State v. Dalland, S–12–615
| Decision Date | 24 January 2014 |
| Docket Number | No. S–12–615,S–12–615 |
| Citation | 842 N.W.2d 92,287 Neb. 231 |
| Parties | State of Nebraska, Appellee, v. Roger L. Dalland, Appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
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, Lincoln, for appellee.
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.
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.
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 marijuanaemanating 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 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.
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).
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. 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.
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, ...
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