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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 historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment protection 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 insufficient 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 addressing 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/29/2020 12:07 AM CDT
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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.

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 warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Among the established exceptions 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 vehicle 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 conceal 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 examination of the accused to be made as it deems necessary.

14. Mental Competency. An explicit competency determination is necessary 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.

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 rational defense.
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16. Mental Competency. 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.

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 determining factor is whether the record is sufficient to adequately review the 

question. 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.

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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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 passenger was Lang.

Renz gathered Fristoe’s information and returned to his 

patrol car to run a record check and complete a traffic citation. 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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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 investigation, Marcello searched Lang’s purse and discovered a green 

leafy substance in a baggie that field-tested positive for marijuana, 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 substance, methamphetamine (a Class IV felony); (2) possession 

of marijuana, less than an ounce (an infraction); and (3) possession 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 unconstitutional search. At the suppression hearing, both Renz and 

Marcello testified to the events as summarized above. In addition, 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 overruled 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 warrantless search of the vehicle and containers in the vehicle, 

including Lang’s purse. The court found Marcello’s testimony 
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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 saying,” 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 medication. 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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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 selection 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 permission, 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 anyone else. Do you understand that?

THE DEFENDANT: Yeah.

THE COURT: Ms. Lang, will you control yourself during the courtroom proceedings?

THE DEFENDANT: I can try my best. I apologize.

THE COURT: Ms. Lang, are there any accommodations 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 statements, from some traumatic issues that don’t involve 

this case.
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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 sequestration, 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 yesterday. 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 evaluation from December 2014 conducted as part of Lang’s workers’ 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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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 reaction, 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 communicate 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 participating 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 observations 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 understanding 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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(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 evidence seized from Lang’s purse on the ground it was obtained 
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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 crystalline 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 psychological testing performed on September 18, 2018, which 

generally agreed with the diagnoses set forth in exhibit 10 and 
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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 acknowledged 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 understood 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) overruling 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 suppress 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 trigger 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 appellate 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 support the finding. 3 A trial court’s decision not to order a competency 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 completed 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 investigative 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 citation 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 necessary 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 exception 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 without 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 containers 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 developed 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 selection, before the presentation of evidence, and before sentencing. 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 psychological examination of the accused to be made as it deems 

necessary. 22 But an explicit competency determination is necessary 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 interact 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 sufficient 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 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. 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 arguments 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 suppression 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.