State v. Lang

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/26/2020 12:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
State of Nebraska, appellee, v.
Jessica Jo Lang, appellant.
___ N.W.2d ___
Filed May 8, 2020. No. S-19-275.
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, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
2. Mental Competency: Appeal and Error. A trial court’s determination
of competency will not be disturbed on appeal unless there is insuf-
ficient evidence to support the finding. But a trial court’s decision
not to order a competency evaluation or hold a competency hearing is
reviewed for an abuse of discretion.
3. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
4. Investigative Stops: Motor Vehicles: Time. A lawful traffic stop can
become unlawful if it is prolonged beyond the time reasonably required
to complete the mission of the stop.
5. ____: ____: ____. When the mission of an investigative stop is address-
ing a suspected traffic violation, the stop may last no longer than is
necessary to effectuate that purpose, and authority for the seizure ends
when tasks tied to the traffic infraction are, or reasonably should have
been, completed.
6. Controlled Substances: Investigative Stops: Motor Vehicles:
Police Officers and Sheriffs. Because of marijuana’s legal status as
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STATE v. LANG
Cite as 305 Neb. 726
contraband, a trained officer who detects the odor of marijuana emanat-
ing from a vehicle in Nebraska has firsthand information that provides
an objectively reasonable basis to suspect contraband will be found in
the vehicle.
7. 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.
8. Warrantless Searches: Motor Vehicles. Searches without a valid war-
rant are per se unreasonable, subject only to a few specifically estab-
lished and well-delineated exceptions. Among the established excep-
tions to the warrant requirement is the automobile exception.
9. 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.
10. 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.
11. Controlled Substances: Search and Seizure: Warrantless Searches:
Motor Vehicles: Probable Cause. Assuming a vehicle is readily mobile,
the odor of marijuana alone provides probable cause to search the vehi-
cle under the automobile exception to the warrant requirement.
12. Search and Seizure: Motor Vehicles: Probable Cause. If probable
cause justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that may con-
ceal the object of the search. This includes all containers within the
vehicle.
13. Courts: Trial: Mental Competency. The question of competency to
stand trial is one of fact to be determined by the court, and the means
employed in resolving the question are discretionary with the court. The
trial court may cause such medical, psychiatric, or psychological exami-
nation of the accused to be made as it deems necessary.
14. Mental Competency. An explicit competency determination is neces-
sary only when the court has reason to doubt the defendant’s compe-
tence, and if proceedings do not provide the court with reason to doubt
a defendant’s competence, it does not err by not conducting a compe-
tency hearing.
15. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
16. Mental Competency. There are no fixed or immutable signs of incom-
petence, and a defendant can meet the modest aim of legal competency,
despite paranoia, emotional disorders, unstable mental conditions, and
suicidal tendencies.
17. Effectiveness of Counsel: Proof: Words and Phrases. Generally, to
prevail on a claim of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
the defendant must show that his or her counsel’s performance was
deficient and that this deficient performance actually prejudiced the
defendant’s defense.
18. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record. Otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
19. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal. The deter-
mining factor is whether the record is sufficient to adequately review the
question. The record is sufficient if it establishes either that trial coun-
sel’s performance was not deficient, that the appellant will not be able to
establish prejudice, or that trial counsel’s actions could not be justified
as a part of any plausible trial strategy.
20. Mental Competency: Final Orders. A trial court’s decision to overrule
a motion for a competency evaluation is not a final, appealable order.
21. Trial: Effectiveness of Counsel: Appeal and Error. Trial counsel is
afforded due deference to formulate trial strategy and tactics, and an
appellate court will not second-guess trial counsel’s reasonable strategic
tactics when reviewing claims of ineffective assistance of counsel.
Appeal from the District Court for Hall County: Mark J.
Young, Judge. Affirmed.
Gerard A. Piccolo, Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
Stacy, J.
After a stipulated bench trial, Jessica Jo Lang was convicted
of possessing methamphetamine and marijuana. In this direct
appeal, she argues the district court erred in overruling her
motion to suppress and her motions seeking a competency
evaluation. Lang, who is represented by new appellate counsel,
also claims her trial counsel provided ineffective assistance.
Finding no error, we affirm.
I. BACKGROUND
1. Traffic Stop
On August 16, 2017, Officer Bret Renz of the Grand Island
Police Department was on patrol. At approximately 10:45 p.m.,
his radar detected a vehicle traveling more than 10 miles per
hour over the posted speed limit and he activated his patrol
car’s overhead emergency lights and initiated a traffic stop.
The driver of the vehicle was Omega Fristoe, and the sole pas-
senger was Lang.
Renz gathered Fristoe’s information and returned to his
patrol car to run a record check and complete a traffic cita-
tion. As he did this, Officer Chris Marcello of the Grand Island
Police Department arrived on the scene to assist.
After Renz completed the citation form, both officers
approached Fristoe’s vehicle. Renz approached on the driver’s
side, and Marcello approached on the passenger’s side. The
front passenger window was rolled down 4 to 6 inches, and
as Marcello approached, he detected an odor of marijuana
coming from the passenger window. He saw Lang look up
at him and then reach into her purse. He watched Lang get a
cigarette from her purse and light it, after which Lang blew
smoke around the cabin of the vehicle and then continued to
“go through her purse.”
Marcello got Renz’ attention, and the officers met at the
back of the vehicle to speak privately. At that point, Renz
had not issued the citation to Fristoe. Marcello told Renz he
smelled marijuana coming from the passenger window, and
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305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
the officers decided to expand their investigation. Renz placed
his ticket book, with the citation still attached, on the trunk
of Fristoe’s vehicle, and then the officers reapproached the
vehicle and asked the occupants to step out. Both Fristoe and
Lang complied.
When Lang stepped out of the vehicle, she brought her purse
with her. She was directed to place the purse on the hood of
Fristoe’s vehicle, which she did. The officers told Fristoe and
Lang that the odor of marijuana had been detected coming
from inside their vehicle. During the course of the investiga-
tion, Marcello searched Lang’s purse and discovered a green
leafy substance in a baggie that field-tested positive for mari-
juana, a white crystalline substance in a baggie that field-tested
positive for methamphetamine, some nonnarcotic pills, and
drug-related paraphernalia.
2. Motion to Suppress
Lang was charged with (1) possession of a controlled sub-
stance, methamphetamine (a Class IV felony); (2) possession
of marijuana, less than an ounce (an infraction); and (3) pos-
session of drug paraphernalia (an infraction). She pled not
guilty.
Lang filed a motion to suppress the evidence found in her
purse, arguing it was obtained as the result of an unconsti-
tutional search. At the suppression hearing, both Renz and
Marcello testified to the events as summarized above. In addi-
tion, Renz testified that before Marcello alerted him to the odor
of marijuana coming from the passenger window, he had not
smelled marijuana either time he approached the driver’s side
of the vehicle.
At the conclusion of the evidence, the district court over-
ruled Lang’s motion to suppress. It found there was probable
cause for the traffic stop because the vehicle was observed
speeding. It reasoned the smell of marijuana coming from
inside the vehicle gave the officers probable cause for a war-
rantless search of the vehicle and containers in the vehicle,
including Lang’s purse. The court found Marcello’s testimony
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STATE v. LANG
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about smelling marijuana coming from the passenger window
was credible, and it rejected Lang’s argument to the contrary.
Lang’s case was set for trial.
3. Trial
(a) First Request for
Competency Evaluation
On the morning of September 24, 2018, Lang appeared in
court with her attorney for jury selection. Outside the presence
of the prospective jurors, Lang’s counsel told the court he was
concerned that Lang’s emotional state may interfere with jury
selection and trial. The court construed this as an oral motion
for a competency evaluation, and it took the matter up on
the record.
No evidence was offered, but Lang’s attorney informed the
court that Lang suffered from post-traumatic stress disorder
as a result of a prior work-related assault and that she had
been unable to afford her anxiety medication for more than a
year. Counsel explained that Lang had been frightened during
all of her court appearances, but that her emotional state that
day was “extreme.” Counsel told the court that Lang “does
understand what is going on and understands what we are say-
ing,” but that he was concerned about her sobbing in court,
explaining:
I am having trouble getting communication back from her
that I understand or that the jury will understand in part
due to her inability to control her depression.
She also has informed me that for the past couple three
weeks, she has seriously considered issues of suicide and
self-harm because of this situation and her lack of medi-
cation. She has not known how to resolve it.
She states to me that she has in fact sought help from
governmental entities in regards to her mental health, but
because she is pending a worker’s compensation claim
against the State of Nebraska, those entities have said that
the State should be responsible for paying that and they
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STATE v. LANG
Cite as 305 Neb. 726
have not provided treatment. Her worker’s comp trial is
not scheduled for another couple of months.
....
. . . Your Honor, I think if we were to go to jury selec-
tion and trial today, I don’t believe the jury would be able
to get past the emotional condition that my client is in
for purposes of actually addressing and listening to the
facts that may be presented at the time of trial or that they
would be able to even understand Ms. Lang should she
elect to testify, if she was able to testify at all.
The State took no position on the issue other than advising
it was ready for trial. The district court, with counsel’s permis-
sion, spoke with Lang directly:
THE COURT: Ms. Lang, we’re here today to select a
jury that will ultimately decide whether or not you are
guilty or not guilty of the charges that have been filed
against you. Do you understand that Ms. Lang?
THE DEFENDANT: Yes.
THE COURT: Ms. Lang, it’s important that the jury
reach a decision based upon the facts of the case and not
their impressions, positive or negative, about you or any-
one else. Do you understand that?
THE DEFENDANT: Yeah.
THE COURT: Ms. Lang, will you control yourself dur-
ing the courtroom proceedings?
THE DEFENDANT: I can try my best. I apologize.
THE COURT: Ms. Lang, are there any accommoda-
tions that the Court can provide that would allow you to
calm yourself?
THE DEFENDANT: No.
....
THE COURT: At this point, it appears that Ms. Lang
understands the nature of these proceedings and that Ms.
Lang suffers, by her statements and by counsel’s state-
ments, from some traumatic issues that don’t involve
this case.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
I find Ms. Lang is competent to proceed to trial. We
will attempt at least to begin voir dire today as the second
case to be chosen. We’ll see how things go.
I’ll be willing to listen to any comments by either
counsel.
Our record does not include jury selection, but it does show
that the next day, the district court commented favorably on
Lang’s composure during jury selection.
(b) Second Request for
Competency Evaluation
On the first day of trial, outside the presence of the jury,
the State requested a reciprocal order of witness sequestra-
tion, which the court granted. Fristoe, who was present in the
courtroom and a possible witness for the defense, was told
he would have to step out once the trial began. At that point,
Lang covered her face and began sobbing. Lang’s counsel told
the court that Fristoe was a strong emotional support for Lang,
who was still having anxiety issues.
The court spoke again with Lang about the importance of
a fair trial and controlling her emotions and behavior during
trial. Lang replied to the court, “I cannot control my mental
illness. I am sorry.” The court replied:
I don’t mean to belittle your emotional situation, but I
have not received any evidence that would support a
claim that you cannot carry on appropriately or behave
yourself.
I would note you did a great job at jury selection yes-
terday. I would note that no tears appear to be falling off
when you are making the sobbing noises.
Lang’s counsel then offered exhibit 8, a psychological evalu-
ation from December 2014 conducted as part of Lang’s work-
ers’ compensation case. The exhibit was received without
objection. The State again advised the court it was ready to try
the case and opposed additional delays.
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305 Nebraska Reports
STATE v. LANG
Cite as 305 Neb. 726
The court asked Lang’s counsel to clarify whether he was
seeking a continuance or seeking a competency evaluation.
Counsel replied:
[R]ight now, I do not know — well, how can I put this —
if Ms. Lang can understand what’s going on.
I believe that her emotional condition, her anxiety reac-
tion, and her depression have made it such that she cannot
control her physical condition. As she has presented in the
courtroom, it’s making it difficult to verbally communi-
cate and appropriately provide an appearance to the jury
which may jeopardize their ability to render an impartial
decision. That’s my concern.
The court asked again, “[A]re you asking for a competency
evaluation, [counsel]?” to which counsel replied, “I will ask
for a competency evaluation to see if she’s capable of par-
ticipating in her current psychological condition.” The court
took a recess to review exhibit 8 and then went back on the
record and made the following ruling outside the presence of
the jury:
Based upon review of Exhibit 8 and the Court’s obser-
vations from yesterday and today, I am overruling the
motion for a competency evaluation. There’s nothing in
the record indicating Ms. Lang is incapable of understand-
ing the proceedings or communicating with counsel.
I will, however, in an attempt to accommodate Ms.
Lang, continue this matter until one p.m. so that Ms. Lang
may have a chance to get some fresh air and to come back
and hopefully be ready to participate or be ready to be
attentive during the trial of this case.
....
Ms. Lang, this is an unusual step, but I am giving you
a chance to take a little more time to compose yourself. In
reviewing Exhibit 8, the mental health reports from three
and four years ago, it appears that you have had some
coping skills you need to be utilizing.
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STATE v. LANG
Cite as 305 Neb. 726
(c) Change of Plea
When the parties returned at 1 p.m. to begin trial, Lang’s
counsel advised that his client wanted to enter a no contest
plea to the charges in the information. Lang confirmed that was
her desire.
The court went through the standard plea colloquy with
Lang, and Lang consistently indicated that she understood her
rights and the consequences of her pleas. After the State recited
the factual basis, the court asked Lang whether she understood
that if the court accepted her pleas, she would be giving up her
right to appeal the overruling of her motion to suppress. Lang
indicated she was not aware of that fact and told the court it
may affect her decision. A recess was taken so Lang could talk
with her attorney.
After the recess, Lang’s counsel advised the court that in
order to preserve her right to appeal the suppression ruling,
Lang now wanted to withdraw her no contest pleas, enter not
guilty pleas, waive a jury, and have the matter tried to the
bench on “the facts as submitted to the Court in the hearing
on the motion to suppress.” Lang confirmed that was how she
wanted to proceed.
The court allowed Lang to withdraw her no contest pleas and
enter not guilty plea and then discussed the waiver of a jury
trial with Lang. Lang stated she had discussed the matter with
her attorney and wanted to waive a jury trial. She told the court
that no one had made any threats, used any force, or made any
promises to get her to waive a jury. The court accepted Lang’s
jury waiver, expressly finding it was made freely, voluntarily,
knowingly, and intelligently. The jury was dismissed, and the
matter proceeded immediately to a bench trial.
(d) Stipulated Bench Trial
The parties stipulated that the court should take judicial
notice of the evidence presented at the motion to suppress
hearing and that the court should consider it as evidence in the
bench trial. Lang’s counsel renewed his objection to the evi-
dence seized from Lang’s purse on the ground it was obtained
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STATE v. LANG
Cite as 305 Neb. 726
through an unconstitutional search, and the objection was
overruled. The State then offered, without objection, a copy of
the laboratory report containing test results for the substances
found in Lang’s purse, and the parties stipulated that one of the
items described in the laboratory report was the white crystal-
line substance found in Lang’s purse, which tested positive for
methamphetamine, weighing 3.5 grams.
After the presentation of evidence, the district court found
the State had met its burden of proof as to counts I and II
of the information and found Lang guilty. The court found
the State had failed to prove count III, possession of drug
paraphernalia, and dismissed that count. The court ordered a
presentence investigation and asked the parties whether they
wanted to request “any other . . . evaluations.” The State and
Lang both declined. Lang was ordered to appear at sentencing
on February 5, 2019.
(e) Sentencing and Third Request
for Competency Evaluation
Lang did not appear for sentencing on February 5, 2019, but
new defense counsel appeared on her behalf and requested a
continuance. Sentencing was continued to February 14.
At the sentencing hearing, Lang’s new counsel moved for a
competency evaluation, arguing he did not think Lang had been
able to effectively assist her prior counsel. The State argued
that a competency evaluation was unnecessary and opposed a
continuance for that purpose.
In support of the request for a competency evaluation,
defense counsel asked the court to take judicial notice of the
presentence investigation report and offered exhibits 10 and
11, both of which had been prepared in connection with Lang’s
workers’ compensation case. Exhibit 10 was a medical report
dated October 20, 2018, which summarized Lang’s diagnoses
of generalized anxiety disorder, post-traumatic stress disorder,
and major depressive disorder. Exhibit 11 was a report of psy-
chological testing performed on September 18, 2018, which
generally agreed with the diagnoses set forth in exhibit 10 and
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STATE v. LANG
Cite as 305 Neb. 726
added diagnoses of panic disorder without agoraphobia and of
avoidant personality disorder. Exhibits 10 and 11 were received
without objection.
After reviewing the exhibits, the district court denied Lang’s
third motion for a competency evaluation. The court acknowl-
edged evidence of Lang’s traumatic work-related injury and her
mental health diagnoses. But it also observed that throughout
the criminal proceedings, Lang had been able to confer with
counsel and make decisions regarding her defense, including
the decision to withdraw her pleas of no contest and proceed
with a stipulated bench trial to preserve her right to appeal the
suppression ruling and her decision to hire new counsel for
the sentencing phase. The court concluded that Lang under-
stood the nature of the proceedings and her rights within those
proceedings and that a formal competency evaluation was
not necessary.
After an opportunity for allocution, Lang was sentenced
to 12 months’ probation on count I and was fined $300 on
count II. She timely appealed, and we moved the appeal to our
docket on our own motion.
II. ASSIGNMENTS OF ERROR
Lang assigns that the district court erred in (1) overrul-
ing her motion to suppress and (2) overruling her motions to
determine competency. Lang also assigns that her trial counsel
provided ineffective assistance in several respects.
III. 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 for clear error, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination. 1 When a motion to suppress is denied
1
State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
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pretrial and again during trial on renewed objection, an appel-
late court considers all the evidence, both from trial and from
the hearings on the motion to suppress. 2
[2] A trial court’s determination of competency will not be
disturbed on appeal unless there is insufficient evidence to sup-
port the finding. 3 A trial court’s decision not to order a compe-
tency evaluation or hold a competency hearing is reviewed for
an abuse of discretion. 4
[3] In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 5
IV. ANALYSIS
1. Motion to Suppress
In seeking to suppress evidence obtained from the search
of her purse, Lang argues (1) the search was unlawful because
it occurred after the purpose of the traffic stop had been com-
pleted and (2) the search of her purse was not justified by the
automobile exception to the warrant requirement. We address
each argument in turn and reject both.
(a) Traffic Stop Not
Impermissibly Extended
[4,5] A lawful traffic stop can become unlawful if it is
prolonged beyond the time reasonably required to complete
2
Id.
3
State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
4
See State v. Cortez, 191 Neb. 800, 218 N.W.2d 217 (1974) (failure to
hold hearing on defendant’s mental capacity to stand trial not abuse of
discretion). See, also, U.S. v. Turner, 644 F.3d 713 (8th Cir. 2011) (district
court’s decision not to order competency evaluation or hold competency
hearing reviewed for abuse of discretion).
5
State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
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the mission of the stop. 6 When the mission of an investiga-
tive stop is addressing a suspected traffic violation, the U.S.
Supreme Court has instructed that the stop may last no longer
than is necessary to effectuate that purpose, and authority for
the seizure ends when tasks tied to the traffic infraction are, or
reasonably should have been, completed. 7
Here, Fristoe was stopped for exceeding the speed limit.
Lang does not challenge the stop itself, but she argues that by
the time the odor of marijuana was detected, the traffic stop
was already complete. 8 We disagree.
The record shows that near the end of the traffic stop, while
one officer was in the process of explaining the speeding cita-
tion to the driver but before the citation had been issued, the
other officer smelled marijuana coming from the passenger
window. The district court made an express factual finding that
the odor of marijuana was detected before the traffic citation
had been issued to the driver. This factual finding is supported
by the record and is not clearly erroneous.
There is no evidence that officers took any longer than nec-
essary to investigate the speeding violation or to prepare the
resulting citation. And because the citation had not yet been
issued to Fristoe, the purpose of the traffic stop had not yet
been effectuated when the smell of marijuana was detected
coming from the vehicle.
[6] 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. 9 The smell of marijuana provided
officers with reasonable suspicion to expand the traffic stop
6
State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).
7
Rodriguez v. U.S., 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492
(2015).
8
See id.
9
State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018).
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to include investigation of possible criminal activity involving
controlled substances. 10 Moreover, because the vehicle was
readily mobile, the odor of marijuana alone provided officers
with probable cause to search the vehicle under the automobile
exception to the warrant requirement. 11 We discuss that excep-
tion next.
(b) Automobile Exception
[7,8] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. 12 Searches with-
out a valid warrant are per se unreasonable, subject only to a
few specifically established and well-delineated exceptions. 13
Among the established exceptions to the warrant requirement
is the automobile exception. 14
[9-11] This exception 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. 15 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. 16
Assuming the vehicle is readily mobile, the odor of marijuana
alone provides probable cause to search the vehicle under the
automobile exception to the warrant requirement. 17
Lang does not contest that Fristoe’s vehicle was readily
mobile, and she generally concedes the officers had probable
cause to search the vehicle after smelling marijuana. But Lang
argues the automobile exception did not justify the warrantless
10
See State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
11
Seckinger, supra note 9.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
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search of her purse, because when the purse was searched, it
was no longer inside the vehicle. On this record, we are not
persuaded that makes a difference.
[12] The U.S. Supreme Court has held that if probable cause
justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that
may conceal the object of the search. 18 This includes all con-
tainers within the vehicle. 19
The district court made a factual finding that Lang was
seated inside the vehicle with the purse on her lap when the
officer detected the smell of marijuana. Lang was seated in the
passenger seat, and the smell of marijuana was coming from
the passenger window. After noticing the smell, the officer
observed Lang repeatedly “go through her purse,” and when
Lang was asked to step out of the vehicle, she brought the
purse with her.
Officers instructed her to set the purse on the hood of the
vehicle, and she complied. On this record, the location of the
purse at the time it was searched does not change its character
as a container that was inside the vehicle when officers devel-
oped probable cause to search the vehicle. 20 The district court
properly overruled Lang’s motion to suppress.
2. Competency Rulings
Lang’s trial counsel moved for a competency evaluation
three times during the course of this case­—before jury selec-
tion, before the presentation of evidence, and before sentenc-
ing. She argues the court erred in overruling those motions.
18
Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408
(1999).
19
Id.
20
See, e.g., State v. Furrillo, 274 Or. App. 612, 362 P.3d 273 (2015)
(passenger’s backpack properly searched after he removed it from vehicle
upon exiting after drug dog alerted to vehicle); State v. Smith, 152 Idaho
115, 266 P.3d 1220 (Idaho App. 2011) (backpack in vehicle at time officer
observed marijuana pipe in vehicle properly searched even though driver
removed it from vehicle upon exiting).
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[13,14] The question of competency to stand trial is one of
fact to be determined by the court, and the means employed
in resolving the question are discretionary with the court. 21
The trial court may cause such medical, psychiatric, or psy-
chological examination of the accused to be made as it deems
necessary. 22 But an explicit competency determination is neces-
sary only when the court has reason to doubt the defendant’s
competence, and if proceedings do not provide the court with
reason to doubt a defendant’s competence, it does not err by
not conducting a competency hearing. 23
[15,16] A person is competent to plead or stand trial if he
or she has the capacity to understand the nature and object of
the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make
a rational defense. 24 We have recognized there are no fixed
or immutable signs of incompetence, and a defendant can
meet the modest aim of legal competency, despite paranoia,
emotional disorders, unstable mental conditions, and suicidal
tendencies. 25
We find no abuse of discretion in the trial court’s decision
to overrule Lang’s motions for a competency evaluation. On
appeal, Lang does not contend she was unable to understand or
comprehend the proceedings against her. She argues only that
“[h]er mental illness before jury selection and presentation of
evidence prevented [her] from presenting a rational defense.” 26
She does not explain why this is so, and we see nothing in the
record to support this argument.
Despite Lang’s mental health diagnoses and her occasional
emotional responses in the courtroom, the record contains
21
State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).
22
See, State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016); Cortez, supra
note 4. See, also, Neb. Rev. Stat. § 29-1823 (Cum. Supp. 2018).
23
See State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
24
Grant, supra note 22.
25
State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
26
Brief for appellant at 15.
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nothing that would provide the court with a reason to doubt
her competence.
The trial court had the opportunity to observe and inter-
act with Lang during jury selection, during the plea hearing,
during the bench trial, and during sentencing. During those
interactions, Lang consistently demonstrated an understanding
of the criminal proceedings and her rights in relation to those
proceedings, as well as the ability to assist in her own defense.
On this record, there was no abuse of discretion in overruling
Lang’s motions for a competency evaluation.
3. Ineffective Assistance
of Counsel
[17] Lang assigns that her trial counsel, who was different
from her appellate counsel, provided ineffective assistance.
Generally, to prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 27 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense. 28
[18] When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel’s ineffective perform­
ance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. 29
[19] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it
can be resolved on direct appeal. 30 The determining factor
is whether the record is sufficient to adequately review the
27
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
28
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
29
Id.
30
Id.
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question. 31 We have said the record is sufficient if it establishes
either that trial counsel’s performance was not deficient, that
the appellant will not be able to establish prejudice, or that
trial counsel’s actions could not be justified as a part of any
plausible trial strategy. 32
Lang’s brief argues that her trial counsel was deficient
in three respects: (a) failing to preserve appellate review of
the court’s rulings on the competency motions, (b) failing
to move for a continuance, and (c) stipulating that evidence
received at the suppression hearing could be considered by the
court during the bench trial. We conclude the record is suffi-
cient to resolve all of Lang’s claims, and we find them all to
be meritless.
(a) Preserving Appellate Review
Lang argues that to preserve appellate review of the court’s
rulings on her motions for a competency evaluation, trial
counsel should have taken an immediate interlocutory appeal
from the court’s rulings. Lang is mistaken, as is perhaps best
illustrated by the fact that we reviewed those rulings in this
direct appeal.
[20] It is true that a proceeding to determine competency
to stand trial is a special proceeding within the meaning of
Neb. Rev. Stat. § 25-1902 (Reissue 2016) and that an order
finding an accused incompetent to stand trial and ordering the
accused confined until such time as he or she is competent is a
final order from which an appeal may be taken. 33 But no such
order was entered here, because competency proceedings were
deemed unnecessary by the court. The trial court’s decisions
overruling Lang’s motions for a competency evaluation were
not final, appealable orders, 34 and Lang’s trial counsel was
31
Id.
32
Id.
33
See State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).
34
See id.
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not deficient in waiting until direct appeal of the judgment to
assign error to those interlocutory rulings.
(b) Failing to Move
for Continuance
Lang argues her trial counsel performed deficiently when he
moved for competency evaluations prior to jury selection and
prior to trial, rather than moving to continue trial. She argues
that as between the two motions, “the correct motion was to
continue the trial, as it would be easier to prove.” 35 To prevail
on such a claim, Lang would need to show both that counsel’s
decision to move for a competency evaluation rather than a
continuance fell below an objective standard of reasonableness
and that if a motion to continue had been made, a reasonable
probability exists that the result of the trial would have been
different. 36 She can show neither.
[21] Trial counsel is afforded due deference to formu-
late trial strategy and tactics, and an appellate court will not
second-guess trial counsel’s reasonable strategic tactics when
reviewing claims of ineffective assistance of counsel. 37 As
such, counsel does not render deficient performance merely
by failing to present the motion that is “easier to prove.”
Moreover, Lang does not argue, and we see nothing in the
record, suggesting that if a motion to continue had been made
and sustained, the result of trial in this case would have been
any different. This claim has no merit.
(c) Stipulating to Evidence
Lang argues her trial counsel was ineffective for stipulating,
during the bench trial, that the court could consider evidence
received at the suppression hearing. The record affirmatively
refutes her claim that trial counsel performed deficiently in
this regard.
35
Brief for appellant at 16.
36
See State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
37
State v. Manijikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
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At the plea hearing, Lang told the court that in order to
preserve her right to appeal the suppression ruling, she wanted
to waive a jury and have a stipulated bench trial. At the time,
Lang’s counsel explained that Lang was asking to “try this
matter based upon the facts as submitted to the Court in the
hearing on the motion to suppress.” The court accepted Lang’s
jury waiver and proceeded directly to the stipulated bench trial.
As is typical in such a proceeding, trial counsel stipulated to
the admission of certain evidence while preserving the argu-
ments raised in the motion to suppress, then the district court
determined whether that evidence was sufficient to convict
Lang of the crime charged. 38
The record shows that Lang agreed to a stipulated bench
trial to preserve her right to appeal the suppression ruling and
that she did so after discussing this strategy with trial counsel
and with the understanding that counsel would stipulate to
the admission of the evidence received during the suppres-
sion hearing. On these facts, Lang cannot show trial counsel
performed deficiently in stipulating to that evidence during the
bench trial.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.
38
See, e.g., State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016); Howard,
supra note 10.