration In scene a checked. a search marijuana bag thought in contain found small pocket of defendant. overсoat police on orders defendant disrobed At removed defendant’s In search Jansa the item: A folded Jansa. hy newspaрer, opaque 2 this wallet hy- quantity of cocaine a minute inches, enclosed that weighing together contents drocloride, container and possessed had said 5 got long guy “a has for a time 378 living.”
make a The substance was consumed in the chemical tests for cocaine. ' An may incident precede search an arrest and part justification. serve as of its Sibron New (1968). U. S. 40, 88 S. 2d Ct. L. In Ed. evaluation of the reasonableness of search or seizure imperative it warrant that the facts be judged against objective standard. Would the facts available to the officer at the moment the search or the seizure warrant a man of reasonable caution appropriate? Terry belief that the action taken was v. Ohio, 392 U. 1,S. 88 S. Ct. L. Ed. 2d 889 (1968).
When an officer makes an arrest, is reasоnable for person him to search the arrested and seize evi person prevent dence the arrestee’s in order to its justification concealment or destruction. That absent where a search is remote from the arrest. See Chimel v. California, 395 U. S. 89 S. Ct. L. Ed. may Wherever an individual harbor *3 expectation privacy ought reasonable of to be free governmental Terry unreasonable intrusion. supra. validity Ohio, The constitutional of a warrant- only less search can be decided in the concrete fаctual context of the individual case. New Sibron v. supra.
Probable cause for the existed conduct of Jansa scene, аnd the search and seizure at the were not remote. The latter furthermore served protect dangerous defendant othеrs from use of and drugs, lysergic diethylamide, such as acid at the sta- correctly tion. The district court denied defendant exclusionary of the benefit rules. gov- Act, Uniform
The
Controlled Substances
which
expressly
erned,
not
define the offense of
does
un-
quantity
of coсaine
of
terms
with
lawful
28-4,125(3),
§
Supp.,
potential for
R. S.
abuse. See
interpolated
have
act
courts
so
or a
Some
similar
but
v. Nevаda
statute,
others have not. Watson
chemists laboratories. See Segal, (1971), Study Drug “De- on Defense of Cases More 272 at 276. Cases,” fense in and Sale Possession provision specify important, statutory potential balance for abuse. legis- adopted: following of In the absence rule is contrary, lative declaration to is not essential elemеnt for abuse possession offense Possession of course knowing intentional.
must be trial. entitled new Defendant was McCown, J., dissenting. weight in- “сontrolled substance”
The total piece including news- inch here, volved folded was in which was usage, than ordinary that is less American In terms laboratory technician did 2/10,000’s of an ounce. The weight much of that infinitesimal not know how newspaper. piece was washed newspaper testing newspaper and the out of *4 percent- did not ascertain The tests discarded. purity. There was age no test as to or inactive was active the as to whether test biologically physiologically. substance was tirely up used in the determine tests to what was. pos- Uniform Controlled Substances Act makes session of a controlled' substance a crime unlеss possession Legislature is authorized the act. The any did not establish minimum amounts of controlled requisite substance, of which is crim- inal сonviction.
Under similar statutes, courts, some and now this interpreted language court, pos- to ban the session of any even the mоst minute traces of narcotic or controlled substance. Other courts have held to the contrary. pos- We believe thе better rule be that session of a minute substance, of a controlled drug, useless as a is insufficient to sustain a conviction knowing pоssession for People See, Rptr. (1966); Leal,
v.
50 Cal.
Haddock, 101 Ariz. P. 2d 577 prosecution ought The substance used as basis for quality suscept- such a as to be drug. necessary ible of use as a The intent to establish possession simply the crime of exist when being incapable applied amount is so minute as to be though analysis may identify use, chemical prohibited drug. a trace of a join
Boslaugh
«TJ.,
in this dissent.
Moore,
State
Ronald
Nebraska,
appellee,
v.
R.
Betty
Jones,
Green