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in ruling on a plea in abatement is cured by a subsequent 

finding at trial of guilt beyond a reasonable doubt which is 

supported by sufficient evidence.46

Green’s fifth assignment of error is without merit.

VI. CONCLUSION

The decision of the district court is affirmed.

Affirmed.

46 State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).

State of Nebraska, appellee, v. 

Roger L. Dalland, appellant.

___ N.W.2d ___

Filed January 24, 2014. No. S-12-615.

1. Trial: Investigative Stops: Warrantless Searches: Appeal and Error. The 

ultimate determinations of reasonable suspicion to conduct an investigatory stop 

and probable cause to perform a warrantless search are reviewed de novo, and 

findings of fact are reviewed for clear error, giving due weight to the inferences 

drawn from those facts by the trial judge.

2. Trial: Witnesses: Evidence. Where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being 

made to meet the exigencies of pending litigation, such evidence is discredited 

as a matter of law and should be disregarded. In applying this rule, the important 

considerations are that the testimony pertains to a vital point, that it is clearly 

apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change 

in testimony.

3. Witnesses: Testimony. Where it is clear that a party as a witness, to meet the 

exigencies in pending litigation and without reasonable explanation, changes such 

witness’ testimony and then testifies to facts materially different concerning a 

vital issue, the subsequent and altered testimony from such witness is discredited 

as a matter of law and should be disregarded.

4. Witnesses: Testimony: Juries. An inconsistent or contradictory statement by a 

witness, who is not a party opponent, is a factor which may affect a jury’s evaluation of a witness’ credibility or weight to be given such witness’ testimony.

5. Trial: Parties: Witnesses: Testimony. Testimony altered for trial to meet the 

exigencies of the pending litigation should be disregarded as a matter of law only 

if the witness giving the testimony is a party to the action.

6. Judgments: Appeal and Error. A correct result will not be set aside merely 

because the lower court applied the wrong reasoning in reaching that result.
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7. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. 

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

unreasonable searches and seizures.

8. Search and Seizure: Motor Vehicles: Probable Cause. A warrantless search of 

a vehicle is permissible upon probable cause that the vehicle contains contraband.

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

10. Probable Cause. 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. Trial: Evidence: Appeal and Error. In reviewing findings of fact, an appellate 

court does not reweigh or resolve conflicts in the evidence, but will uphold the 

trial court’s findings of fact unless those findings are clearly erroneous.

12. Evidence: Appeal and Error. An appellate court resolves evidentiary conflicts 

in favor of the successful party, who is entitled to every reasonable inference 

deducible from the evidence.

Petition for further review from the Court of Appeals, 

Sievers, Pirtle, and Riedmann, Judges, on appeal thereto from 

the District Court for Hamilton County, Michael J. Owens, 

Judge. Judgment of Court of Appeals reversed, and cause 

remanded with direction.

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

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

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

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Wright, J.

NATURE OF CASE

Roger L. Dalland was convicted of possession of a controlled substance after syringes with trace amounts of methamphetamine were discovered during a warrantless search of 

his vehicle. At a hearing on Dalland’s motion to suppress, the 

State argued that it had probable cause to conduct the search 

based on the odor of marijuana emanating from Dalland’s 

person or, if that was not sufficient, on an officer’s alleged 

knowledge that there were needles in Dalland’s vehicle. The 

district court found that the odor of marijuana emanating from 
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Dalland’s person established probable cause to search his 

vehicle. It overruled Dalland’s motion to suppress and subsequently convicted Dalland based on the evidence discovered in 

the search of his vehicle.

On appeal, the Nebraska Court of Appeals reversed, and 

remanded for a new trial. See State v. Dalland, 20 Neb. App. 

905, 835 N.W.2d 95 (2013). It concluded that standing alone, 

the odor of marijuana emanating from Dalland’s person did 

not provide probable cause to search his vehicle, and that the 

State’s additional justification for the search—knowledge of 

needles used for methamphetamine—was based solely on testimony that should be disregarded as a matter of law. Ultimately, 

the Court of Appeals concluded that there was no probable 

cause to search the vehicle. We granted the State’s petition 

for further review and now reverse the decision of the Court 

of Appeals.

SCOPE OF REVIEW

[1] The ultimate determinations of reasonable suspicion to 

conduct an investigatory stop and probable cause to perform a 

warrantless search are reviewed de novo, and findings of fact 

are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. In re Interest 

of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

FACTS

On May 24, 2011, Dalland and his girlfriend, Jennifer Dahl, 

were interviewed at the law enforcement center in Aurora, 

Nebraska, about an unrelated matter. As Cpl. Chad Mertz of 

the Aurora Police Department walked past Dalland in the law 

enforcement center, Mertz smelled the odor of burnt marijuana coming from where Dalland was sitting. After Dalland 

finished his interview, he waited for Dahl in the lobby of the 

law enforcement center and then in his vehicle in the parking 

lot. He was sitting in the driver’s seat of his vehicle in the 

parking lot when he was confronted by Mertz about the odor. 

Mertz asked Dalland to exit the vehicle, performed a pat-down 

search of Dalland’s person, and then searched the vehicle. 

The searches were performed without consent or a warrant. 
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In the vehicle, Mertz found needles containing trace amounts 

of methamphetamine. Dalland was subsequently arrested and 

charged with possession of a controlled substance. Before trial, 

Dalland moved to suppress the evidence seized in the search of 

his vehicle.

At the suppression hearing, the parties introduced contradicting evidence about the specifics of the search. Dalland 

testified that Mertz began searching the vehicle without any 

knowledge that the vehicle contained drugs, weapons, or drug 

paraphernalia. According to Dalland, when Mertz asked about 

the contents of the vehicle prior to the search of the vehicle, 

Dalland denied that it contained any drugs or weapons. He 

stated that he did not tell Mertz that there were needles in the 

vehicle until Mertz had already started the search. Dahl similarly testified that Mertz did not learn about the needles until 

the search was already in progress. In contrast, Mertz testified 

that he asked about the needles in the vehicle before searching it. He explicitly denied learning about the needles after he 

started searching the vehicle.

On cross-examination, Dalland confronted Mertz about a 

police report that Mertz had filed in the case. Dalland quoted 

from Mertz’ report that stated Dalland had denied having any 

drugs or drug paraphernalia in the vehicle. When confronted 

about his report, Mertz reiterated that he learned about the 

needles in the vehicle before starting the search. He stated 

that he did not enter the vehicle to search it until after Dalland 

said there were needles in the vehicle that had been used for 

methamphetamine. Dalland neither asked Mertz to explain the 

inconsistencies between his trial testimony and the report nor 

proffered the report into evidence.

The district court overruled Dalland’s motion to suppress. 

It found that the odor of marijuana was sufficient to establish 

probable cause for the search of Dalland’s vehicle, citing State 

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

Reha, 12 Neb. App. 767, 686 N.W.2d 80 (2004). The court 

found that Mertz did not search the vehicle until after Dalland 

informed him that there were needles in the vehicle. However, 

the court did not rely upon this fact in finding that Mertz had 

probable cause to search the vehicle.
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At a bench trial, the test results establishing that the needles from Dalland’s vehicle contained methamphetamine were 

admitted over Dalland’s objection. Dalland was found guilty 

of possession of a controlled substance and sentenced to 270 

days’ incarceration.

Dalland timely appealed, alleging the district court erred by 

overruling his motion to suppress and by receiving the evidence that was the subject of the motion to suppress. He did 

not challenge the court’s decision that the search of his person 

was constitutional. He admitted that Mertz was justified in 

approaching Dalland about the odor of marijuana on his person, 

but argued that Mertz violated Dalland’s Fourth Amendment 

rights when Mertz “extend[ed] the search to include Dalland’s 

vehicle.” See brief for appellant at 7.

The issue was whether there was probable cause to search 

Dalland’s vehicle. The Court of Appeals concluded that the 

district court erred in finding probable cause for the search 

of Dalland’s vehicle based solely upon the odor of marijuana 

emanating from his person. See State v. Dalland, 20 Neb. 

App. 905, 835 N.W.2d 95 (2013). It distinguished Watts, 

supra, and all of the cases upon which Watts relied, because 

they “involved traffic stops and situations in which the officer 

smelled the marijuana emanating from the vehicle.” Dalland,

20 Neb. App. at 911, 835 N.W.2d at 100. The Court of 

Appeals explained:

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. . . . 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.

Id. at 914, 835 N.W.2d at 102. Accordingly, the Court of 

Appeals held that the district court erred in concluding that 

the odor of marijuana on Dalland’s person alone was probable 

cause to search his vehicle.
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On appeal, the State argued that there was probable cause to 

search Dalland’s vehicle if the odor of marijuana on Dalland’s 

person was considered in conjunction with Mertz’ testimony 

that prior to the search, he learned the vehicle contained 

needles used for methamphetamine. Mertz’ testimony was the 

only evidence to support the State’s assertion that Mertz knew 

about the needles before the search. But the Court of Appeals 

concluded that Mertz’ testimony should be disregarded as a 

matter of law because it found that Mertz, without a reasonable explanation, had changed his testimony from that given 

in a probable cause affidavit in order to meet the exigencies of 

trial. Without this testimony, the evidence showed that Mertz 

did not learn about the needles until after starting the search 

and that the only basis for the search was the odor of marijuana 

on Dalland’s person, which the Court of Appeals concluded 

was not sufficient to establish probable cause. In the absence 

of probable cause, the needles were improperly admitted as 

the fruit of an illegal search. Therefore, the Court of Appeals 

reversed the judgment of the district court and remanded the 

cause for a new trial. We subsequently granted the State’s petition for further review.

ASSIGNMENTS OF ERROR

On further review, the State assigns, restated, that the Court 

of Appeals erred (1) by relying on Mertz’ probable cause affidavit to discredit his trial testimony even though the affidavit 

was not in evidence or discussed at the suppression hearing; 

(2) by concluding that Mertz was a “party,” such that the 

Court of Appeals could disregard his trial testimony about the 

needles as a matter of law; and (3) by holding that the smell of 

marijuana alone did not provide probable cause to search the 

vehicle. The central question to which all three of the State’s 

assignments of error point is whether there was probable cause 

for the search of Dalland’s vehicle.

ANALYSIS

Because the Court of Appeals concluded as a matter of law 

that Mertz’ testimony regarding Dalland’s statements about 

the needles in the vehicle should be disregarded, we examine 
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whether the Court of Appeals erred in disregarding this testimony or in determining, based on the remaining evidence, that 

there was no probable cause.

Summary of Arguments

The State claims that Mertz had probable cause to conduct 

the warrantless search of Dalland’s vehicle based upon the 

odor of marijuana on Dalland’s person and Dalland’s statement to Mertz before the search that there were needles in 

the vehicle.

Dalland claims that Mertz began the search before Mertz 

learned there were needles in the vehicle and that the odor of 

marijuana on Dalland’s person did not provide probable cause 

to search his vehicle.

The district court found that Mertz began the search after he 

was told about the needles, but it did not rely upon this fact in 

overruling Dalland’s motion to suppress. It concluded that the 

odor of marijuana was sufficient to establish probable cause for 

the warrantless search.

The Court of Appeals reversed the judgment of the district 

court, holding that (1) the odor of marijuana emanating from 

Dalland’s person was not probable cause to search the vehicle 

and (2) Mertz’ trial testimony about searching the vehicle only 

after Dalland stated there were needles inside must be disregarded as a matter of law.

Disregarding Mertz’ Testimony

Throughout this case, the State has argued that there was 

probable cause to search Dalland’s vehicle because in addition 

to detecting the smell of marijuana, Mertz learned before he 

initiated a search of the vehicle that it contained needles used 

for methamphetamine. Mertz testified that before he began the 

search, Dalland said that there were needles in the vehicle. The 

State alleges the Court of Appeals erred by concluding that 

Mertz changed his testimony for the exigencies of trial and 

was a “party,” such that his inconsistent trial testimony about 

the needles should be disregarded as a matter of law. We conclude that the Court of Appeals erred in disregarding Mertz’ 

trial testimony.
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[2] A court may disregard witness testimony, as a matter of 

law, under certain circumstances: “Where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the 

exigencies of pending litigation, such evidence is discredited 

as a matter of law and should be disregarded.” Riggs v. Nickel, 

281 Neb. 249, 253, 796 N.W.2d 181, 185 (2011). In applying 

this rule, the important considerations are that the testimony 

pertains to a vital point, that it is clearly apparent the party has 

made the change to meet the exigencies of the pending case, 

and that there is no rational or sufficient explanation for the 

change in testimony. Id.

In prior cases, we have stated that under this proposition, 

only the inconsistent testimony of a party as a witness is 

subject to this rule. See, e.g., Ketteler v. Daniel, 251 Neb. 

287, 556 N.W.2d 623 (1996); State v. Osborn, 241 Neb. 424, 

490 N.W.2d 160 (1992); State v. Robertson, 223 Neb. 825, 

394 N.W.2d 635 (1986); Insurance Co. of North America v. 

Omaha Paper Stock, Inc., 189 Neb. 232, 202 N.W.2d 188 

(1972); Clark v. Smith, 181 Neb. 461, 149 N.W.2d 425 (1967); 

Sacca v. Marshall, 180 Neb. 855, 146 N.W.2d 375 (1966). But 

we have refused to extend the rule to nonparty witnesses. See 

Ketteler, supra.

As it is used in this proposition, the term “party” refers 

only to those who are named in an action. In Sacca, supra, we 

applied the rule only to plaintiffs. But in Momsen v. Nebraska 

Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981), we 

noted that application of this rule is not limited to plaintiffs 

but applies to any party. In more recent cases, we have held 

that the rule applies only to “a party opponent.” See Osborn, 

241 Neb. at 431, 490 N.W.2d at 166. Accord Robertson, supra. 

A witness of the State is not a party subject to this rule. See, 

Osborn, supra; Robertson, supra.

[3-5] The inconsistent testimony of a witness who is a party 

to the action is treated differently from a nonparty witness.

Where it is clear that a party as a witness, to meet the 

exigencies in pending litigation and without reasonable 

explanation, changes such witness’ testimony and then 

testifies to facts materially different concerning a vital 
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issue, the subsequent and altered testimony from such 

witness is discredited as a matter of law and should be 

disregarded. . . . Otherwise, an inconsistent or contradictory statement by a witness, who is not a party opponent, is a factor which may affect a jury’s evaluation 

of a witness’ credibility or weight to be given such witness’ testimony.

Robertson, 223 Neb. at 828-29, 394 N.W.2d at 637 (citations 

omitted). In other words, testimony altered for trial to meet the 

exigencies of the pending litigation should be disregarded as a 

matter of law only if the witness giving the testimony is a party 

to the action. Contradictory testimony given by a nonparty witness is considered and weighed by the trier of fact and may be 

taken into account by the trier of fact when determining credibility. See Osborn, supra.

Mertz is not a party to the instant case. The Court of Appeals 

should not have disregarded Mertz’ testimony as a matter of 

law and should have given deference to the district court’s 

finding of fact that Mertz was told about the needles prior to 

the search.

Probable Cause for Search

[6] When we consider Mertz’ testimony that Dalland told 

him about the needles before the search, we conclude that the 

district court did not err in overruling Dalland’s motion to 

suppress and admitting the evidence obtained from the search 

of the vehicle. Although probable cause was established for 

different reasons than stated by the court, we conclude there 

was probable cause for the search. “[A] correct result will not 

be set aside merely because the lower court applied the wrong 

reasoning in reaching that result.” State v. Chiroy Osorio, 286 

Neb. 384, 389, 837 N.W.2d 66, 70 (2013).

[7,8] The Fourth Amendment to the U.S. Constitution and 

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

unreasonable searches and seizures. State v. Wiedeman, 286 

Neb. 193, 835 N.W.2d 698 (2013). But a warrantless search of 

a vehicle is permissible upon probable cause that the vehicle 

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

105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985).
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[9,10] Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances. State 

v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). 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. J.P. v. Millard Public Schools, 285 Neb. 890, 830 

N.W.2d 453 (2013).

[11,12] In the instant case, a critical factor in the probable 

cause analysis is when Mertz learned about the needles in 

Dalland’s vehicle. The district court made a finding of fact 

that Mertz learned about the needles before he began to search 

Dalland’s vehicle. In reviewing findings of fact, we “[do] not 

reweigh or resolve conflicts in the evidence, but will uphold 

the trial court’s findings of fact unless those findings are 

clearly erroneous.” State v. Thompson, 244 Neb. 189, 192, 505 

N.W.2d 673, 676 (1993). Additionally, we resolve evidentiary 

conflicts in favor of the successful party, who is entitled to 

“every reasonable inference deducible from the evidence.” 

See State v. Pullens, 281 Neb. 828, 837, 800 N.W.2d 202, 

214 (2011).

The district court was presented with two plausible but 

conflicting accounts of the events surrounding the search of 

Dalland’s vehicle. Both Dalland and Dahl testified that Mertz 

asked about the needles after he entered the vehicle to perform the search. But Mertz stated at several points throughout 

his testimony that he learned the vehicle contained needles 

used for methamphetamine before he searched the vehicle. 

On cross-examination, Dalland quoted from the police report, 

without offering it into evidence, to “refresh [Mertz’] recollection” whether Dalland told him about the needles before 

or after starting to search the vehicle. When so confronted, 

Mertz agreed his report stated that Dalland denied having 

any drugs or paraphernalia. But immediately thereafter, Mertz 

denied that he learned about the needles during the search of 

the vehicle and insisted that he asked about the needles while 

he was searching Dalland and before searching the vehicle. 

Mertz testified he was confident that he asked Dalland about 

the needles while he was searching Dalland’s person because 
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Mertz had never searched an individual without asking about 

sharp objects such as needles.

The district court’s decision to accept Mertz’ version of the 

facts over that of Dalland and Dahl was not clearly erroneous. 

The weight and credibility of the testimony of these witnesses 

was for the trier of fact. See Thompson, supra. Mertz consistently testified that Dalland mentioned the needles before 

Mertz started to search the vehicle. We give due weight to 

the district court’s determination that Mertz learned about the 

needles before he began to search Dalland’s vehicle. See In re 

Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

Since Mertz learned prior to searching Dalland’s vehicle 

that it contained needles used for methamphetamine, Mertz 

could reasonably believe that he would find drug paraphernalia or other contraband in the vehicle. This reasonable belief 

was only strengthened by the fact that there was an odor of 

marijuana emanating from Dalland’s person. The combination 

of the odor and Dalland’s statement prior to the search that 

the vehicle contained needles used for methamphetamine supplied facts and circumstances sufficient to warrant a person 

of reasonable prudence in the belief that contraband would 

be found in the vehicle. The district court did not err in overruling Dalland’s motion to suppress the evidence found as a 

result of the search of Dalland’s vehicle and admitting that 

evidence at trial.

Because we find probable cause for the search based on the 

combined facts that Dalland smelled of burnt marijuana and 

that he admitted prior to the search of his vehicle to having 

needles in the vehicle, we do not reach the question whether 

the odor of marijuana emanating from Dalland was sufficient 

to establish probable cause.

CONCLUSION

For the aforementioned reasons, we reverse the decision of 

the Court of Appeals and remand the cause with direction that 

the Court of Appeals issue a judgment affirming Dalland’s 

conviction and sentence.

Reversed and remanded with direction.