State v. Dorsey

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. DORSEY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
LOGAN R. DORSEY, APPELLANT.
Filed October 11, 2022. No. A-21-925.
Appeal from the District Court for Otoe County: JULIE D. SMITH, Judge. Affirmed.
Timothy S. Noerrlinger for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
PIRTLE, Chief Judge, and BISHOP and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Logan R. Dorsey was convicted in the district court for Otoe County of possession of
methamphetamine and possession of drug paraphernalia. The question pending before this court
is whether the district court erred in overruling Dorsey’s motion to suppress the evidence obtained
as a result of law enforcement’s search of his vehicle. We affirm the judgment of the district court.
BACKGROUND
On August 12, 2020, the State charged Dorsey with one count of possession of
methamphetamine in violation of Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2020), a Class IV
felony; one count of possession of one ounce or less of marijuana in violation of § 28-416(13), an
infraction; and one count of possession of drug paraphernalia in violation of Neb. Rev. Stat.
§ 28-441 (Reissue 2016), also an infraction.
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On September 22, 2020, Dorsey filed a motion to suppress any and all evidence obtained
by law enforcement as a result of the seizure of Dorsey and the subsequent search of his motor
vehicle. In the motion, Dorsey asserted that law enforcement did not have probable cause to search
his motor vehicle without a search warrant. He also alleged that the sheriff’s deputy who conducted
the search questioned him without first reading him his Miranda rights. The motion sought the
suppression of “all evidence illegally and improperly obtained by officers of the State. . . .” The
district court overruled the motion both as to the search and Dorsey’s statements. On appeal,
Dorsey only challenges the court’s finding that the search of the vehicle was supported by probable
cause.
A hearing on the motion to suppress was conducted on November 3, 2020. At the hearing,
Deputy Scott Whipple of the Otoe County Sheriff’s Office testified on behalf of the State. Dorsey
testified on his own behalf. Whipple’s body cam video was also received. The following relevant
evidence was adduced at the hearing:
Whipple is a deputy sheriff who had been employed with the Otoe County Sheriff’s Office
for approximately two years at the time of the suppression hearing. He had been a certified law
enforcement officer since April 2019. He had previously completed training regarding the
identification of controlled substances during his basic training at the Nebraska Law Enforcement
Training Center and in continuing education. During this training he received instruction on
identifying substances through both visual observation and smell. Whipple also received training
on the identification of drug paraphernalia, including pipes used to ingest methamphetamine,
marijuana, and THC wax.
On March 14, 2020, Whipple was conducting regular patrol and community policing duties
within Otoe County. Shortly after 11 p.m., Whipple was dispatched to a carwash in Syracuse,
Nebraska, to check on the welfare of a person who appeared to be asleep in a parked vehicle. The
reporting party stated that the person had been at the car wash for a period of time and did not
wake up when the party tried to wake him.
When Whipple arrived at the carwash, he pulled into the parking lot and observed the
vehicle backed into the middle bay of the car wash. He testified that he had previously seen this
vehicle parked in the same location when he drove by two hours earlier. Whipple got out of the
patrol car and approached the vehicle which was running. The video demonstrates that the
vehicle’s lights were on and the radio was audible, even with the doors and windows closed.
Whipple circled the car two times, shining his flashlight into the vehicle. Whipple noticed a lone
male sitting in the driver’s seat who appeared to be passed out or sleeping.
At no point to this juncture did Whipple see the occupant moving. When he looked through
the front driver’s side window to more closely examine the interior of the vehicle, he saw a glass
marijuana pipe in a storage compartment located to the left of the steering wheel. After observing
the glass pipe, Whipple tapped on the driver’s side window. The occupant woke up and opened
the door to speak to Whipple. Whipple testified that when the occupant opened the car door, he
immediately detected the odor of burnt marijuana.
Whipple inquired as to the occupant’s condition and then asked for license and registration.
Such documentation identified the occupant of the vehicle as Dorsey. The video demonstrates that
Whipple then told Dorsey that he had observed the marijuana pipe and asked him whether he had
been “smoking weed tonight.” Dorsey acknowledged the presence of the marijuana pipe and that
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he had smoked, but denied smoking anything that day. He contended that he was simply tired.
Whipple asked Dorsey to get out of his vehicle and patted him down. He then asked Dorsey to sit
in the front seat of his patrol vehicle. Whipple testified that at that point he believed he had
probable cause to search the vehicle because of his observation of the glass marijuana pipe and the
smell of burnt marijuana. Whipple testified that he told Dorsey that he had probable cause to search
his vehicle based on his observation of the pipe and the smell of burnt marijuana. The video reveals
that he only mentioned the pipe to Dorsey in justifying the search. However, during the hearing
Whipple testified several times that he smelled the odor of burnt marijuana. At trial, his report,
written shortly after the incident was received into evidence. It also recited that he detected the
odor of marijuana.
Prior to beginning his search of the vehicle, Whipple asked Dorsey if there was anything
else he would find in the car. Dorsey at first pled with Whipple not to search the vehicle. Whipple
explained that if the only item to be found was the marijuana pipe, Dorsey would be cited and
released. Dorsey thereafter directed Whipple to the top of the dashboard where he indicated he
would find a “dope pipe” wrapped in a bandana. When Whipple searched the vehicle, he located
the glass marijuana pipe that he had previously observed from outside the vehicle. In addition, on
top of the dashboard wrapped in the bandana was another pipe which he associated with
methamphetamine use. Whipple also found a small glass vial with a screw top in a storage
compartment which contained a white crystal substance that later tested positive for
methamphetamine. After finding these items, Whipple placed Dorsey into custody and transported
him to the Otoe County jail. The vehicle was towed.
On cross-examination, Whipple acknowledged that hemp and CBD are legal in Nebraska.
He also testified that he did not know whether the odor of CBD and hemp were similar to the smell
of burnt marijuana, but that he had previously identified marijuana pipes 10 to 15 times. He further
acknowledged that possession of drug paraphernalia and possession of less than an ounce of
marijuana are both infractions. The video does include a phone conversation between Whipple and
another deputy. Whipple reported that he detected no odor of alcohol “or anything” on the person
of Dorsey.
Dorsey testified that he had borrowed the vehicle from his aunt as his vehicle had broken
down. He explained that he was going to wash the car before returning it to her. He explained that
he had fallen asleep in the car prior to washing the car. Contrary to his statement to Whipple on
video, he denied that the glass pipe was used to smoke marijuana at all. He explained that he used
the pipe to smoke CBD. According to Dorsey, burnt CBD and burnt marijuana smell the same.
The district court ultimately overruled Dorsey’s motion to suppress. The court found that
Whipple’s initial contact with Dorsey came under the community caretaking doctrine because of
a report that someone was “passed out” or asleep in a vehicle. The district court also explained that
the warrantless search was allowed pursuant to the automobile exception to the warrant
requirement. Finally, the district court explained that Whipple had probable cause to search the
vehicle because he saw the marijuana pipe in plain view and detected the odor of marijuana when
Dorsey opened the door.
A stipulated bench trial was held on September 20, 2021. The district court found Dorsey
guilty on the charges of possession of methamphetamine and possession of drug paraphernalia. On
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November 15, 2021, he was sentenced to serve 18 months of probation for possession of
methamphetamine. In addition, he was fined $100 for possession of drug paraphernalia.
Dorsey now appeals to this court.
ASSIGNMENTS OF ERROR
On appeal, Dorsey assigns that the district court erred in overruling his motion to suppress.
However, he argues only the issue of probable cause to search the vehicle. He makes no argument
regarding the portion of his motion which sought suppression of his statements to Whipple. As
such, we address only the issue of whether his Fourth Amendment rights were violated by the
search conducted on his vehicle.
STANDARD OF REVIEW
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. State v. Perry,
292 Neb. 708, 874 N.W.2d 36 (2016). Regarding historical facts, we review the trial court’s
findings for clear error, but whether those facts trigger or violate Fourth Amendment protections
is a question of law that we review independently of the trial court’s determination. Id.In reviewing a motion to suppress, an appellate court does not reweigh the evidence or
resolve conflicts in the evidence, but rather, recognizes the trial court as the finder of fact and
considers that the trial court observed the witnesses testifying in regard to such motions. State v.
Martinez, 306 Neb. 516, 946 N.W.2d 445 (2020).
ANALYSIS
On appeal, Dorsey asserts that no probable cause existed for Whipple to search his vehicle.
Specifically, he asserts that Whipple’s body camera demonstrates that Whipple only told Dorsey
that he observed the marijuana pipe and that he told his colleague by telephone that he did not
“smell the odor of alcohol or anything.” Thus, in Dorsey’s view, Whipple’s testimony that he
smelled marijuana when he opened the car door was not credible. Dorsey further asserts that
Whipple’s observation of the glass pipe, standing alone, did not give Whipple probable cause to
search the vehicle. We disagree with Dorsey’s contention.
Both the U.S. and Nebraska Constitutions guarantee an individual the right to be free from
unreasonable searches and seizures. See, U.S. Const. amend. IV; Neb. Const. art. I § 7. Evidence
obtained as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must
be excluded. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020). Warrantless searches and
seizures are per se unreasonable under the Fourth Amendment, subject only to a few specifically
established and well-delineated exceptions, which must be strictly confined by their justifications.
State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
As a general rule, automobiles, including containers and packages found therein that may
contain the object of a search, may be searched without a warrant provided there is probable cause
to believe the vehicle contains contraband. See United States v. Ross, 456 U.S. 798, 102 S. Ct.
2157, 72 L. Ed. 2d 572 (1982). Under the automobile exception, a warrantless search of a vehicle
with probable cause is lawful so long as the vehicle is mobile. See State v. Seckinger, 301 Neb.
963, 920 N.W.2d 842 (2018).
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The Nebraska Supreme Court has held:
the requirement of ready mobility for the automobile exception is met whenever a vehicle
that is not located on private property is capable or apparently capable of being driven on
the roads or highways. This inquiry does not focus on the likelihood of the vehicle’s being
moved under the particular circumstances and is generally satisfied by the inherent
mobility of all operational vehicles. It does not depend on whether the defendant has access
to the vehicle at the time of the search or is in custody, nor on whether the vehicle has been
impounded. The purpose of the ready mobility requirement is to distinguish vehicles on
public property from fixed, permanent structures, in which there is a greater reasonable
expectation of privacy.
State v. Rocha, 295 Neb. 716, 755, 890 N.W.2d 178, 207 (2017).
In the present case, Dorsey was in the driver’s seat of a running vehicle at the time Whipple
approached. Thus, the automobile exception applies and we focus on whether probable cause
existed to search the vehicle.
Probable cause is a flexible standard which depends on the totality of the circumstances.
State v. Seckinger, supra. It does not demand any showing that such a belief be correct or more
likely true than false. State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013). Nor does it require the
same type of specific evidence of each element of an offense as would be needed to support a
conviction. State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973). What is required is a “fair
probability” that contraband or evidence of a crime will be found. State v. Goynes, 303 Neb. 129,
139, 927 N.W.2d 346, 353 (2019), cert denied Goynes v. Nebraska, ___ U.S. ___, 140 S. Ct. 545,
205 L. Ed. 2d 345. 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. State v. Rocha, supra.In State v. Seckinger, supra, the Supreme Court explained that because of marijuana’s
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. The Supreme Court further explained that although there
may be innocent explanations for the odor of marijuana inside a vehicle, the concept of probable
cause is based on probabilities and does not require officers to rule out all innocent explanations
for suspicious facts. Id.In the present case, we find, based on the totality of circumstances, Whipple had a fair or
reasonable belief that contraband or evidence of a crime would be found in the vehicle. Whipple
first observed Dorsey’s vehicle parked in the carwash approximately two hours before his welfare
check. A reporting party informed dispatch that a person was in the driver’s seat but was
unresponsive. When Whipple arrived at the scene, the vehicle had not moved and was still running.
Whipple observed Dorsey to be sleeping or passed out in the driver’s seat. Prior to waking Dorsey
up, Whipple observed a glass pipe that, in his experience, was consistent with being used to smoke
marijuana. Upon being awakened, Dorsey admitted to Whipple that the pipe Whipple had seen
was one which had been used to smoke “weed,” but that he had not smoked it that day. When
Dorsey opened his door, Whipple immediately smelled an odor of burnt marijuana. Finally, prior
to Whipple initiating the search, Dorsey begged him not to search, but then directed him to where
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he would find a second “dope pipe.” These circumstances, considered together were clearly
sufficient to establish probable cause to search Dorsey’s vehicle.
Dorsey argues that additional circumstances negate a probable cause finding. First, he
questions whether Whipple actually detected the odor of marijuana. He notes first, that although
Whipple says he told Dorsey at the scene that he smelled marijuana, the video demonstrates that
he did not. Moreover, he points to Whipple’s telephonic statement to a colleague that he did not
smell alcohol or anything on Dorsey as negating that he ever smelled an odor of marijuana at all.
In the alternative, Dorsey argues that even if Whipple noted an odor consistent with marijuana,
evidence was adduced at the suppression hearing indicating that any odor detected was CBD, a
legal substance. At the suppression hearing, Dorsey testified that he did not use the pipe to smoke
marijuana but rather he used it to smoke CBD. Dorsey thus contends that even if Whipple detected
an odor of marijuana, an innocent explanation of that odor existed which negated probable cause.
We address Dorsey’s arguments in reverse order. We first note that at the scene, Dorsey
never contended that the pipe initially seen by Whipple was only used to smoke legal substances.
In fact, Dorsey admitted to Whipple shortly after being contacted that he smoked “weed” but had
not smoked it that night. He did not further define “weed” to mean CBD. Whipple was not required
to rule out all innocent explanations for suspicious facts before making his decision to search.
Moreover, Whipple testified that he smelled burnt marijuana when the vehicle door
opened. He also completed a police report to the same effect. We agree that contrary to his
testimony, Whipple did not inform Dorsey that he had smelled an odor of burnt marijuana.
Whipple admitted, however, that he had not reviewed the video prior to testifying. With regard to
his telephonic statement that he did not smell alcohol “or anything,” this statement appears to relate
to whether there was any odor on or about Dorsey’s person as opposed to from the interior of the
vehicle. In any event, these issues relate to the credibility to be accorded to Whipple’s testimony.
Given our standard of review, we do not reweigh or resolve conflicts in the evidence, but defer to
the determination of the district court who had the opportunity to observe the witnesses and weigh
their credibility. The district court clearly found Whipple’s testimony to be credible. We find
nothing in Dorsey’s arguments that would prevent the district court from finding that probable
cause existed to search Dorsey’s vehicle.
CONCLUSION
Based on the totality of the circumstances, we find that probable cause existed for Whipple
to believe that contraband or evidence of a crime would be located in Dorsey’s vehicle at the time
he conducted his search. As such the district court did not err in overruling Dorsey’s motion to
suppress.
AFFIRMED.
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