State v. Seckinger , 301 Neb. 963 ( 2018 )

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www.nebraska.gov/apps-courts-epub/
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STATE v. SECKINGER
Cite as 301 Neb. 963State of Nebraska, appellee, v.
K athy A. Seckinger, appellant.
___ N.W.2d ___
Filed December 28, 2018. No. S-17-1099.
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 histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, giving due weight to the inferences drawn from those facts by the
trial judge. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
3. ____: ____. Under the Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution, the ultimate touchstone is
one of reasonableness.
4. Constitutional Law: Search and Seizure: Warrantless Searches.
Pursuant to the Fourth Amendment to the U.S. Constitution and article
I, § 7, of the Nebraska Constitution, searches and seizures must not be
unreasonable, and searches without a valid warrant are per se unreason-
able, subject only to a few specifically established and well-delineated
exceptions.
5. Search and Seizure: Warrantless Searches: Motor Vehicles. Among
the established exceptions to the warrant requirement is the automobile
exception.
6. 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.
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STATE v. SECKINGER
Cite as 301 Neb. 9637. Motor Vehicles: Words and Phrases. A vehicle is readily mobile
whenever it is not located on private property and is capable or appar-
ently capable of being driven on the roads or highways.
8. Search and Seizure: Probable Cause: Words and Phrases. Probable
cause to search requires that the known facts and circumstances are
sufficient to warrant a person of reasonable prudence in the belief that
contraband or evidence of a crime will be found.
9. Search and Seizure: Probable Cause: Appeal and Error. An appel-
late court determines whether probable cause existed under an objective
standard of reasonableness, given the known facts and circumstances,
but appellate courts should avoid an excessively technical dissection of
the factors supporting probable cause.
10. Probable Cause: Words and Phrases. Probable cause is a flex-
ible, commonsense standard that depends on the totality of the
circumstances.
11. ____: ____. The concept of probable cause, as the name implies, is
based on probabilities. It requires only a probability or substantial
chance of criminal activity, not an actual showing of such activity.
12. Probable Cause: Police Officers and Sheriffs. To find probable cause,
officers are not required to rule out all innocent explanations for suspi-
cious facts.
13. Probable Cause: Police Officers and Sheriffs: Motor Vehicles.
Probable cause may result from any of the senses, and an officer is
entitled to rely on his or her sense of smell in determining whether con-
traband is present in a vehicle.
14. Search and Seizure: Probable Cause: Police Officers and Sheriffs:
Motor Vehicles: Controlled Substances. Objectively, the smell of
burnt marijuana tells a reasonable officer that one or more persons in a
vehicle recently possessed and used the drug. The officer need not know
whether the amount possessed is more than 1 ounce in order to have
probable cause to suspect criminal activity in the vehicle.
15. Search and Seizure: Warrantless Searches: Probable Cause: Police
Officers and Sheriffs: Motor Vehicles. When an officer with sufficient
training and experience detects the odor of marijuana emanating from a
vehicle that is readily mobile, the odor alone furnishes probable cause
to suspect contraband will be found in the vehicle and the vehicle may
be lawfully searched under the automobile exception to the warrant
requirement.
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
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STATE v. SECKINGER
Cite as 301 Neb. 963Darin J. Knepper, Deputy Scotts Bluff County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
NATURE OF CASE
Kathy A. Seckinger appeals her felony conviction for pos-
session of methamphetamine. She assigns error to the denial
of a motion to suppress evidence seized during a warrantless
search of her car and argues that the smell of marijuana com-
ing from inside the car did not provide sufficient probable
cause to support the search. We affirm the judgment of the
district court.
BACKGROUND
On January 9, 2017, a Nebraska State Patrol trooper was
on patrol in Gering, Nebraska, when a green car accelerated
into an intersection directly in front of her. The trooper and
another motorist had to brake hard to avoid an accident, and
the trooper initiated a traffic stop. The stop and the events
immediately preceding it were recorded on the trooper’s dash-
board camera.
When the trooper approached the driver’s side to make
contact, she noticed the odor of burnt marijuana coming from
inside the car. The driver was identified as Seckinger. The
trooper confronted Seckinger about the smell and asked if
there was marijuana in the car. Seckinger said no, but volun-
teered that she had recently smoked a cigarette. The trooper
repeated that she smelled marijuana and asked Seckinger if
she had been around anyone smoking marijuana; Seckinger
said she had not. Finally, the trooper asked if there might
have been marijuana in the car previously. Seckinger again
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Cite as 301 Neb. 963responded no and added that she would not consent to
a search.
The trooper had Seckinger step out of the car and con-
ducted a search. No marijuana was found in the car, but the
trooper discovered more than 4 grams of methamphetamine.
Seckinger was placed under arrest and charged with the
Class IV felony of knowingly or intentionally possessing
methamphetamine. She entered a plea of not guilty and moved
to suppress the evidence found during the search, arguing
there was no probable cause for either the traffic stop or the
search of her car.
At the hearing on the motion to suppress, the trooper and
Seckinger were the only witnesses to testify. They both testi-
fied about the odor of marijuana, but their testimony differed
considerably. On direct examination by her attorney, Seckinger
denied there was any odor of marijuana coming from her car
when it was stopped: “[Counsel:] Does the interior of your car
smell like marijuana? [Seckinger:] No. Q. Did it ever smell
like marijuana? A. No. Q. Why not? A. There has not been
no marijuana in my vehicle at all. Q. Do you use marijuana?
A. No.”
In contrast, the trooper testified she noticed the distinctive
odor of marijuana emanating from the car as soon as she con-
tacted the driver. The trooper testified she received academy
training on detecting the odor of marijuana and also testified
about her experience detecting the smell of burnt and raw
marijuana during prior traffic stops. The trooper explained
that Seckinger’s car was stopped because it pulled across four
lanes of traffic and nearly caused an accident, and based on the
trooper’s experience, drivers who “do that kind of thing” are
sometimes impaired by alcohol or drugs. Consequently, when
the trooper smelled marijuana coming from inside the car, she
decided there was probable cause to search it.
After considering the evidence, the district court overruled
Seckinger’s motion to suppress. The court found that both the
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STATE v. SECKINGER
Cite as 301 Neb. 963traffic stop and the subsequent search of the car were sup-
ported by probable cause. In finding probable cause to search
the car, the court relied on our opinion in State v. Watts1 for
the proposition that the smell of marijuana, standing alone,
has long been held to furnish probable cause for a warrantless
search of a motor vehicle where there is sufficient foundation
as to the expertise of the officer in recognizing the smell. The
court found the trooper had expertise in detecting the odor of
marijuana and found credible her testimony that she smelled
marijuana coming from inside Seckinger’s car during the traf-
fic stop.
After the motion to suppress was overruled, a bench trial
was held on stipulated facts. Seckinger did not renew her
objection to the legality of the traffic stop, but did renew her
objection to the search of her car. That objection was overruled,
and Seckinger was found guilty of possession of methamphet-
amine. She was sentenced to 2 years’ probation and ordered to
pay court costs. Seckinger filed a timely appeal, and we moved
the case to our docket on our own motion.2
ASSIGNMENT OF ERROR
Seckinger assigns error to the overruling of her motion to
suppress, arguing the odor of marijuana standing alone no
l­onger provides probable cause to search a vehicle.
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.3
Regarding historical facts, an appellate court reviews the
trial court’s findings for clear error, giving due weight to the
1
State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).
2
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
3
State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
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Cite as 301 Neb. 963inferences drawn from those facts by the trial judge.4 But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that an appellate court reviews
independently of the trial court’s determination.5
ANALYSIS
On appeal, Seckinger does not challenge the legality of
the stop, the duration of the investigation, or the scope of the
subsequent search. Nor does she challenge the trial court’s fac-
tual finding that, during the investigation, the trooper detected
the odor of marijuana emanating from inside Seckinger’s
car. The sole issue on appeal is whether the odor of mari-
juana, standing alone, furnished probable cause to support the
warrantless search of Seckinger’s car. We limit our analysis
accordingly, and begin with a review of the governing consti-
tutional principles.
[2-5] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures.6 The ultimate
touchstone is one of reasonableness.7 Searches and seizures
must not be unreasonable, and searches without a valid war-
rant are per se unreasonable, subject only to a few specifically
established and well-delineated exceptions.8 Among the estab-
lished exceptions to the warrant requirement is the “‘automo-
bile exception.’”9
[6,7] The automobile exception to the warrant require-
ment applies when a vehicle is readily mobile and there is
4
See, id.; State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
5
Thalken, supra note 3.
6
See, State v. Barbeau, ante p. 293, 917 N.W.2d 913 (2018); State v.
Dalland, 287 Neb. 231, 842 N.W.2d 92 (2014).
7
See Rocha, supra note 4.
8
Id.9
Id. at 746, 890 N.W.2d at 202. Accord California v. Carney, 471 U.S. 386,
105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985).
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Cite as 301 Neb. 963probable cause to believe that contraband or evidence of
a crime will be found in the vehicle.10 A vehicle is readily
mobile whenever it is not located on private property and “is
capable or apparently capable of being driven on the roads
or highways.”11
[8-12] Probable cause to search requires that the known
facts and circumstances are sufficient to warrant a person of
reasonable prudence in the belief that contraband or evidence
of a crime will be found.12 An appellate court determines
whether probable cause existed under an objective standard
of reasonableness, given the known facts and circumstances,
but appellate courts should avoid an excessively technical dis-
section of the factors supporting probable cause.13 Probable
cause is a flexible, commonsense standard that depends on the
totality of the circumstances.14 The concept of probable cause,
as the name implies, is based on probabilities.15 It “‘requires
only a probability or substantial chance of criminal activity, not
an actual showing of such activity.’”16 Thus, to find probable
cause, officers are not required to rule out all innocent explana-
tions for suspicious facts.17
For decades, this court has consistently held that 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
10
See Rocha, supra note 4.
11
Id. at 755, 890 N.W.2d at 207.
12
J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013).
13
State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).
14
See id.15
See Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527(1983) (“‘[i]n dealing with probable cause . . . as the very name implies,
we deal with probabilities’”).
16
District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 586, 199 L.
Ed. 2d 453 (2018).
17
See Botts, supra note 13 (citing Wesby, supra note 16).
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Cite as 301 Neb. 963exception to the warrant requirement.18 We first articulated this
rule in the 1977 case State v. Benson.19
In Benson, a van pulling a trailer was stopped after troop-
ers noticed an irregularity on the van’s license plate. During
the investigation, one trooper detected the strong smell of
marijuana coming from the trailer. The trooper asked the
van’s driver to open the trailer, but the driver claimed not to
know the lock combination. The trooper called the county
attorney’s office to obtain a search warrant and was told no
warrant was needed. The trooper then searched the trailer
and discovered 119 pounds of marijuana. We upheld the con-
stitutionality of the warrantless search, reasoning that “[t]he
great majority of courts which have currently passed upon
the issue have held that the smell of marijuana was alone
sufficient to furnish probable cause to search a vehicle with-
out a warrant, at least where there is sufficient foundation as
to expertise.”20
[13] A few years later in State v. Daly,21 we reiterated the
rule that the odor of marijuana coming from a vehicle is suf-
ficient standing alone to furnish probable cause to search the
vehicle. In Daly, a pickup was stopped by a trooper for speed-
ing. While walking around the pickup, the trooper smelled the
odor of marijuana coming from the bed of the pickup, which
was covered by a fiberglass shell. The trooper confronted the
driver about the marijuana smell, but the driver denied there
was marijuana in the pickup and declined consent to search.
A warrantless search revealed 582 pounds of marijuana in
18
See, e.g., Watts, supra note 1; State v. Ruzicka, 202 Neb. 257, 274 N.W.2d
873 (1979); State v. Daly, 202 Neb. 217, 274 N.W.2d 557 (1979); State
v. Kretchmar, 201 Neb. 308, 267 N.W.2d 740 (1978), overruled on other
grounds 203 Neb. 663, 280 N.W.2d 46 (1979); State v. Benson, 198 Neb.
14, 251 N.W.2d 659 (1977). Accord State v. Reha, 12 Neb. App. 767, 686
N.W.2d 80 (2004).
19
Benson, supra note 18.
20
Id. at 18, 251 N.W.2d at 661-62.
21
Daly, supra note 18.
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Cite as 301 Neb. 963the rear of the pickup. In affirming the trial court’s finding of
probable cause to search the pickup, we noted the trooper had
received basic training on detecting the smell of marijuana and
had arrested more than 50 drivers for possession of marijuana
after smelling it during a traffic stop. We quoted our holding
in Benson and emphasized that probable cause may result from
any of the senses and that an officer is entitled to rely on his or
her sense of smell in determining whether contraband is pres-
ent in a vehicle.22
We adhered to this reasoning in State v. Ruzicka.23 There,
a truck was stopped by a trooper for a broken taillight. While
standing at the drivers’ window, the trooper noticed the smell
of burnt marijuana coming from the driver’s compartment. The
trooper asked permission to search, and the driver refused. A
warrantless search of the truck revealed marijuana, metham-
phetamine, and LSD. On appeal, the driver argued the smell of
burnt marijuana coming from the driver’s compartment was not
sufficient to provide probable cause to search the entire truck.
We upheld the constitutionality of the search, observing that
“[i]n a number of cases we have held that the odor of mari-
juana coming from a vehicle is sufficient to furnish probable
cause for a search of the vehicle.”24 We expressly rejected the
suggestion that smelling burnt marijuana in the driver’s com-
partment should have limited the scope of the search, explain-
ing, “We know of no reason why there should be a distinction
between the odor of burned and unburned marijuana in this
type of situation.”25
In State v. Watts,26 a driver was stopped by a trooper for
speeding. While standing outside the open driver’s window,
the trooper detected the smell of burnt marijuana. The trooper
22
Id.23
Ruzicka, supra note 18.
24
Id. at 258, 274 N.W.2d at 875.
25
Id. at 258-59, 274 N.W.2d at 875.
26
Watts, supra note 1.
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Cite as 301 Neb. 963asked whether there was marijuana in the vehicle, and the
driver answered there was not. The trooper asked permission
to search the vehicle, and the driver declined. The trooper then
looked into the back seat of the vehicle and observed in plain
view a plastic bag of marijuana. The driver was arrested, and
the rest of the vehicle was searched. In the trunk, the trooper
discovered three large trash bags containing a total of 60
pounds of marijuana. On appeal, we upheld the constitutional-
ity of the warrantless search. We began our analysis by discuss-
ing the U.S. Supreme Court cases recognizing the automobile
exception to the warrant requirement. We then discussed our
prior holdings on the smell of marijuana emanating from auto-
mobiles, stating:
We have constantly held that the smell of marijuana,
standing alone, is sufficient to furnish probable cause for
the warrantless search of a motor vehicle where, as here,
there was sufficient foundation as to the expertise of the
officer. . . . We have further held the odor of burned mari-
juana coming from the driver’s compartment of a truck
was sufficient probable cause to search the truck.27
The driver in Watts conceded that under our prior cases,
the trooper had probable cause to search the vehicle, but
he argued that once the trooper discovered the small bag of
marijuana in plain view in the back seat, he could search no
further without additional facts to suggest marijuana might
be found in the trunk. We soundly rejected this argument,
reasoning:
[I]t [is] just as logical to conclude that the finding of the
small amount of marijuana in the passenger compart-
ment, after being told by the defendant that none existed,
simply served to substantiate the officer’s suspicions
and furnish additional probable cause to make a com-
plete search of the automobile. Having found a quantity
of illicit drugs in one part of the automobile does not
27
Id. at 374, 307 N.W.2d at 819.
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Cite as 301 Neb. 963sensibly suggest the probability that no more such sub-
stance is present.28
In the instant appeal, Seckinger asks us to revisit this line of
cases. Her primary contention is that the legalization of mari-
juana in Colorado has eroded the legal premise of our prec-
edent because, she contends, the odor of marijuana standing
alone no longer suggests criminal activity. Thus, the question
presented here is a narrow one: Does the odor of marijuana
coming from a vehicle, standing alone, still provide probable
cause to search the vehicle? We conclude it does.
Before explaining our reasoning, we pause to observe that
much of Seckinger’s brief is devoted to suggesting there could
have been several noncriminal explanations for the odor of
marijuana in her car. But none of the suggested explanations
are supported by the record. Indeed, when the trooper con-
fronted her about smelling marijuana, Seckinger offered no
explanation at all—legal or otherwise—and simply denied the
odor was present. But regardless of the explanation given to the
trooper, we are unpersuaded by Seckinger’s legal argument on
appeal. We find no merit to her suggestion that recent changes
in Colorado’s marijuana laws compel a change in Nebraska’s
settled jurisprudence.
First, we state the obvious: Marijuana remains a con-
trolled substance under both federal law29 and Nebraska law.30
Because of marijuana’s legal status as contraband, a trained
officer who detects the odor of marijuana emanating from a
vehicle in Nebraska has firsthand information that provides
an objectively reasonable basis to suspect contraband will be
found in the vehicle. Assuming the vehicle is readily mobile,
the odor of marijuana alone provides probable cause to search
28
Id.29
See, 21 U.S.C. § 812(c) (2012); Gonzales v. Raich, 545 U.S. 1, 27, 125
S. Ct. 2195, 162 L. Ed. 2d 1 (2005) (recognizing federal law “designates
marijuana as contraband for any purpose”).
30
See Neb. Rev. Stat. §§ 28-405(c)(7) and 28-416(11) through (13) (Supp.
2017).
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Cite as 301 Neb. 963the vehicle under the automobile exception to the warrant
requirement.31 And while there may be innocent explana-
tions for the odor of marijuana inside a vehicle, the concept
of probable cause is based on probabilities32 and does not
require officers to rule out all innocent explanations for suspi-
cious facts.33
Moreover, similar to Nebraska courts, most state and fed-
eral courts agree that the odor of marijuana alone furnishes
probable cause for a warrantless search of the vehicle from
which the odor emanates.34 Even among states that have passed
laws allowing medical or recreational marijuana use, many
courts continue to recognize that marijuana is contraband and
that the odor of marijuana can provide probable cause to
search a vehicle.35
31
See Watts, supra note 1.
32
See Gates, supra note 15.
33
See Botts, supra note 13.
34
See, Annot., 114 A.L.R. 5th 173, §§ 5, 7, and 9 (2003) (and cases cited
therein); Annot., 188 A.L.R. Fed. 487, § 7 (2003) (and cases cited therein).
Accord 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 3.6(b) (5th ed. 2012) (recognizing it is generally accepted
that smell of marijuana, whether raw or burnt, is sufficiently distinctive to
afford probable cause to search particular place from which odor emanates).
35
See, e.g., Robinson, Williams & Spriggs v. State, 451 Md. 94, 152 A.3d
661 (2017) (despite decriminalization of less than 10 grams of marijuana,
marijuana remains contraband and odor of marijuana emanating from
vehicle provides probable cause to search vehicle); State v. Cheatham,
240 Ariz. 1, 375 P.3d 66 (2016) (although Arizona Medical Marijuana
Act created limited exception to laws proscribing marijuana, odor of
marijuana alone supports probable cause to search car unless totality of
circumstances suggest marijuana possession complies with act); People v.
Zuniga, 372 P.3d 1052 (Colo. 2016) (despite California’s legalization of 1
ounce or less of marijuana, odor of marijuana still relevant to totality of
circumstances test and can contribute to probable cause determination);
United States v. White, 732 Fed. Appx. 597 (9th Cir. 2018) (despite
Nevada’s legalization of medical marijuana, smell of marijuana emanating
from vehicle still provides probable cause for warrantless search because
nonmedical marijuana remains contraband).
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Cite as 301 Neb. 963[14] Finally, Seckinger’s argument is similar to one we
recently rejected in State v. Perry.36 In Perry, we were con-
cerned with whether there was probable cause to arrest the
occupants of the vehicle and not whether there was probable
cause to search the vehicle. But similar to Seckinger’s argu-
ment, the defendant’s argument in Perry was that our line of
cases analyzing probable cause based on the odor of marijuana
was no longer good precedent. In Perry, the defendant argued
the cases analyzing the odor of marijuana had been decided at
a time when the possession of any amount of marijuana was a
crime; because possession of less than an ounce of marijuana is
now an infraction under Nebraska law,37 the defendant in Perry
suggested the smell of marijuana alone no longer furnished
probable cause to suspect criminal activity in the vehicle. We
rejected this argument and concluded the change in penalty
was immaterial to our probable cause jurisprudence, reasoning:
Objectively, the smell of burnt marijuana tells a rea-
sonable officer that one or more persons in the vehicle
recently possessed and used the drug. The officer need
not know whether the amount possessed is more than 1
ounce in order to have probable cause to suspect criminal
activity in the vehicle.38
[15] Similarly, we reject Seckinger’s suggestion that a
change in other states’ criminal laws regarding marijuana are
material to the probable cause holdings announced in Benson,
Daly, Ruzicka, and Watts. We instead adhere to these holdings
and reiterate the general rule that when an officer with suf-
ficient training and experience detects the odor of marijuana
emanating from a vehicle that is readily mobile, the odor alone
furnishes probable cause to suspect contraband will be found
in the vehicle and the vehicle may be lawfully searched under
the automobile exception to the warrant requirement.
36
State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2016).
37
See § 28-416(13).
38
Perry, supra note 36, 292 Neb. at 722, 874 N.W.2d at 46.
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Cite as 301 Neb. 963Here, the trooper testified credibly that she smelled mari-
juana emanating from inside Seckinger’s car during a traffic
stop. The trooper had training and experience in detecting the
odor of marijuana, and Seckinger’s car was readily mobile
when it was searched. On this record, we agree with the dis-
trict court that the odor of marijuana coming from inside the
car furnished probable cause to suspect contraband would be
found in the car, and we conclude the warrantless search of
the car was lawful under the automobile exception to the war-
rant requirement. Seckinger’s motion to suppress was prop-
erly overruled.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.