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STATE v. SECKINGER

Cite as 301 Neb. 963

State of Nebraska, appellee, v.

Kathy A. Seckinger, appe

___ N.W.2d ___

Filed December 28, 2018. No. S-17-1099.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, giving due weight to the inferences drawn from those facts by the 

trial judge. But whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Constitutional Law: Search and Seizure. Both the Fourth Amendment 

to the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures.

3. ____: ____. Under the Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution, the ultimate touchstone is 

one of reasonableness.

4. Constitutional Law: Search and Seizure: Warrantless Searches. 

Pursuant to the Fourth Amendment to the U.S. Constitution and article 

I, § 7, of the Nebraska Constitution, searches and seizures must not be 

unreasonable, and searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated 

exceptions.

5. Search and Seizure: Warrantless Searches: Motor Vehicles. Among 

the established exceptions to the warrant requirement is the automobile 

exception.

6. Search and Seizure: Warrantless Searches: Probable Cause: Motor 

Vehicles. The automobile exception to the warrant requirement applies 

when a vehicle is readily mobile and there is probable cause to believe 

that contraband or evidence of a crime will be found in the vehicle.

Nebraska Supreme Court Online Library

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

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7. Motor Vehicles: Words and Phrases. A vehicle is readily mobile 

whenever it is not located on private property and is capable or apparently capable of being driven on the roads or highways.

8. Search and Seizure: Probable Cause: Words and Phrases. Probable 

cause to search requires that the known facts and circumstances are 

sufficient to warrant a person of reasonable prudence in the belief that 

contraband or evidence of a crime will be found.

9. Search and Seizure: Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective 

standard of reasonableness, given the known facts and circumstances, 

but appellate courts should avoid an excessively technical dissection of 

the factors supporting probable cause.

10. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard that depends on the totality of the 

circumstances.

11. ____: ____. The concept of probable cause, as the name implies, is 

based on probabilities. It requires only a probability or substantial 

chance of criminal activity, not an actual showing of such activity.

12. Probable Cause: Police Officers and Sheriffs. To find probable cause, 

officers are not required to rule out all innocent explanations for suspicious facts.

13. Probable Cause: Police Officers and Sheriffs: Motor Vehicles. 

Probable cause may result from any of the senses, and an officer is 

entitled to rely on his or her sense of smell in determining whether contraband is present in a vehicle.

14. Search and Seizure: Probable Cause: Police Officers and Sheriffs: 

Motor Vehicles: Controlled Substances. Objectively, the smell of 

burnt marijuana tells a reasonable officer that one or more persons in a 

vehicle recently possessed and used the drug. The officer need not know 

whether the amount possessed is more than 1 ounce in order to have 

probable cause to suspect criminal activity in the vehicle.

15. Search and Seizure: Warrantless Searches: Probable Cause: Police 

Officers and Sheriffs: Motor Vehicles. When an officer with sufficient 

training and experience detects the odor of marijuana emanating from a 

vehicle that is readily mobile, the odor alone furnishes probable cause 

to suspect contraband will be found in the vehicle and the vehicle may 

be lawfully searched under the automobile exception to the warrant 

requirement.

Appeal from the District Court for Scotts Bluff County: Le

P. Dobrovolny, Judge. Affirm
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Darin J. Knepper, Deputy Scotts Bluff County Public 

Defender, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Stacy, 

NATURE OF CASE

Kathy A. Seckinger appeals her felony conviction for possession of methamphetamine. She assigns error to the denial 

of a motion to suppress evidence seized during a warrantless 

search of her car and argues that the smell of marijuana coming from inside the car did not provide sufficient probable 

cause to support the search. We affirm the judgment of the 

district court.

BACKGROUND

On January 9, 2017, a Nebraska State Patrol trooper was 

on patrol in Gering, Nebraska, when a green car accelerated 

into an intersection directly in front of her. The trooper and 

another motorist had to brake hard to avoid an accident, and 

the trooper initiated a traffic stop. The stop and the events 

immediately preceding it were recorded on the trooper’s dashboard camera.

When the trooper approached the driver’s side to make 

contact, she noticed the odor of burnt marijuana coming from 

inside the car. The driver was identified as Seckinger. The 

trooper confronted Seckinger about the smell and asked if 

there was marijuana in the car. Seckinger said no, but volunteered that she had recently smoked a cigarette. The trooper 

repeated that she smelled marijuana and asked Seckinger if 

she had been around anyone smoking marijuana; Seckinger 

said she had not. Finally, the trooper asked if there might 

have been marijuana in the car previously. Seckinger again 
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responded no and added that she would not consent to 

a search.

The trooper had Seckinger step out of the car and conducted a search. No marijuana was found in the car, but the 

trooper discovered more than 4 grams of methamphetamine. 

Seckinger was placed under arrest and charged with the 

Class IV felony of knowingly or intentionally possessing 

methamphetamine. She entered a plea of not guilty and moved 

to suppress the evidence found during the search, arguing 

there was no probable cause for either the traffic stop or the 

search of her car.

At the hearing on the motion to suppress, the trooper and 

Seckinger were the only witnesses to testify. They both testified about the odor of marijuana, but their testimony differed 

considerably. On direct examination by her attorney, Seckinger 

denied there was any odor of marijuana coming from her car 

when it was stopped: “[Counsel:] Does the interior of your car 

smell like marijuana? [Seckinger:] No. Q. Did it ever smell 

like marijuana? A. No. Q. Why not? A. There has not been 

no marijuana in my vehicle at all. Q. Do you use marijuana? 

A. No.”

In contrast, the trooper testified she noticed the distinctive 

odor of marijuana emanating from the car as soon as she contacted the driver. The trooper testified she received academy 

training on detecting the odor of marijuana and also testified 

about her experience detecting the smell of burnt and raw 

marijuana during prior traffic stops. The trooper explained 

that Seckinger’s car was stopped because it pulled across four 

lanes of traffic and nearly caused an accident, and based on the 

trooper’s experience, drivers who “do that kind of thing” are 

sometimes impaired by alcohol or drugs. Consequently, when 

the trooper smelled marijuana coming from inside the car, she 

decided there was probable cause to search it.

After considering the evidence, the district court overruled 

Seckinger’s motion to suppress. The court found that both the 
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traffic stop and the subsequent search of the car were supported by probable cause. In finding probable cause to search 

the car, the court relied on our opinion in State v. Watts1 for 

the proposition that the smell of marijuana, standing alone, 

has long been held to furnish probable cause for a warrantless 

search of a motor vehicle where there is sufficient foundation 

as to the expertise of the officer in recognizing the smell. The 

court found the trooper had expertise in detecting the odor of 

marijuana and found credible her testimony that she smelled 

marijuana coming from inside Seckinger’s car during the traffic stop.

After the motion to suppress was overruled, a bench trial 

was held on stipulated facts. Seckinger did not renew her 

objection to the legality of the traffic stop, but did renew her 

objection to the search of her car. That objection was overruled, 

and Seckinger was found guilty of possession of methamphetamine. She was sentenced to 2 years’ probation and ordered to 

pay court costs. Seckinger filed a timely appeal, and we moved 

the case to our docket on our own motion.2

ASSIGNMENT OF ERROR

Seckinger assigns error to the overruling of her motion to 

suppress, arguing the odor of marijuana standing alone no 

longer provides probable cause to search a vehicle.

STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review.3

Regarding historical facts, an appellate court reviews the 

trial court’s findings for clear error, giving due weight to the 

1 State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).

2 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

3 State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
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inferences drawn from those facts by the trial judge.4 But 

whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews 

independently of the trial court’s determination.5

ANALYSIS

On appeal, Seckinger does not challenge the legality of 

the stop, the duration of the investigation, or the scope of the 

subsequent search. Nor does she challenge the trial court’s factual finding that, during the investigation, the trooper detected 

the odor of marijuana emanating from inside Seckinger’s 

car. The sole issue on appeal is whether the odor of marijuana, standing alone, furnished probable cause to support the 

warrantless search of Seckinger’s car. We limit our analysis 

accordingly, and begin with a review of the governing constitutional principles.

[2-5] Both the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution guarantee 

against unreasonable searches and seizures.6 The ultimate 

touchstone is one of reasonableness.7

 Searches and seizures 

must not be unreasonable, and searches without a valid warrant are per se unreasonable, subject only to a few specifically 

established and well-delineated exceptions.8 Among the established exceptions to the warrant requirement is the “‘automobile exception.’”9

[6,7] The automobile exception to the warrant requirement applies when a vehicle is readily mobile and there is 

4 See, id.; State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

5 Thalken, supra note 3.

6 See, State v. Barbeau, ante p. 293, 917 N.W.2d 913 (2018); State v. 

Dalland, 287 Neb. 231, 842 N.W.2d 92 (2014).

7 See Rocha, supra note 4.

8 Id.

9 Id. at 746, 890 N.W.2d at 202. Accord California v. Carney, 471 U.S. 386, 

105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985).
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probable cause to believe that contraband or evidence of 

a crime will be found in the vehicle.10 A vehicle is readily 

mobile whenever it is not located on private property and “is 

capable or apparently capable of being driven on the roads 

or highways.”11

[8-12] Probable cause to search requires that the known 

facts and circumstances are sufficient to warrant a person of 

reasonable prudence in the belief that contraband or evidence 

of a crime will be found.12 An appellate court determines 

whether probable cause existed under an objective standard 

of reasonableness, given the known facts and circumstances, 

but appellate courts should avoid an excessively technical dissection of the factors supporting probable cause.13 Probable 

cause is a flexible, commonsense standard that depends on the 

totality of the circumstances.14 The concept of probable cause, 

as the name implies, is based on probabilities.15 It “‘requires 

only a probability or substantial chance of criminal activity, not 

an actual showing of such activity.’”16 Thus, to find probable 

cause, officers are not required to rule out all innocent explanations for suspicious facts.17

For decades, this court has consistently held that officers 

with sufficient training and experience who detect the odor 

of marijuana emanating from a vehicle have probable cause 

on that basis alone to search the vehicle under the automobile 

10 See Rocha, supra note 4.

11 Id. at 755, 890 N.W.2d at 207.

12 J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013).

13 State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).

14 See id.

15 See Illinois v. Gates, 462 U.S. 213, 231, 103 S. Ct. 2317, 76 L. Ed. 2d 527 

(1983) (“‘[i]n dealing with probable cause . . . as the very name implies, 

we deal with probabilities’”).

16 District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 586, 199 L. 

Ed. 2d 453 (2018).

17 See Botts, supra note 13 (citing Wesby, supra note 16).
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exception to the warrant requirement.18 We first articulated this 

rule in the 1977 case State v. Benson.19

In Benson, a van pulling a trailer was stopped after troopers noticed an irregularity on the van’s license plate. During 

the investigation, one trooper detected the strong smell of 

marijuana coming from the trailer. The trooper asked the 

van’s driver to open the trailer, but the driver claimed not to 

know the lock combination. The trooper called the county 

attorney’s office to obtain a search warrant and was told no 

warrant was needed. The trooper then searched the trailer 

and discovered 119 pounds of marijuana. We upheld the constitutionality of the warrantless search, reasoning that “[t]he 

great majority of courts which have currently passed upon 

the issue have held that the smell of marijuana was alone 

sufficient to furnish probable cause to search a vehicle without a warrant, at least where there is sufficient foundation as 

to expertise.”20

[13] A few years later in State v. Daly,

21 we reiterated the 

rule that the odor of marijuana coming from a vehicle is sufficient standing alone to furnish probable cause to search the 

vehicle. In Daly, a pickup was stopped by a trooper for speeding. While walking around the pickup, the trooper smelled the 

odor of marijuana coming from the bed of the pickup, which 

was covered by a fiberglass shell. The trooper confronted the 

driver about the marijuana smell, but the driver denied there 

was marijuana in the pickup and declined consent to search. 

A warrantless search revealed 582 pounds of marijuana in 

18 See, e.g., Watts, supra note 1; State v. Ruzicka, 202 Neb. 257, 274 N.W.2d 

873 (1979); State v. Daly, 202 Neb. 217, 274 N.W.2d 557 (1979); State 

v. Kretchmar, 201 Neb. 308, 267 N.W.2d 740 (1978), overruled on other 

grounds 203 Neb. 663, 280 N.W.2d 46 (1979); State v. Benson, 198 Neb. 

14, 251 N.W.2d 659 (1977). Accord State v. Reha, 12 Neb. App. 767, 686 

N.W.2d 80 (2004).

19 Benson, supra note 18.

20 Id. at 18, 251 N.W.2d at 661-62.

21 Daly, supra note 18.
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the rear of the pickup. In affirming the trial court’s finding of 

probable cause to search the pickup, we noted the trooper had 

received basic training on detecting the smell of marijuana and 

had arrested more than 50 drivers for possession of marijuana 

after smelling it during a traffic stop. We quoted our holding 

in Benson and emphasized that probable cause may result from 

any of the senses and that an officer is entitled to rely on his or 

her sense of smell in determining whether contraband is present in a vehicle.22

We adhered to this reasoning in State v. Ruzicka.23 There, 

a truck was stopped by a trooper for a broken taillight. While 

standing at the drivers’ window, the trooper noticed the smell 

of burnt marijuana coming from the driver’s compartment. The 

trooper asked permission to search, and the driver refused. A 

warrantless search of the truck revealed marijuana, methamphetamine, and LSD. On appeal, the driver argued the smell of 

burnt marijuana coming from the driver’s compartment was not 

sufficient to provide probable cause to search the entire truck. 

We upheld the constitutionality of the search, observing that 

“[i]n a number of cases we have held that the odor of marijuana coming from a vehicle is sufficient to furnish probable 

cause for a search of the vehicle.”24 We expressly rejected the 

suggestion that smelling burnt marijuana in the driver’s compartment should have limited the scope of the search, explaining, “We know of no reason why there should be a distinction 

between the odor of burned and unburned marijuana in this 

type of situation.”25

In State v. Watts,

26 a driver was stopped by a trooper for 

speeding. While standing outside the open driver’s window, 

the trooper detected the smell of burnt marijuana. The trooper 

22 Id.

23 Ruzicka, supra note 18.

24 Id. at 258, 274 N.W.2d at 875.

25 Id. at 258-59, 274 N.W.2d at 875.

26 Watts, supra note 1.
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asked whether there was marijuana in the vehicle, and the 

driver answered there was not. The trooper asked permission 

to search the vehicle, and the driver declined. The trooper then 

looked into the back seat of the vehicle and observed in plain 

view a plastic bag of marijuana. The driver was arrested, and 

the rest of the vehicle was searched. In the trunk, the trooper 

discovered three large trash bags containing a total of 60 

pounds of marijuana. On appeal, we upheld the constitutionality of the warrantless search. We began our analysis by discussing the U.S. Supreme Court cases recognizing the automobile 

exception to the warrant requirement. We then discussed our 

prior holdings on the smell of marijuana emanating from automobiles, stating:

We have constantly held that the smell of marijuana, 

standing alone, is sufficient to furnish probable cause for 

the warrantless search of a motor vehicle where, as here, 

there was sufficient foundation as to the expertise of the 

officer. . . . We have further held the odor of burned marijuana coming from the driver’s compartment of a truck 

was sufficient probable cause to search the truck.27

The driver in Watts conceded that under our prior cases, 

the trooper had probable cause to search the vehicle, but 

he argued that once the trooper discovered the small bag of 

marijuana in plain view in the back seat, he could search no 

further without additional facts to suggest marijuana might 

be found in the trunk. We soundly rejected this argument, 

reasoning:

[I]t [is] just as logical to conclude that the finding of the 

small amount of marijuana in the passenger compartment, after being told by the defendant that none existed, 

simply served to substantiate the officer’s suspicions 

and furnish additional probable cause to make a complete search of the automobile. Having found a quantity 

of illicit drugs in one part of the automobile does not 

27 Id. at 374, 307 N.W.2d at 819.
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sensibly suggest the probability that no more such substance is present.28

In the instant appeal, Seckinger asks us to revisit this line of 

cases. Her primary contention is that the legalization of marijuana in Colorado has eroded the legal premise of our precedent because, she contends, the odor of marijuana standing 

alone no longer suggests criminal activity. Thus, the question 

presented here is a narrow one: Does the odor of marijuana 

coming from a vehicle, standing alone, still provide probable 

cause to search the vehicle? We conclude it does.

Before explaining our reasoning, we pause to observe that 

much of Seckinger’s brief is devoted to suggesting there could 

have been several noncriminal explanations for the odor of 

marijuana in her car. But none of the suggested explanations 

are supported by the record. Indeed, when the trooper confronted her about smelling marijuana, Seckinger offered no 

explanation at all—legal or otherwise—and simply denied the 

odor was present. But regardless of the explanation given to the 

trooper, we are unpersuaded by Seckinger’s legal argument on 

appeal. We find no merit to her suggestion that recent changes 

in Colorado’s marijuana laws compel a change in Nebraska’s 

settled jurisprudence.

First, we state the obvious: Marijuana remains a controlled substance under both federal law29 and Nebraska law.30

Because of marijuana’s legal status as contraband, a trained 

officer who detects the odor of marijuana emanating from a 

vehicle in Nebraska has firsthand information that provides 

an objectively reasonable basis to suspect contraband will be 

found in the vehicle. Assuming the vehicle is readily mobile, 

the odor of marijuana alone provides probable cause to search 

28 Id.

29 See, 21 U.S.C. § 812(c) (2012); Gonzales v. Raich, 545 U.S. 1, 27, 125 

S. Ct. 2195, 162 L. Ed. 2d 1 (2005) (recognizing federal law “designates 

marijuana as contraband for any purpose”).

30 See Neb. Rev. Stat. §§ 28-405(c)(7) and 28-416(11) through (13) (Supp. 

2017).
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the vehicle under the automobile exception to the warrant 

requirement.31 And while there may be innocent explanations for the odor of marijuana inside a vehicle, the concept 

of probable cause is based on probabilities32 and does not 

require officers to rule out all innocent explanations for suspicious facts.33

Moreover, similar to Nebraska courts, most state and federal courts agree that the odor of marijuana alone furnishes 

probable cause for a warrantless search of the vehicle from 

which the odor emanates.34 Even among states that have passed 

laws allowing medical or recreational marijuana use, many 

courts continue to recognize that marijuana is contraband and 

that the odor of marijuana can provide probable cause to 

search a vehicle.35

31 See Watts, supra note 1.

32 See Gates, supra note 15.

33 See Botts, supra note 13.

34 See, Annot., 114 A.L.R. 5th 173, §§ 5, 7, and 9 (2003) (and cases cited 

therein); Annot., 188 A.L.R. Fed. 487, § 7 (2003) (and cases cited therein). 

Accord 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth 

Amendment § 3.6(b) (5th ed. 2012) (recognizing it is generally accepted 

that smell of marijuana, whether raw or burnt, is sufficiently distinctive to 

afford probable cause to search particular place from which odor emanates).

35 See, e.g., Robinson, Williams & Spriggs v. State, 451 Md. 94, 152 A.3d 

661 (2017) (despite decriminalization of less than 10 grams of marijuana, 

marijuana remains contraband and odor of marijuana emanating from 

vehicle provides probable cause to search vehicle); State v. Cheatham, 

240 Ariz. 1, 375 P.3d 66 (2016) (although Arizona Medical Marijuana 

Act created limited exception to laws proscribing marijuana, odor of 

marijuana alone supports probable cause to search car unless totality of 

circumstances suggest marijuana possession complies with act); People v. 

Zuniga, 372 P.3d 1052 (Colo. 2016) (despite California’s legalization of 1 

ounce or less of marijuana, odor of marijuana still relevant to totality of 

circumstances test and can contribute to probable cause determination); 

United States v. White, 732 Fed. Appx. 597 (9th Cir. 2018) (despite 

Nevada’s legalization of medical marijuana, smell of marijuana emanating 

from vehicle still provides probable cause for warrantless search because 

nonmedical marijuana remains contraband).
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[14] Finally, Seckinger’s argument is similar to one we 

recently rejected in State v. Perry.

36 In Perry, we were concerned with whether there was probable cause to arrest the 

occupants of the vehicle and not whether there was probable 

cause to search the vehicle. But similar to Seckinger’s argument, the defendant’s argument in Perry was that our line of 

cases analyzing probable cause based on the odor of marijuana 

was no longer good precedent. In Perry, the defendant argued 

the cases analyzing the odor of marijuana had been decided at 

a time when the possession of any amount of marijuana was a 

crime; because possession of less than an ounce of marijuana is 

now an infraction under Nebraska law,37 the defendant in Perry

suggested the smell of marijuana alone no longer furnished 

probable cause to suspect criminal activity in the vehicle. We 

rejected this argument and concluded the change in penalty 

was immaterial to our probable cause jurisprudence, reasoning:

Objectively, the smell of burnt marijuana tells a reasonable officer that one or more persons in the vehicle 

recently possessed and used the drug. The officer need 

not know whether the amount possessed is more than 1 

ounce in order to have probable cause to suspect criminal 

activity in the vehicle.38

[15] Similarly, we reject Seckinger’s suggestion that a 

change in other states’ criminal laws regarding marijuana are 

material to the probable cause holdings announced in Benson, 

Daly, Ruzicka, and Watts. We instead adhere to these holdings 

and reiterate the general rule that when an officer with sufficient training and experience detects the odor of marijuana 

emanating from a vehicle that is readily mobile, the odor alone 

furnishes probable cause to suspect contraband will be found 

in the vehicle and the vehicle may be lawfully searched under 

the automobile exception to the warrant requirement.

36 State v. Perry, 292 Neb. 708, 874 N.W.2d 36 (2016).

37 See § 28-416(13).

38 Perry, supra note 36, 292 Neb. at 722, 874 N.W.2d at 46.
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Here, the trooper testified credibly that she smelled marijuana emanating from inside Seckinger’s car during a traffic 

stop. The trooper had training and experience in detecting the 

odor of marijuana, and Seckinger’s car was readily mobile 

when it was searched. On this record, we agree with the district court that the odor of marijuana coming from inside the 

car furnished probable cause to suspect contraband would be 

found in the car, and we conclude the warrantless search of 

the car was lawful under the automobile exception to the warrant requirement. Seckinger’s motion to suppress was properly overruled.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed