Court rejects argument that legalization of pot in Colorado should change Nebraska standards

LINCOLN — The Nebraska Supreme Court on Friday rejected an argument that legalization of pot in Colorado should change the standards for searching vehicles in Nebraska.

The case involved a 2017 traffic stop in Gering, Nebraska, initiated by a state trooper after watching a car, at high speed, nearly cause an accident at an intersection.

When the trooper approached the vehicle, she smelled burned marijuana. The driver, Kathy Seckinger, denied that there was marijuana in the vehicle or that marijuana had ever been in the car, and said she would not consent to a search.

But the trooper did initiate a search, and found 4 grams of methamphetamine. Seckinger was arrested and eventually found guilty of possession of drugs. She appealed based on what she maintained was an unreasonable search.

Among the arguments she raised was that the legalization of marijuana in nearby Colorado had “eroded the legal premise” for conducting a warrantless search because “the odor of marijuana standing alone no longer suggests criminal activity.”

Current state law allows a law enforcement officer to conduct a search of a vehicle without seeking a judge’s permission if they reasonably believe that contraband or evidence of a crime will be found. For decades, searches by officers with sufficient training who smelled marijuana coming from a vehicle have been allowed to stand, stated the Supreme Court’s 14-page ruling.

The ruling, written by Supreme Court Judge Stephanie Stacy, rejected the argument by Seckinger’s attorney, deputy Scotts Bluff County Public Defender Darin Knepper, that the standard for searches should be changed because of the legalization of recreational marijuana in Colorado.

Obviously, the judge pointed out, marijuana remains a controlled substance under both Nebraska and federal law. Even in states that have legalized pot for medicinal or recreational use, Stacy wrote, many courts continue to recognize that “marijuana is contraband and that the odor of marijuana can provide probable cause to search a vehicle.”

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