Appeals Court Rules Smelling Pot on a Person isn’t Probable Cause for Warrantless Search of His Vehicle

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On Tuesday, the Court of Appeals, Nebraska found that to justify the probable cause for a warrantless search and seizure of a vehicle, law enforcement needs to show smell of marijuana was emanating from the vehicle and not just from the body of the vehicle owner standing away from his vehicle.

In the instant case, a Grand Island man, Roger Dalland and his girlfriend were called to the Aurora Police Department where he and his girlfriend were interviewed separately. Dalland was interviewed first, and after about an hour was allowed to leave. While his girlfriend was being interviewed, Dalland waited outside.

At that time, Cpl. Chad Mertz happened to pass by, and the sleuth smelled pot on Dalland. He asked Dalland whether he had been smoking pot. Dalland, who had been at the police department premises for more than an hour, answered to the negative, but said earlier in the day he had been with persons who were smoking pot.

  

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Mertz didn’t say anything, but followed Dalland’s girlfriend to the car and when the couple were ready to leave, he knocked and asked Dalland to get out of the vehicle. Then he patted him down, followed through with a search of the vehicle, seized three syringes with traces of meth and charged Dalland with possession of meth.

At a hearing to suppress the evidence, Mertz testified that Dalland had told him the needles were in his car before he began his warrantless search. However, that testimony contradicted with Mertz’s affidavit which clearly mentioned and claimed that smelling marijuana on Dalland was the probable cause upon which the officer searched the car without a warrant.

The trial court agreed, accepted the evidence and convicted Dalland. However, Dalland argued that his 4^th Amendment rights had been violated.

In overturning the conviction and explaining what constitutes probable cause, the Nebraska Court of Appeals cited, among many other cases, the precedent of U.S. vs. Ross established by the U.S. Supreme Court, in which while illustrating what is acceptable as “probable cause” for warrantless search, the Supreme Court observed:

“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…”

Accordingly, the Court of Appeals overturned Dalland’s conviction and remanded the case to the lower court holding smelling marijuana on Dalland’s body (and not vehicle) was probable cause to search his person, but not his car. Hence, the warrantless search and seizure that retrieved the needles leading to Dalland’s conviction was made in violation of his constitutional rights under the 4^th Amendment.