Omaha marijuana defense attorney Tom Petersen explains that the Nebraska Supreme Court recently upheld a lower court’s ruling that allowed the warrantless search of a vehicle which ultimately resulted in the discovery and seizure of methamphetamine. At issue was whether the legalization of marijuana in nearby Colorado should change the standards for conducting such a search in Nebraska.
State v. Seckinger involved a 2017 traffic stop in Gering, Nebraska which was initiated by a Nebraska State Trooper after the trooper watched a vehicle accelerate into an intersection in front of her and nearly cause an accident. When the trooper approached the vehicle to conduct a traffic stop, she claims that she smelled burned marijuana. The driver, Kathy Seckinger, denied that there was marijuana in the vehicle or that marijuana had ever been in the car, and said she would not consent to a search. The Trooper had the driver exit the vehicle and conducted a search anyway. Although no marijuana was found during the search the Trooper did find four grams of methamphetamine. Seckinger was arrested and charged with a 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. The trial court did not agree and denied the motion to suppress. At trial, Seckinger’s attorney renewed the objection to the search of the vehicle. Seckinger was found guilty at trial and sentenced to two years of probation. She also appealed the court’s decision to allow the search the vehicle.
She appealed based on what she maintained was an unreasonable search. Among the arguments she raised was that the legalization of marijuana in nearby Colorado had “eroded the legal premise” for conducting a warrantless search because “the odor of marijuana standing alone no longer suggests criminal activity.”
Current state law allows a law enforcement officer to conduct a search of a vehicle without seeking a judge’s permission if they reasonably believe that contraband or evidence of a crime will be found. For decades, searches by officers with sufficient training who smelled marijuana coming from a vehicle have been allowed to search under the automobile exception to the warrant requirement.
The ruling, written by Supreme Court Judge Stephanie Stacy, rejected the argument by Seckinger’s attorney, deputy Scotts Bluff County Public Defender Darin Knepper, that the standard for searches should be changed because of the legalization of recreational marijuana in Colorado. Obviously, the judge pointed out, marijuana remains a controlled substance under both Nebraska and federal law. Moreover, the court stated that “while 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.” Even in states that have legalized pot for medicinal or recreational use, Stacy wrote, many courts continue to recognize that “marijuana is contraband and that the odor of marijuana can provide probable cause to search a vehicle.”
How to Handle a Request to Search Your Vehicle
The defendant in the Seckinger case ultimately lost her challenge of the search of her vehicle; however, the case does still illustrate why you should never consent to a search. Had the defendant consented, her attorney would not have even had the opportunity to challenge the legality of the search. By refusing to consen.t to the search, it leaves the defense the option to question the legality of a search. If a motion to suppress is successful, the evidence seized as a result of the search becomes inadmissible at trial, often forcing the State to dismiss the charges against a defendant.
Contact an Omaha Marijuana Defense Attorney at Petersen Law Office
If you have been charged with a marijuana-related offense in the State of Nebraska, consult with an experienced Omaha marijuana defense attorney at Petersen Law Office as soon as possible to discuss your legal options. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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