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Cite as 20 Neb. App. 905

relevant evidence. The referee erred in excluding evidence 

of expenses, and the district court abused its discretion to the 

extent it adopted the referee’s findings.

V. CONCLUSION

We conclude that the referee who conducted the hearing in 

this case erred in granting Vanessa’s motion for directed verdict, because there was clearly sufficient evidence adduced to 

prevent judgment as a matter of law. We also conclude that the 

referee erred in excluding clearly relevant evidence. As such, 

the district court abused its discretion in adopting the referee’s 

recommendations and dismissing Benjamin’s application for 

modification on the basis of a motion for directed verdict. We 

reverse, and remand for further proceedings.

 Reversed and remanded for

further proceedings.

State of Nebraska, appellee, v. 

Roger L. Dalland, appellant.

___ N.W.2d ___

Filed June 25, 2013. No. A-12-615.

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 of fact for clear error, but whether those facts trigger or violate 

Fourth Amendment protections is a question of law that it reviews independently 

of the trial court’s determination.

2. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. 

Constitution and article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures.

3. Motor Vehicles: Warrantless Searches: Probable Cause. A warrantless search 

of a vehicle is permissible upon probable cause that the automobile contains 

contraband.

4. Police Officers and Sheriffs: Probable Cause. A law enforcement officer has 

probable cause to search when it is objectively reasonable.

5. Search and Seizure. A search is objectively reasonable when known facts and 

circumstances are sufficient to warrant a person of reasonable prudence in the 

belief that he will find contraband or evidence of a crime.
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6. Probable Cause. Probable cause depends on the totality of the circumstances.

7. Police Officers and Sheriffs: Probable Cause. If contraband is seen or smelled, 

the officer is not required to close his eyes or nostrils, walk away, and leave the 

contraband where he sees or smells it.

8. Police Officers and Sheriffs: Motor Vehicles: Warrantless Searches: Probable 

Cause. While an officer need not walk away from contraband where he sees or 

smells it, the scope of a warrantless search of an automobile is limited to the 

places where there is probable cause to believe particular contraband might 

be found.

9. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: 

Probable Cause. The Fourth Amendment’s requirement that an officer have 

probable cause before conducting a warrantless search does not allow police 

officers to make guesses about where evidence might be located.

10. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double 

Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence 

admitted by a trial court, whether erroneously or not, would have been sufficient 

to sustain a guilty verdict.

Appeal from the District Court for Hamilton County: 

Michael J. Owens, Judge. Reversed and remanded for a 

new trial.

Michael P. Kneale, of Bradley, Elsbernd, Andersen, Kneale 

& Mues Jankovitz, P.C., for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for 

appellee.

Sievers, Pirtle, and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

This appeal raises one primary issue: Does the odor of marijuana emanating from a person inside a building give a police 

officer probable cause to search that person’s vehicle once he 

enters it? We find it does not. Accordingly, we reverse Roger 

L. Dalland’s conviction for possession of methamphetamine 

and remand the cause for a new trial.

BACKGROUND

In May 2011, Dalland received a call from Deputy Aaron 

Smith asking him to come to the law enforcement center in 

Aurora, Nebraska, for an interview to discuss “irrigation pipe 

thefts.” While Dalland was at the law enforcement center, 
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STATE v. DALLAND 907

Cite as 20 Neb. App. 905

Cpl. Chad Mertz walked by Dalland and “immediately could 

smell an overwhelming odor of burnt marijuana.” By the time 

Mertz was ready to make contact with him, however, Dalland 

had left the law enforcement center and was seated outside in 

his vehicle. Mertz approached the vehicle, and upon request, 

Dalland got out and Mertz performed a pat-down search. 

Finding nothing, Mertz then searched Dalland’s vehicle. While 

searching the vehicle, Mertz found needles that contained 

trace amounts of methamphetamine.

A complaint filed in the Hamilton County Court alleged that 

Dalland had possessed a controlled substance. He was bound 

over to district court, and an indictment charging him with 

possession of a controlled substance was filed. In the course of 

the proceedings, Dalland filed a motion to suppress to exclude 

any evidence seized when Mertz searched his vehicle. In his 

motion, Dalland argued that Mertz violated his constitutional 

rights by illegally searching his vehicle.

At the hearing on the motion to suppress, the following testimony was adduced:

Dalland was with his girlfriend, Jennifer Dahl, in Grand 

Island, Nebraska, when he received a telephone call from 

Smith requesting him to come in for an interview. After receiving the call, Dalland drove Dahl and himself to Aurora in his 

vehicle. He parked in the public stalls outside the law enforcement center and entered the building.

Smith interviewed Dalland and Dahl separately. He interviewed Dalland first, for a little over an hour. While Smith 

interviewed Dahl, Dalland sat in the lobby, occasionally retreating to his vehicle to smoke a cigarette.

During one of the time periods when Dalland was seated 

in the lobby, Mertz walked past him. Mertz noticed the odor 

of “burnt marijuana” emanating from the location where 

Dalland was sitting. There was nobody else in the lobby at 

the time.

After noting the odor, Mertz sought out Smith to determine 

whether he still needed Dalland for his investigation. Learning 

that Dalland’s interview was finished, Mertz intended to make 

contact with Dalland, but by this time, Dalland had left the 

law enforcement center and was sitting in his vehicle with 
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the window rolled down. Mertz followed Dahl out of the law 

enforcement center and toward the vehicle.

As Dahl got in the passenger side of the vehicle, Mertz 

approached Dalland from the driver’s side, informed him that 

he could smell marijuana, and asked him if he had smoked any. 

Dalland denied smoking marijuana, but advised he had been 

around people who had. Mertz then asked Dalland to exit the 

vehicle and informed him he was going to search him. About 

this time, Dahl exited the vehicle and Mertz directed her to sit 

on the sidewalk. She sat down about 7 feet away.

After performing the pat-down search, Mertz searched 

Dalland’s vehicle and found needles. He asked Dalland if the 

needles in the vehicle were used for methamphetamine, and 

Dalland said they were. The needles were then sent to the 

Nebraska State Patrol crime laboratory, where trace amounts of 

methamphetamine were found.

The parties disputed the events directly preceding Mertz’ 

search of Dalland’s vehicle. In his affidavit of probable cause 

for a warrantless arrest, Mertz reported in part:

Mertz made contact with Dalland. Dalland stated that he 

did not smoke marijuana but he was with people who 

were smoking it earlier . . . . Mertz asked Dalland if he 

had anything in his vehicle or on his person. Dalland 

stated no. Mertz searched Dalland and the vehicle he was 

sitting in. Mertz located a bag of syringes which were 

hidden inside of a glove.

At the hearing on the motion to suppress, Mertz testified 

that Dalland told him there were needles in his vehicle before

Mertz searched it. He said that he informed Dalland he was 

going to search him and asked him if there was anything 

located on his person or in his vehicle that could “stick” or 

“poke” him. According to Mertz, Dalland volunteered that 

he had needles in his vehicle that were used for methamphetamine. Mertz explained that he searched the vehicle after

Dalland made these statements. On cross-examination, defense 

counsel impeached Mertz with his prior inconsistent affidavit. Neither defense counsel nor the State on redirect asked 

Mertz to explain the inconsistency between his testimony 

and affidavit.
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Cite as 20 Neb. App. 905

Dahl testified, however, that after Mertz began searching 

the vehicle, he asked Dalland if he was going to find any 

drugs or paraphernalia in the vehicle and Dalland said there 

were needles inside. Dalland testified that he initially denied 

there were drugs or paraphernalia in the vehicle, but that after

Mertz began searching, he informed Mertz of needles behind 

the seat.

On cross-examination, Mertz admitted that he did not have 

a search warrant or permission to search. He also stated that 

nothing was in plain view and that it was not a traffic stop, a 

search pursuant to an emergency situation, an inventory search, 

or a search pursuant to an arrest.

The trial court denied Dalland’s motion to suppress. In 

its order, the court stated that the legal issue before it was 

whether or not an officer has probable cause to search a motor 

vehicle after detecting the odor of marijuana emanating from 

a person occupying the vehicle. Relying on State v. Watts, 209 

Neb. 371, 307 N.W.2d 816 (1981), the trial court determined 

that Mertz’ detection of the odor of marijuana provided him 

with probable cause to search Dalland’s vehicle. The trial court 

did not rely on Dalland’s statement that there were needles in 

the vehicle as a basis for its finding of probable cause, but 

it did mention the statement as part of its factual introduction. The court wrote that after Mertz advised Dalland that he 

intended to search the vehicle, “[Dalland] indicated to Mertz 

that there might be used needles in the vehicle . . . . Mertz 

then conducted a search and found controlled substances in 

the vehicle.”

At trial, the parties introduced exhibits 1 through 8. Exhibit 

1 contains the stipulated testimony that individual witnesses 

would offer. The stipulated testimony includes the testimony 

from the hearing on the motion to suppress and testimony 

from a forensic scientist of the Nebraska State Patrol crime 

laboratory identifying the substance found on the needles in 

Dalland’s vehicle as methamphetamine. Exhibit D of exhibit 1 

is a report from the crime laboratory stating that the syringes 

that were tested contained methamphetamine. Exhibit 2 is a 

stipulation to chain of custody, and exhibits 3 through 8 are 

physical evidence.
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Defense counsel objected to the exhibits on the grounds 

outlined in his motion to suppress, and the trial court took the 

matter under advisement before admitting the exhibits.

The trial court found Dalland guilty of possession of a 

controlled substance, a Class IV felony, and sentenced him to 

serve 270 days in the Hamilton County jail.

This timely appeal followed.

ASSIGNMENT OF ERROR

On appeal, Dalland argues that the trial court erred by 

receiving evidence that was illegally seized by law enforcement in violation of his rights guaranteed by the U.S. and 

Nebraska Constitutions.

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 of fact for clear error, but whether those facts 

trigger or violate Fourth Amendment protections is a question of law that it reviews independently of the trial court’s 

determination. State v. Garcia, 281 Neb. 1, 792 N.W.2d 

882 (2011).

ANALYSIS

Dalland argues that the trial court erred in admitting into evidence the needles that Mertz seized from his vehicle, because 

they were seized in violation of his Fourth Amendment rights. 

The State argues that Mertz’ search was an exception to the 

Fourth Amendment protection against unreasonable searches 

and seizures, because Mertz had probable cause based on 

smelling the odor of marijuana and Dalland’s admission that 

he had needles used for methamphetamine in his vehicle. The 

State concedes in its brief that the district court found that 

the odor of marijuana alone provided probable cause for the 

search, without reliance upon Dalland’s alleged admission that 

there were needles in the vehicle.

[2,3] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution protect individuals 
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Cite as 20 Neb. App. 905

against unreasonable searches and seizures. State v. Smith, 279 

Neb. 918, 782 N.W.2d 913 (2010). A warrantless search of a 

vehicle is permissible upon probable cause that the automobile 

contains contraband. See California v. Carney, 471 U.S. 386, 

105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). See, also, State v. 

Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).

[4-6] A law enforcement officer has probable cause to 

search when it is objectively reasonable. See State v. Craven, 

253 Neb. 601, 571 N.W.2d 612 (1997). A search is objectively reasonable when known facts and circumstances are 

sufficient to warrant a person of reasonable prudence in the 

belief that he will find contraband or evidence of a crime. 

See id. Probable cause depends on the totality of the circumstances. See State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 

659 (2006).

In this case, Dalland concedes that Mertz’ initial pat-down 

search was permissible, but he argues that Mertz did not have 

probable cause to expand the search to encompass Dalland’s 

vehicle. Therefore, we limit our analysis to whether Mertz had 

probable cause to search Dalland’s vehicle.

[7] The trial court reasoned that the odor of marijuana provided Mertz with sufficient probable cause to search Dalland’s 

vehicle, relying upon State v. Watts, 209 Neb. 371, 307 N.W.2d 

816 (1981). In Watts, the Nebraska Supreme Court stated: 

“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.” 209 

Neb. at 374, 307 N.W.2d at 819. However, Watts and the cases 

upon which it relies involved traffic stops and situations in 

which the officer smelled the marijuana emanating from the 

vehicle. See, e.g., State v. Daly, 202 Neb. 217, 218-19, 274 

N.W.2d 557, 558 (1979) (stating that “[w]hen the rear door of 

the pickup was opened, [the officer] could smell a strong odor 

of marijuana”); State v. Wood, 195 Neb. 353, 356, 238 N.W.2d 

226, 228 (1976) (stating that “after being invited to inspect 

the camper, the officer detected a strong odor of marijuana”). 

The court in State v. Ruzick, 202 Neb. 257, 258, 274 N.W.2d 

873, 875 (1979), recognized this limitation when it stated: “In 
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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.” And in State v. Romonto, 190 Neb. 

825, 830, 212 N.W.2d 641, 644 (1973), the court explained 

why a warrantless search of a vehicle is permissible when it 

said: “An officer is entitled to rely on his senses in determining whether contraband is present in a vehicle. If contraband 

is seen or smelled, the officer is not required to close his eyes 

or nostrils, walk away, and leave the contraband where he sees 

or smells it.”

[8] While an officer need not walk away from contraband 

where he sees or smells it, the scope of a warrantless search 

of an automobile is limited to the places where there is probable cause to believe particular contraband might be found. 

See U.S. v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 

2d 572 (1983). In U.S. v. Ross, 456 U.S. at 824, the U.S. 

Supreme Court went to great lengths to illustrate that different 

factual scenarios give rise to probable cause to search different 

areas, explaining:

Just as probable cause to believe that a stolen lawnmower 

may be found in a garage will not support a warrant to 

search an upstairs bedroom, probable cause to believe that 

undocumented aliens are being transported in a van will 

not justify a warrantless search of a suitcase. Probable 

cause to believe that a container placed in the trunk of 

a taxi contains contraband or evidence does not justify a 

search of the entire cab.

The factual scenario in the case at bar differs substantially 

from the line of cases involving an officer’s search of a vehicle 

pursuant to a traffic stop. While State v. Watts, 209 Neb. 371, 

307 N.W.2d 816 (1981), involved a scenario where a police 

officer smelled the odor of marijuana emanating from the 

defendant’s vehicle, in this case, Mertz smelled the odor of 

marijuana emanating from Dalland’s person while Dalland was 

in a location separate from that of his vehicle. In State v. Watts, 

supra, the police officer could have reasonably believed that 

he would find evidence of criminal activity in the defendant’s 

vehicle, because he smelled the odor of an illegal substance 

emanating from the interior of the vehicle.
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In this case, however, there was no reason for Mertz to 

believe that evidence of criminal activity would be located in 

Dalland’s vehicle as opposed to any other location. In order 

to have probable cause to search the vehicle, Mertz needed 

objective information indicating a fair probability that contraband or evidence of crime would be found. See State v. 

Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). Accordingly, 

we must examine the facts from the perspective of Mertz at 

the time he made the search. The record indicates that Mertz 

entered the law enforcement center and observed the odor of 

marijuana emanating from Dalland’s person. Mertz then consulted Smith to determine that he had completed his interview 

with Dalland. At this point, Dalland had been sitting in the 

law enforcement center for at least an hour. Mertz knew that 

Dalland had been interviewed and also observed Dahl leave 

her interview. Based on the odor emanating from Dalland’s 

person, Mertz searched him and found no evidence of criminal 

activity. Dalland repeatedly denied having smoked any marijuana. At this point, Mertz then expanded his search to encompass Dalland’s vehicle.

In the line of cases involving traffic stops, the arresting 

officer approaches individuals seated in a vehicle. Smelling 

marijuana, the officer reasonably suspects that he might find 

evidence of criminal activity in the vehicle, which is the area 

from which the marijuana odor emanated. The officer then 

has probable cause to search the area from which the odor is 

emanating because an odor indicates a probability that one 

might find evidence of criminal activity in the location of 

the odor.

[9] In the case at bar, Mertz searched Dalland’s person, 

which was the location from which the odor emanated. After 

finding no evidence of criminal activity, he then proceeded to 

search a second location, Dalland’s vehicle. He did not state 

that the vehicle emanated an odor of marijuana, but, rather, 

that the odor emanated from Dalland himself. These facts 

did not provide Mertz probable cause to search Dalland’s 

vehicle. Although Dalland’s odor may have reasonably led 

Mertz to believe that Dalland was around marijuana at some 

point during the day, the record indicates no reason to suspect 
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914 20 NEBRASKA APPELLATE REPORTS

evidence of marijuana would be located in Dalland’s vehicle. 

Given that the odor remained on Dalland the entire time he 

was at the law enforcement center, we can ascertain that the 

odor lingered on his person for a substantial period of time. 

Mertz, as a “certified drug recognition expert,” would likely 

have knowledge of marijuana’s lingering odor. The lasting 

nature of Dalland’s odor, combined with the lack of evidence 

in Dalland’s immediate vicinity, raised the question of where 

Dalland encountered marijuana and acquired the odor. While 

Dalland may have encountered it in his vehicle, he may 

have encountered it any number of ways and in any number 

of locations throughout the day. The Fourth Amendment’s 

requirement that an officer have probable cause before conducting a warrantless search does not allow police officers 

to make guesses about where evidence might be located. See 

State v. Konfrst, 251 Neb. 214, 556 N.W.2d 250 (1996). To the 

contrary, it requires that the facts indicate a fair probability 

that the officer will find contraband in the particular location 

he seeks to search. See id. In this case, Dalland’s odor did not 

give rise to a fair probability that contraband would be found 

in Dalland’s vehicle.

The State argues, however, that Mertz had additional justification to search Dalland’s vehicle because Dalland stated 

that needles were located within it before the search occurred. 

Although the trial court did note that Dalland made this statement before Mertz searched his vehicle, the only evidence 

supporting this finding of fact was Mertz’ trial testimony. Both 

Dalland and Dahl contradicted Mertz’ testimony, but more 

important, Mertz’ testimony conflicted with his prior affidavit 

of probable cause. In his affidavit of probable cause, Mertz 

said that he asked Dalland if he would find anything in the 

vehicle and that Dalland said he would not. Mertz did not provide an explanation for the difference between his testimony at 

trial and the previous statement in his sworn affidavit.

The record before our court indicates that Mertz changed 

his testimony to meet the exigencies of trial without a reasonable explanation. Accordingly, we must disregard his inconsistent trial testimony as a matter of law and assume that 

Dalland did not state needles were present in his vehicle prior 
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STATE v. DALLAND 915

Cite as 20 Neb. App. 905

to Mertz’ initiating the search of the vehicle. See, State v. 

Robertson, 223 Neb. 825, 394 N.W.2d 635 (1986); Momsen v. 

Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 

(1981). See, also, Clark v. Smith, 181 Neb. 461, 149 N.W.2d 

425 (1967); Sacca v. Marshall, 180 Neb. 855, 146 N.W.2d 

375 (1966); Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 

65 (1959).

Because we find that the trial court improperly admitted 

evidence that was seized in violation of Dalland’s rights, we 

reverse the decision of the trial court and remand the cause for 

proceedings consistent with this opinion.

[10] Having determined that Mertz did not have probable 

cause to search the vehicle, we find that the court erred in 

denying the motion to suppress. This error is reversible error; 

therefore, we must determine whether the totality of the evidence admitted by the district court was sufficient to sustain 

Dalland’s conviction. If it was not, then the concepts of double 

jeopardy would not allow a remand for a new trial. See State 

v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011). The Double 

Jeopardy Clause does not forbid a retrial so long as the sum of 

all the evidence admitted by a trial court, whether erroneously 

or not, would have been sufficient to sustain a guilty verdict. 

State v. Borst, supra.

The evidence presented, including the needles seized and the 

subsequent test results thereon, was sufficient to sustain a conviction for possession of methamphetamine. The cause should 

therefore be remanded for a new trial.

CONCLUSION

Mertz’ detection of the odor of marijuana emanating from 

Dalland while he was seated inside the law enforcement center 

did not give rise to probable cause to search Dalland’s vehicle. 

The evidence seized from the vehicle was therefore seized in 

violation of Dalland’s Fourth Amendment rights. Because we 

find that the trial court improperly admitted evidence seized 

in violation of Dalland’s Fourth Amendment rights, and the 

evidence was otherwise sufficient to sustain his conviction, we 

reverse the conviction and remand the cause for a new trial.

Reversed and remanded for a new trial.