State v. Watts

• Decision Date: 02 July 1981
• Docket Number: No. 43789,43789
• Citation: 209 Neb. 371,307 N.W.2d 816
• Parties: STATE of Nebraska, Appellee, v. Warren R. WATTS, Appellant.
• Court: Nebraska Supreme Court

Page 816

307 N.W.2d 816

209 Neb. 371

STATE of Nebraska, Appellee, v. Warren R. WATTS, Appellant.

No. 43789.

Supreme Court of Nebraska.

July 2, 1981.

Syllabus by the Court

1. Search Warrants: Motor Vehicles. Generally, less stringent warrant requirements have been applied to vehicles.

2. Search and Seizure: Motor Vehicles. One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects.

3. Warrantless Searches: Motor Vehicles: Probable Cause. The smell of marijuana, standing alone, is sufficient to furnish probable cause for the warrantless search of a motor vehicle where there is sufficient foundation as to the expertise of the officer making the search.

4. Search and Seizure: Motor Vehicles: Probable Cause. The finding of a quantity of suspected illicit drugs by an officer making a legitimate search of an automobile may serve to substantiate that officer's suspicions and furnish additional probable cause for him to make a complete search of the vehicle.

5. Statutes: Arrests. Neb.Rev.Stat. § 28-416(6)(a) (Reissue 1979) merely authorizes the issuance of citation in the case of certain violations and does not prohibit a police officer from arresting the offender whenever otherwise authorized by law.

6. Constitutional Law: Arrests: Search and Seizure. The constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.

7. Search and Seizure. Under certain circumstances, a furtive movement can produce the legal justification to search an automobile.

John P. Murphy of Ruff & Murphy, North Platte, for appellant.

Paul L. Douglas, Atty. Gen., and Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, BRODKEY, WHITE, and HASTINGS, JJ., and COLWELL, Retired District Judge.

HASTINGS, Justice.

The defendant, Warren R. Watts, a resident of Colorado, has appealed from the District Court for Keith County where he was convicted of the offense of possession of marijuana with the intent to distribute, deliver, or dispense, in violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1979). The defendant was found guilty by the court sitting without a jury, and was sentenced to a term of probation for 2 years. The defendant assigns as error the failure to sustain his motion to suppress evidence seized pursuant to a warrantless search of defendant's car. We affirm.

On April 13, 1980, Watts was stopped by State Trooper Byron Lane of the Nebraska State Patrol for exceeding the speed limit. Trooper Lane approached the driver's side of the vehicle where the window was rolled down, and obtained Watts' driver's license and a rental agreement showing the car to be rented to the defendant. At that time Lane detected the smell of burnt marijuana. Trooper Lane then issued a warning for speeding to Watts and asked him if there was or had been any marijuana in the vehicle, to which Watts replied, "No." The trooper then told Watts that he had smelled marijuana and asked him if he could look in the vehicle. Watts did not consent to the search. Trooper Lane looked over the back seat and saw a clear plastic bag containing a small amount of marijuana in plain view in a cooler with the lid partially off. At that time the defendant was placed under arrest for possession of marijuana and advised of his Miranda rights.

Trooper Lane then asked Watts if he had the trunk key, to which Watts replied that he had had it that morning but could not locate it at that time. Lane then did a pat-down search of Watts, and found the key to the trunk in one of defendant's socks. Lane opened the trunk of the vehicle and observed three large trash bags, each containing twenty 1-pound bags of marijuana.

The defendant's sole assignment of error is the trial court's refusal to suppress the evidence found pursuant to the search of the automobile.

The U. S. Supreme Court has recognized a distinction between the warrantless search and seizure of automobiles or other movable vehicles and the search of a home or office. "Generally, less stringent warrant requirements have been applied to vehicles." Cardwell v. Lewis, 417 U.S. 583, 589-90, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). The treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a warrant impractical.

"The answer lies in the diminished expectation of privacy which surrounds the automobile: 'One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects.... It travels public thoroughfares where both its occupants and its contents are in plain view.' Cardwell v. Lewis, 417 U.S. 583, 590 (94 S.Ct. 2464, 2469, 41 L.Ed.2d 325) (1974) (plurality opinion)." United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977).

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. State v. Daly, 202 Neb. 217, 274 N.W.2d 557 (1979), and the cases cited therein. We have further held that the odor of burned marijuana coming from the driver's compartment of a truck was sufficient probable cause to search the truck. State v. Ruzicka, 202 Neb. 257, 274 N.W.2d 873 (1979).

The defendant argues that the state trooper may have had probable cause to search the interior of the car, but after finding the bag of marijuana in the cooler, he could search no further without independent reason to believe that there was marijuana in the trunk. For support, the defendant refers this court to Wimberly v. Superior Court, 16 Cal.3d 557, 547 P.2d 417, 128 Cal.Rptr. 641 (1976); Commonwealth v. White, 374 Mass. 132, 371 N.E.2d 777 (1977); State v. Patino, 163 N.J.Super. 116, 394 A.2d 365 (1978); and others. The holdings in those cases to the contrary notwithstanding, we believe it just as logical to conclude that the finding of the small amount of marijuana in...