The legalization of marijuana in Colorado combined with Interstate 80 have
resulted in a increase in the number of criminal arrests and convictions
in the State of Nebraska for people traveling with marijuana.
In the State of Nebraska, it is illegal to possess marijuana. The penalties
associated with possession vary depending upon the weight of the marijuana.
Nebraska Revised Statute §28-416 provides:
(11) Any person knowingly or intentionally possessing marijuana weighing
more than one ounce but not more than one pound shall be guilty of a Class
(12) Any person knowingly or intentionally possessing marijuana weighing
more than one pound shall be guilty of a Class IV felony.
(13) Any person knowingly or intentionally possessing marijuana weighing
more one ounce .... shall:
(a) For the first offense, be guilty of an infraction, receive a citation
and be fined three hundred dollars ...
Neb. Rev. Stat. §28-416 (2014).
If you or somebody you know has been arrested in Nebraska for transporting
marijuana or any other illegal drug, there are a few things your attorney
should look at when helping to resolve your case.
If you are caught possessing less than one ounce of marijuana, the penalties
aren't substantial but they can be costly from the standpoint of having
to return back and forth to Nebraska for court.
If you've been given a citation for possession of marijuana, the rules
in Nebraska require that a formal complaint be filed more than 24 hours
before your first court appearance. Frequently, prosecutors forget to
follow the rule and file the complaint on the same day that a person is
scheduled to be in court for a first appearance. An experienced criminal
defense attorney should use any and all procedural rules to help get a
criminal case dismissed, and the 24-hour rule is one tool in the arsenal
that should be used whenever possible. The attorneys in our office have
been successful at having marijuana cases procedurally barred because
prosecutors have failed to file a complaint more than 24-hours before
the first court appearance.
If you are charged with more serious marijuana offenses, the procedures
to get the case dismissed aren't always so simple. Frequently, a criminal
defense attorney will have to contact a prosecutor to argue why a case
should get dismissed. Sometimes a dismissal is possible because of the
facts of the case or because law enforcement officers made a mistake in
Furthermore, because of the large number of marijuana cases being prosecuted
in Nebraska, several Nebraska counties on Interstate 80 have developed
programs where people who are arrested for drug offenses can avoid criminal
prosecution. Some of the counties that have such programs include Lancaster,
Seward and York. The programs usually involve obtaining a drug and alcohol
evaluation, following through with drug and alcohol treatment, volunteer
work and no police contact for at least a year.
An experienced criminal defense attorney should find out whether any such
programs exist in the counties where you were arrested.
If your attorney is unable to get the case procedurally dismissed from
the start, or if you cannot get into a program which will result in a
dismissal, the only choice you have left is to fight. We have had hundreds
of cases where the tenacity of our attorneys to fight every possible issue
has resulted in dismissals or a substantial reduction of charges. Some
of the issues that should be closely examined in every interstate 80 drug
case include: probable cause to stop, reasonable suspicion to detain,
consent to search, drug dog reliability, and the search itself.
Probable Cause to Stop
In any interstate drug stop case, the Fourth Amendment right of the defendant
is at issue. At a suppression hearing, the government bears the burden
of proving that the traffic stop, detention, questioning, and search did
not unlawfully produce the evidence the government intends to use to prove
the defendant's guilt.
In order for the traffic stop to be valid, the officer must have probable
cause to believe that a traffic violation has taken place or reasonable
suspicion that criminal activity is afoot. Sometimes a defendant will
argue that his conduct did not constitute a traffic violation and that
the officers mistake as to the law regarding the traffic violation does
not give probable cause for traffic stop. In other cases, the issue is
whether the officer had probable cause to believe that a traffic violation
occurred (which are usually recorded on his front dash video camera).
Reasonable Suspicion to Continue Detention
Often the questioning of an out of state motorist during a routine traffic
stop can exceed the scope of the stop. In other words, law enforcement
will stop a vehicle for a minor traffic violation and proceed to ask irrelevant
questions and unnecessarily and unlawfully detain the driver and/or passenger.
In Nebraska, law enforcement can ask about the purpose and destination
of travel and may also run a Triple I report to check wants, warrants,
and criminal history. However, when the questioning is outside the scope
of the traffic stop, the detention based on the questioning outside the
scope of the traffic stop may rise to an unlawful detention. If a motorist
is unlawfully detained, evidence obtained pursuant to the illegal detention
must be suppressed.
Officers in Nebraska will often times ask permission to search a vehicle.
Some drivers consent, some do not. However, the matter becomes complicated
when the law enforcement officer make it appear as though the driver has
no choice but to consent to the search. In some cases, the officer may
make it appear that if the defendant does not consent to the search, a
dog will be called and will sniff the air around the vehicle and determine
whether a search will occur.
If the officer does not have reasonable suspicion to detain the driver
at that point, an officers' statement that the driver can either wait
for a drug dog or consent to a search immediately may create an unlawful
Drug Dog Reliability
Even if law enforcement has reasonable suspicion to detain the defendant
that doesn't mean they have probable cause to search the vehicle.
In most cases, where valid consent to search is not given and probable
cause cannot be established through other means, law enforcement will
contact a drug dog handler and have a drug dog brought to the scene to
sniff the vehicle. If the dog indicates to the odor of narcotics, law
enforcement will have probable cause to search the vehicle even though
they may not have consent. However, drug dogs are not always accurate
and in some cases evidence obtained through the search using a drug dog
may be suppressed if the drug dog is found to be unreliable or found to
have not indicated on the drugs.
In Nebraska, most drug dogs are trained as passive indicators. This means
that when a drug dog walks around the car he will sniff for the source
of contraband and at the area where the odor is strongest he will show
an interest. This is what handlers refer to as an alert. After the dog
alerts he will sit down at the location of the strongest odor of the contraband
and the sitting action will be the indication.
While in the past, aggressive alert dogs were used, it was found that because
they would paw and scratch, it would damage vehicles. The passive indicating
dog that sits at the greatest odor of the contraband causes less harm
to the vehicle. When analyzing these cases, the first issue to review
is whether the dog actually indicated. In some cases, it appears that
the dog did not sit down or was either intentionally or unintentionally
cued by the dog handler. An officer can certainly give commands for the
dog to sit but some dog handling experts believe that officers often unintentionally
cue the dog.
The general issue in determining whether a dog sniff established probable
cause to search a vehicle is whether the dog is reliable. The dogs reliability
may be established through training and field records. Criminal defense
attorneys often request these records through the discovery process. After
reviewing those records we can determine a reliability rate of the dog.
Additionally, criminal defense attorneys often hire expert witnesses to
help analyze data to provide an outside perspective on whether the dog
was accurately trained and whether the dog actually indicated to the odor of drugs.
The Inherent Unreliability of a Drug Dog
It is important to understand that the drug dog is trained to alert to
the odor of narcotics. This does not necessarily mean that narcotics are
present, only that narcotics were present in the past or that the odor
of narcotics is present. While the courts have found that a dog indicating
to the odor of drugs is sufficient for search it is important to recognize
that drug dogs can falsely indicate to an odor where no drugs are present
because they are only indicating to the odor. This makes analyzing the
dog's records problematic in many instances because officers will
claim that even though no drugs were found the odor of the drug can be
present. In other words there may not much by way of scientific basis
to validate the officers theory as to the reliability of his own dog.
On the other hand, if it is shown through other cases that the dog has
been accurate in the past, the dog will likely be found reliable by the court.
No matter what county you are stopped in and no matter what charges you
face, you need an experienced defense attorney with a proven track record
to fight for your rights.