Petition for Writ of Certiorari — Daejerron L. Valentine, Petitioner v. Nebraska

No.

IN THE SUPREME COURT OF THE UNITED STATES

DAEJERRON VALENTINE, Petitioner,

vs.

STATE OF NEBRASKA, Respondent.

On Petition for Writ of Certiorari to

The Nebraska Supreme Court

PETITION FOR WRIT OF CERTIORAM

Thomas C. Riley

Counsel of Record

Public Defender for Douglas County, Nebraska

Jessica C. West

Counsel of Record

Assistant Public Defender for Douglas County, Nebraska

1819 Famam Street

H05 Civic Center

Omaha, Nebraska 68183

(402)444-7175

I

QUESTIONS PRESENTED

1) Did the warrantless search of an automobile pursuant to the automobile exception become

unreasonable when police officers expanded the search beyond the time and intensity required to

locate the object of the search?

2) Does the removal of the disjunctive "or" from a statutory list give rise to ambiguity such that

legislative history can be considered when interpreting such statute?

3) Is a defendant entitled to jury instmctions which consistently instruct the jury on the term

"possession?"

LIST OF PARTIES

Clerk of the Nebraska Supreme Court and Nebraska Court of Appeals

2413 State Capitol, P.O. Box 98910,

Lincoln, NE 68509

(402)471-3731

Douglas County District Court

1701 Famam Street,

Omaha,NE68183

(402)471-2683

Nebraska Attorney General

2115 State Capitol P.O. Box 98920,

Lincoln, NE 68509

(402)471-2683

TABLE OF CONTENTS

OPINIONS BELOW...........................................................................................................^

STATEMENT OF JURISDICTION...................................................................................^

CONSTITUTIONAL PROVISION INVOLVED...............................................................6

STATEMENT OF THE CASE...........................................................................................^

REASONS FOR GRANTING THE WRIT.......................................................................11

INDEX OF APPENDICES

NEBRASKA SUPREME COURT DENIAL OF PETITION FOR FURTHER

REVIEW.................................................................................................................... App-A

NEBRASKA COURT OF APPEALS OPINION IN STATE V. VALENTINE.......App-B

MOTION TO SUPPRESS EVIDENCE PROCEEDINGS ........................................App-C

MOTION TO RECONSIDER MOTION TO SUPPRESS AND REQUEST TO REOPEN

EVIDENTIARY HEARING..................................................................................... App-D

LEGISLATIVE BILL 771..........................................................................................App-E

LEGISLATIVE BILL 478..........................................................................................App-F

LEGISLATIVE BILL 289......................................................................................... App-G

LEGISLATIVE BILL 848......................................................................................... App-H

BRIEF FOR APPELLANT, APPEAL TO NEBRASKA COURT OF APPEAL....... App-I

BRIEF FOR APPELLEE, APPEAL TO NEBRASKA COURT OF APPEALS........ App-J

PETITION FOR FURTHER REVIEW AND MEMORANDUM BRIEF................ App-K

TABLJ^OF AUTHORITIES

28 U.S.C. Section 1254...................................................................................................6,11

California v. Acevedo, 500 U.S. 565 (1991)......................................................................12

Callahan v. United States, 364 U.S. 587 (1961)................................................................21

Carroll v. United States, 267 U.S. 132 (1925)...................................................................12

Commonwealth v. Cruz, 945 N.E.2d 899 (Mass. 2011) ....................................................11

Commonwealth v. Daniel, 985 N.E.2d 843 (Mass. 2013) .................................................11

Commonweal v. 5'co^, 210 A.3d 359 (Pa. Super. Ct. 2019)...........................................11

Illinois v. Gates, 462 U.S. 213 (1983) ...............................................................................12

In re Estate ofPsota, 297 Neb. 570 (2017) .......................................................................21

State v.Benson,19S~Neb. 14 (1977)........................................................................11,12,14

State v. Castellanos, 26 Neb. App. 310 (2018)..................................................................22

5totev.Z)afy, 202 Neb. 217 (1979)..........................................................................11,12,14

5'tofe v. Farm, 849 N.E.2d 985 (Ohio 2006).....................................................................! 1

State v. O'Laughlin, 372 P.3d 342 (2016) .........................................................................21

State v.Ruzicka, 202 Veb. 257 (\979).....................................................................n,\2,U

State v.Schmadeka, 3^ P.3d 633 (Idaho CtApp. 2001)...................................................11

5'ra?ev.5ec^^er, 301 Neb. 963 (2018)..................................................................! 1,12,14

State v. Wright, 977 P.2d 505 (Utah Ct. App. 1999) .........................................................11

United States v. Bernal, 2017 U.S. Dist. LEXIS 193809 ..................................................18

United States v. Bradford, 423 f.3d 1149 (10±Cir.2005)..........................................15,\9

United States v. Downs, 151 F.3d 1301 (10th Cir. 1998).............................................14,15

United States v. Guerrero-Sanchez, 412 F. App'x 133 (10th Cir. 2011) ..........................17

United States v. Nielsen, 9 F.3d 1487 (10th Cir. 1993) .....................................................15

United States v. Parker, 72 F.3d 1444 (10th Cir. 1995) ...................................................15

United States v. Ross, 456 U.S. 798 (1982)..................................................................12,16

United States v. Wald, 216 F.3d 1444 (10th Cir. 2000)................................................15,19

PETITION FOR A WRIT OF CERTIORARI

Daejerron Valentine respectfully petitions for a writ ofcertiorari to the Nebraska Supreme

Court.

OPINIONS BELOW

The opinion of the Nebraska Court of Appeals is reported at 27 Neb. App. 725,936 N.W.2d

16 (2019). The Nebraska Supreme Court denied petition for further review.

STATEMENT OF JURISDICTION

The Nebraska Court of Appeals delivered its opinion on October 29, 2019. The Nebraska

Supreme Court denied petition for further review on December 12, 2019. This Court's jurisdiction

is invoked under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

I. The Fourth Amendment to the United States Constitution, which secures "[t]he right of

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated ..." U.S. Const. Amend. IV.

II. The Fifth Amendment to the United States Constitution, which guarantees all criminal

defendant's "due process of law." U.S. Const. Amend. V.

III. The Sixth Amendment to the United States Constitution, which guarantees all citizens the

right to "be informed of the nature and cause of the accusation." U.S. Const. Amend. VI.

IV. Nebraska Revised Statute § 28-1206 (2017) defining possession of a firearm by a

prohibited person, as that statute was in effect between May 10, 2017 and July 19, 2018.

STATEMENT OF THE CASE

On October 12, 2017, Daejerron Valentine (hereinafter "Valentine") was subjected to a

traffic stop predicated on suspicion of a window tint violation. The stop was initiated by Officer

Ramsey and Officer Dempsey of the Omaha Police Department. In drafting the majority opinion

of the Nebraska Court of Appeals on this matter, the court specifically noted that Officer Dempsey

was "assigned to the 'gang suppression unit,'" although the relevance of that label was never

addressed in the opinion. Officer Dempsey gave detailed testimony regarding the nature of the

stop, and much of the stop was recorded on Officer Dempsey's body worn camera. The officers

were on patrol in a marked police car in the northeast part of Omaha, Nebraska. Around 10:30

p.m.. Officer Dempsey observed the passenger side of a vehicle despite the fact that the vehicle

was also said to be driving in front of him. Nevertheless, Officer Dempsey believed, based on his

training and experience, that the tint on the windows was too dark and thus constituted a traffic

violation. Based on this observation, the officers conducted a traffic stop and made contact with

the sole occupant and driver of the vehicle: Valentine.

Valentine asked the officers why he was stopped. Officer Dempsey responded by

requesting Valentine's license and registration, which Valentine produced immediately. Officer

Dempsey later testified that he observed the odor of burnt marijuana emanating from the vehicle.

In response to that single observation. Officer Dempsey opened the driver's side door and

commanded Valentine to exit the vehicle. Again, Valentine promptly complied. Officer Dempsey

searched Valentine's person and asked if Valentine had been smoking marijuana. Valentine denied

smoking himself, but he admitted that a recent passenger had smoked marijuana in the car. Nothing

of evidentiary value was found on Valentine's person. Officer Dempsey promptly searched the

center console of the vehicle and discovered two "baggies" of marijuana. One of the haggles

contained 18.8 grams and the other contained 9.196 grams for a total of 27.996 grams of marijuana,

or, as the Court of Appeals eloquently put it, "just under 1 ounce." State v. Valentine, 27 Neb. App.

2

725, 729 (2019). Inside the center console, Officer Dempsey also discovered a small digital scale

and two empty plastic baggies.

At this point in the search, the only evidence available to Officer Dempsey was the odor of

burnt marijuana, Valentine's frank explanation that a recent passenger had smoked marijuana in

the vehicle, less than an ounce ofunsmoked and unpackaged marijuana, a small digital scale, and

two empty plastic haggles. Nevertheless, Officer Dempsey expanded his search of the vehicle by

dismantling the passenger door and searching inside the tmnk of the vehicle. As a result of the

extenuated and intrusive search, Officer Dempsey discovered a firearm hidden inside the passenger

door, underneath the passenger door locking mechanism and window control panel. Officer

Dempsey later testified that he "commonly" searches this location for guns. Officer Dempsey also

located a box of empty plastic baggies and $240 cash in the tmnk.

At trial. Valentine moved to suppress all of the evidence seized during the search. At the

suppression hearing, Valentine's counsel made the following arguments on his behalf:

(1) The police did not have probable cause to believe the window tint on Valentine's

vehicle was too dark because the state failed to show Officer Dempsey's observation was made on

an "objective basis." See id. at 732; Brief for Appellant at 16-18.

(2) The expansion of the search beyond the time and intensity required to locate the 'object

of the search' (i.e. evidence consistent with the consumption of marijuana) was not justified by the

observations articulated by the officers at that point in the stop (i.e. suspected window tint

violation, the odor of burnt marijuana, less than an ounce of marijuana, a digital scale, and plastic

haggles). Valentine, 27 Neb. App. at 732; Brief for Appellant at 18-21.

The trial court denied Valentine's motion summarily, finding that "all of the officers'

actions [on the] evening [of the traffic stop] were appropriate and in accordance with Nebraska

3

law." Valentine, 27 Neb. App. at 732. At the ensuing trial, a dispute arose as to the proper

interpretation of Nebraska Revised Statute § 28-1206. This statute, as it existed on October 12,

2017, read as follows:

(1) A person commits the offense of possession of a deadly weapon by a prohibited person

if

he

or

she:

(a) Possesses a firearm, a knife, or brass or iron knuckles and he or she:

(i) Has previously been convicted of a felony;

(ii) Is a fugitive from justice;

(iii) Is the subject of a current and validly issued domestic violence

protection order, or sexual assault protection order and is knowingly

violation such order

This is precisely how the statute was written from April 2017 until April 2018. Prior to

April 2017, the statute included the word "or" after subsection (l)(a)(ii) and was written in

narrative as opposed to list form. Prior to the April 2017 amendments, the statute read as follows:

(l)(a) Any person who possesses a firearm . . . and who has previously been convicted of

a felony, who is a fugitive from justice, or who is the subject of a current and validly issued

domestic violence protection order and is knowingly violating such order ... commits the

offense of possession of a deadly weapon by a prohibited person.

(emphasis added).

When the legislature revised the statute to the current list format, it apparently omitted the

word "or," suggesting that subsections (l)(a)(i)-(iii) must all be met for the statute to apply. In

April 2018, the legislature once again amended the statute to include the word "or" after subsection

(l)(a)(ii), thereby reinstating the disjunctive language used in the previous form of the statute

which requires only one of the three subsections be met for the statute to apply.

Valentine argued that the plain meaning of the statute in effect when the offense was

committed required all three subsections to be met for the statute to apply. The district court was

of the opinion that the omission of the word "or" made the statute ambiguous because it was

equally likely that the legislature intended the word 'or' as it was that the legislature intended the

word 'and.' Accordingly, the district court declared the statute ambiguous and examined the

4

legislative history to ultimately interpret the statute as if the word "or" was included in the version

of the statute as it existed at the time of Valentine's offense.

Valentine also proposed a number of jury instructions which the district court refused to

submit to the jury. First, Valentine argued that Jury Instruction No. 3 failed to accurately reflect

the law with regard to Nebraska Revised Statute § 28-1206. Instruction No. 3 delineated the

charges brought against Valentine, and it inserted the word "or" after subsection (l)(a)(ii) contrary

to the plain meaning of the statute as discussed above. Second, Valentine proposed an amendment

to Jury Instruction No. 6 to include the words "knowingly or intentionally" such that the instruction

would read, "the defendant did knowingly or intentionally possess a deadly weapon." Finally,

Valentine proposed an amendment to Jury Instmction No. 9 which defined the term 'possession'

as "either knowingly having it on one's person or knowing of the object's presence and having

control over the object." Valentine's proposal would have tacked on the phrase, "proximity,

standing alone, is insufficient to prove possession."

Valentine was subsequently found guilty by a jury and convicted of possession of

marijuana less than one ounce, first offense, and possession of a firearm by a prohibited person.

At sentencing, the state enhanced the gun charge to a second offense. The district court ordered

Valentine to pay a $300 fine for the marijuana infraction and sentenced him to a term of twenty

years to twenty years and one day of imprisonment for the firearm possession conviction.

On appeal, the Nebraska Court of Appeals affirmed, agreeing with the district court on all

the issues Valentine argued at the suppression hearing and at trial. The appellate court dismissed

any notion that the officers lacked the probable cause necessary to carry out the extenuated search

of Valentine's vehicle. Id. at 735-737. Quite notably, the Court of Appeals devoted almost the

entire discussion of probable cause to only one of Officer Dempsey's observations—that is, the

5

odor of "marijuana" emanating from Valentine's vehicle. The opinion referred broadly to

marijuana without the qualifier despite the undisputed fact that Officer Dempsey articulated his

observation as "the odor of burnt marijuana." See id at 728; Brief for Appellant at 9.

The Nebraska Supreme Court denied Valentine's petition for further review and this

Petition for Writ ofCertiorari followed pursuant to 28 U.S.C. § 1254.

REASONS FOR GRANTING THE WRIT

I

This case presents an opportunity for The Court to clarify a fundamental inconsistency that

has emerged in Fourth Amendment jurisprudence. The underlying question at the heart of this

petition is the relevance and significance of the distinction between 'the odor of burnt marijuana'

and 'the odor of raw marijuana' as it relates to a warrantless search of an automobile under the

automobile exception to the Fourth Amendment warrant requirement. A number of jurisdictions,

primarily citing to the United States Court of Appeals for the Tenth Circuit, have adopted a logical

distinction between the two smells. See State v. Wright, 977 P.2d 505 (Utah Ct. App. 1999); State

v. Farris, 849 N.E.2d 985 (Ohio 2006); Commonwealth v. Scott, 210 A.3d 359 (Pa. Super. Ct.

2019); Commonwealth v. Cruz, 945 N.E.2d 899 (Mass. 2011); Commonwealth v. Daniel, 985

N.E.2d 843 (Mass. 2013); State v. Schmadeka, 38 P.3d 633 (Idaho Ct. App. 2001). In these

jurisdictions, the odor of burnt marijuana emanating from the passenger compartment of a vehicle,

standing alone, does not furnish probable cause to expand the search beyond the passenger

compartment. Whereas other jurisdictions—Nebraska for example—have adopted a categorical

rule that the odor of marijuana, regardless of the form, furnishes sufficient probable to search the

entire vehicle. See State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018); State v. Ruzicka, 202

Neb. 257, 274 N.W.2d 873 (1979); State v. Daly, 202 Neb. 217, 274 N.W.2d 556 (1979); State v.

6

Benson, 198 Neb. 14,251 N.W.2d 659 (1977). These two rules are in direct contradiction with one

another creating confusion and inconsistency in Fourth Amendment jurispmdence and law

enforcement procedures across the country.

The automobile exception is a well-established doctrine allowing for the warrantless search

of a lawfully stopped automobile when there is probable cause to believe the automobile contains

evidence of a crime. Carroll\. United States, 267 U.S. 132 (1925). There is probable cause to

search a vehicle if, under the totality of the circumstances, there is a "fair probability" that the

vehicle contains contraband or evidence. Illinois v. Gates, 462 U.S. 213,238 (1983). The scope of

a warrantless search under the automobile exception "is defined by the object of the search and the

places in which there is probable cause to believe that it may be found." United States v. Ross, 456

U.S. 798, 824 (1982). In California v. Acevedo, the 'object of the search' was a paper bag of

marijuana located in the trunk of the vehicle. There, the Court held that once police discovered the

paper bag, there was no longer probable cause to believe the object of the search was hidden

anywhere else in the vehicle. Under those circumstances, a continued or expanded search of the

vehicle would have been without probable cause and therefore unreasonable under the Fourth

Amendment. California v. Acevedo, 500 U.S. 565, 580 (1991).

The present case hinges on conflicting determinations of the proper "object of the search."

The Nebraska Supreme Court has adopted a categorical rule treating the odor of marijuana,

regardless of form, as sufficient to justify any intrusion into a lawfully stopped vehicle. See State

v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018); State v. Ruzicka, 202 Neb. 257, 274 N.W.2d

873 (1979); State v. Daly, 202 Neb. 217, 274 N.W.2d 556 (1979); State v. Benson, 198 Neb. 14,

251 N.W.2d 659 (1977). Accordingly, the object of the search is broadly defined as "marijuana"

writ large, thereby furnishing probable cause to search anywhere marijuana might be found.

7

Valentine, like the courts in various other jurisdictions, strongly believes that there is an immensely

relevant distinction between the odor of burnt marijuana and the odor of raw marijuana.

Specifically, the odor of burnt marijuana, without more, merely arouses suspicion of marijuana

consumption and possession of a user amount of marijuana consistent with such consumption.

Accordingly, the object of the search, upon detection of the odor of burnt marijuana, should be

limited to evidence consistent with marijuana consumption.

In accordance with the argument below. Valentine urges the Court to adopt the logical

distinction between an observation of the odor of burnt marijuana and an observation of the odor

of raw marijuana insofar as it relates to the scope of reasonable search under the automobile

exception. This distinction is consistent with longstanding Fourth Amendment principles and

better comports with the rapidly changing legislative enviroiunent regarding the personal use and

possession of small amounts of marijuana. Once this distinction is properly accounted for,

Valentine contends that Officer Dempsey did not have probable cause sufficient to continue and

expand the search of Valentine's vehicle after locating the object of the search (i.e. evidence

consistent with consumption of marijuana) and prior to developing suspicion of additional

criminality. In other words, the search of Valentine's vehicle went beyond the scope of reasonable

search under the automobile exception to the warrant requirement of the Fourth Amendment.

A. The Nebraska Court of Appeals did not properly consider the totality of the circumstances

when it failed to account for Officer Dempsey's articulated observation of the"odor of burnt

marijuana."

In affirming the trial court's denial of Valentine's motion to suppress, the appellate court

first looked to precedent and noted that the Nebraska Supreme Court has "consistently held that

officers with sufficient training and experience who detect the odor of marijuana emanating from

a vehicle have probable cause on that basis alone to search the vehicle under the automobile

exception to the warrant requirement." Valentine, 27 Neb. App. at 736. The cases cited by the court

8

will be examined closely below; suffice it to say the appellate court was confident enough in

Nebraska Supreme Court precedent to issue the narrow holding that Officer Dempsey's detection

of the odor of burnt marijuana emanating from the vehicle, standing alone, famished sufficient

probable cause "to search the entire vehicle." Id. at 737. Then, somewhat confusingly, the court

went on to issue the additional holding that Officer Dempsey's discovery of less than an ounce of

marijuana "fumish[ed] additional probable cause to make a complete search of the automobile."

Id. (internal quotations omitted).

In light of the prevailing mle in Nebraska regarding the automobile exception the warrant

requirement of the Fourth Amendment, the appellate court explicitly neglected to account for the

"commonsense distinction" between the odor of burnt marijuana and the odor of raw marijuana.

See United States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998). Insofar as the "odor of burnt

marijuana" was articulated by Officer Dempsey as a distinct observation to be considered in the

probable cause analysis, the appellate court, and presumably the trial court, wholly failed to

account for it as such. The Nebraska Supreme Court has adopted a categorical mle that the smell

of marijuana—in any form, location, or intensity—standing alone, furnishes sufficient probable

cause to justify even the most severe intmsions into a lawfully stopped automobile. See State v.

Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018); State v. Ruzicka, 202 Neb. 257, 274 N.W.2d

873 (1979); State v. Daly, 202 Neb. 217, 274 N.W.2d 556 (1979); State v. Benson, 198 Neb. 14,

251 N.W.2d 659 (1977). Two of these cases, Seckinger and Ruzicka, specifically addressed cases

dealing with an officer's detection of the "odor of burnt marijuana." Both courts disregarded the

observation articulated by the officer and referred broadly to the "odor of marijuana" so as to apply

the categorical rule. In Ruzicka, the court declared "[w]e know of no reason why there should be

a distinction between the odor of burned and unbumed marijuana." Ruzicka, 202 Neb. at 257. In

9

Seckinger, the court relied heavily on Ruzicka, Daly, and Benson and ultimately reiterated "the

general rule" as follows:

"[W]hen an officer with sufficient training and experience detects the odor of marijuana

emanating from a vehicle that is readily mobile, the odor alone furnishes probable cause to

suspect contraband will be found in the vehicle and the vehicle may be lawfully searched

under the automobile exception to the warrant requirement."

Seckinger, 301 Neb. at 975.

The categorical rule adopted in Nebraska is in direct conflict with another mle emerging

primarily out of the United States Court of Appeals for the Tenth Circuit. Specifically, "the odor

of burnt marijuana in the passenger compartment of a vehicle does not, standing alone, establish

probable cause to search the tmnk of the vehicle." United States v. Bradford, 423 F.3d 1149, 1160

(10th Cir. 2005) (citing United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993)). The Tenth

Circuit relied on this rule in at least four cases prior to Bradford. See United States v. Wald, 216

F.3d 1222 (10th Cir. 2000); United States v. Downs, 151 F.3d 1301 (10th Cir. 1998); United States

v. Parker, 72 F.3d 1444 (10th Cir. 1995); United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir.

1993). In Downs, the court explained the distinction between burnt and raw marijuana as follows:

"[TJhis court has established a commonsense distinction between the smells of burnt and

raw marijuana based on the imperative that the scope of a warrantless search 'is defined by

the object of the search and the places in which there is probable cause to believe that it

may be found.' As to the smell of burnt marijuana, Nielsen and Parker recognize that the

smell of burnt marijuana is generally consistent with personal use of marijuana in the

passenger compartment of an automobile. In such a case, therefore, there is no fair

probability that the trunk of the car contains marijuana and an officer must limit the search

10

to the passenger compartment absent corroborating evidence of contraband. When, on the

other hand, an officer encounters, as was the case here, the overpowering smell of raw

marijuana, there is a fair probability that the car is being used to transport large quantities

of marijuana and that the marijuana has been secreted in places other than the passenger

compartment."

Downs, 151 f.3datl303.

Valentine requests this Court to adopt the "commonsense distinction" outlined by the Tenth

Circuit above and clarify that a proper totality of the circumstances analysis of probable cause

under the automobile exception to the Fourth Amendment warrant requirement should account for

the "odor of burnt marijuana" as such rather than conflating the observation to accommodate an

apparent preference for a categorical rule.

B. Officer Dempsey conducted an unreasonable search of Valentine's vehicle because he

expanded the search beyond the time and intensity required to locate the object of the search

in violation of the Court's opinion in United States v. Ross.

Once the distinction between the odor of burnt marijuana and the odor of raw marijuana is

accounted for, it is clear that Officer Dempsey did not have probable cause to continue and expand

the search after discovering less than an ounce of marijuana in the center console. At this point in

the search, the evidence available to Officer Dempsey was limited to the odor of burnt marijuana,

less than an ounce ofunsmoked and unpackaged marijuana in plastic baggies, a small digital scale,

and two empty plastic haggles. All of this evidence is entirely consistent with the information

provided by Valentine that a recent passenger had smoked marijuana in the vehicle. Indeed, Officer

Dempsey later testified that he did not discover any evidence to suggest that Valentine himself had

consumed marijuana.

Based on the odor of burnt marijuana alone. Officer Dempsey had probable cause to believe

that someone had recently consumed marijuana in the vehicle. Accordingly, the object of the

11

search was evidence consistent with the consumption of marijuana. The subsequent discovery of

less than an ounce of unsmoked and unpackaged marijuana bolstered that suspicion and merely

justified the conclusion that Valentine was in possession of less than an ounce of marijuana which

is an infraction punishable by a fine under Nebraska law. At that point in the stop, Officer Dempsey

had located the object of the search (i.e. evidence of marijuana consumption) and failed to

articulate evidence in support of additional probable cause that evidence of marijuana consumption

would be located anywhere else in the vehicle. Therefore, Officer Dempsey should have simply

issued citations for the marijuana infraction and the window tint violation and let Valentine on his

way. Nevertheless, Officer Dempsey continued and expanded his search to look for evidence of

additional criminality. At best, this expansion of the search was based on mere unsubstantiated

and unarticulated suspicions. At worst, as suggested by his testimony, Officer Dempsey has simply

developed a habit of indiscriminately dismantling car doors during traffic stops. Regardless, the

continued and expanded search of Valentine's vehicle went beyond the scope of a reasonable

search because it went beyond the time and intensity required to locate the object of the search in

violation of the Court's opinion in Ross.

C. Officer Dempsey's invasive search of the passenger door was without probable cause and

therefore unreasonable under the Fourth Amendment.

Officer Dempsey's invasive search of the passenger door was apparently based, not on any

observations or articulable suspicion of criminal activity, but rather on Officer Dempsey's habitual

and indiscriminate practice of searching inside passenger door panels for guns. While it is tme that

dismantling a portion of a vehicle in search of contraband is not per se unreasonable, such a search

still requires probable cause directed to that portion of the vehicle. See United States v. Guerrero-

Sanchez, 412 F. App'x. 133 (10th Cir. 2011) (holding that a positive indication by a dmg dog

furnished probable cause to dismantle that portion of the vehicle in search of contraband). In

12

Guerrero-Sanchez, the Tenth Circuit explained that dismantling a portion of the vehicle was

justified "because evidence of a hidden compartment not only contributes to probable cause to

search a vehicle but supports an officer's dismantling of a vehicle to find it." Id. at 141; see also

United States v. Bernal, 2017 U.S. Dist. LEXIS 193809 (finding that disassembling the interior of

a vehicle was justified by a dmg dog alert and subsequent observations of obvious after-market

alterations to the interior of a vehicle).

These cases can be distinguished from the present case insofar as Officer Dempsey failed

to articulate any evidence of a hidden compartment or secreted contraband inside the passenger

door. Rather, he simply stated he regularly dismantles passenger doors in search of guns even

where, as here, there was no evidence to suggest the existence of a gun. The only arguable

justification for dismantling the passenger door is that there was probable cause to believe the

object of the ongoing search could be hidden therein. However, the object of the search in the

present case was evidence consistent with the consiunption of marijuana. Officer Dempsey failed

to articulate even the slightest suspicion, let alone probable cause, that evidence consistent with

the consumption of marijuana was secreted in a hidden compartment inside the passenger door.

Indeed, after searching, there was not any evidence consistent with the consumption of marijuana

secreted therein.

Unlike in Guerrero-Sanchez and Bernal, there was no alert by a drug dog in this case.

Nothing found inside the center console indicated that contraband could be secreted in the interior

of the passenger door. Rather, Officer Dempsey simply searched a location where he commonly

searches without regard for the circumstances of the present case. Accordingly, Officer Dempsey's

invasive search of the passenger door was without probable cause and was therefore unreasonable

under the Fourth Amendment.

13

D. Officer Dempsey's search of the trunk was without probable cause and therefore

unreasonable under the Fourth Amendment.

Officer Dempsey's expansion of the search to the trunk of Valentine's vehicle was without

probable cause to believe the object of the search could be secreted therein. Once again, there was

no alert to the trunk by a drug dog. There was no odor emanating from the trunk. There was nothing

to suggest that evidence consistent with marijuana consumption would be found inside the trunk.

Indeed, the Tenth Circuit as consistently pointed out that it is unreasonable to think that someone

had been consuming marijuana in the trunk of a car. See United States v. Wald, 216 F.3d 1222,

1226(1 Oth Cir. 2000).

It may be argued that the discovery of a small amount of marijuana inside the center console

simply furnished additional probable cause to expand the search to the trunk of the vehicle. See

United States v. Bradford, 423 F.3d 1149, (10th Cir. 2005) (affirming the rule that the odor of

burnt marijuana alone does not establish probable cause to search the tmnk, and adding, "[rjather,

an officer obtains probable cause to search the trunk of the vehicle if he smells marijuana in the

passenger compartment and finds corroborating evidence of contraband"). It may very well be tme

that, generally speaking, the odor of burnt marijuana and the subsequent discovery of "contraband"

often furnishes probable cause to search the tmnk. However, application of this rule to the present

case would lead to an illogical result. The very reason that the Tenth Circuit adopted the

commonsense distinction between burnt marijuana and raw marijuana was to acknowledge the

commonsense distinction between suspicion of personal marijuana consumption and large-scale

dmg trafficking. See United States v. Wald, 216 F.3d 1222 (10th Cir. 2000) ("This rule is premised

on the common-sense proposition that the smell of burnt marijuana is indicative of dmg usage,

rather than drug trafficking").

14

The underlying distinction being made by the Tenth Circuit is between evidence consistent

with marijuana consumption and evidence consistent with large-scale drug trafficking. It is

precisely because officers only have probable cause of personal consumption that a reasonable

search is confined to the passenger compartment when the odor of burnt marijuana is detected. If

additional evidence consistent with personal marijuana consumption is all the officers discovered

(e.g., less than an ounce of marijuana), then officers still only have probable cause of personal

consumption. Allowing officers to expand their search based on such observations would be to

adopt and obliterate the commonsense distinction in one fell swoop.

Without additional observations sufficient to furnish probable cause to believe the object

of the search could be secreted in the trunk. Officer Dempsey's expansion of the search to the trunk

of Valentine's vehicle was without probable cause and therefore unreasonable under the Fourth

Amendment.

II

The Nebraska Court of Appeals also erred when it affirmed the district court's

interpretation of Nebraska Revised Statute § 28-1206. Specifically, the Court of Appeals, like the

district court before it, erroneously read ambiguity into the statute despite the fact that the plain

meaning of the statute was apparent. In so doing, both courts denied Valentine his Fifth

Amendment right to due process of law and his Sixth Amendment right to be informed of the

nature and cause of the accusation.

The Fifth Amendment to the U.S. Constitution guarantees a criminal defendant's right to

due process of law. U.S. Const. Amend. V. The Sixth Amendment to the U.S. constitution

guarantees the right to be "informed of the nature and cause of the accusation." U.S. Const. Amend.

VI. Courts must interpret what a legislature has expressed in the plain meaning of a statute.

15

Callahan v. United States, 364 U.S. 587 (1961). As a result of the April 2017 revision, the

Nebraska Legislature omitted the word "or" from the statute, effectively creating a list of three

necessary elements which must be met for the statute to apply. See State v. O'Laughlin, 372 P.3d

342 (2016); see also Encyclopedia of Rhetoric and Composition, 41, Ed. Theresa Enos, 1996; and

Linda L. Berger, Studying and Teaching "Law as Rhetoric": A Place to Stand, 16, 3, 51 n.179

(2010) (discussing that the omission or absence of a conjunction between parts of a sentence, or

asyndenton, suggest unity of the listed items); A. Scalia & B. Gamer, Reading Law: The

Interpretation of Legal Texts, 119 (2012) (asserting "the general mle interpreting asyndetic

sentences is to imply 'and' as the final coordinating conjunction"). Moreover, it is presumed that

legislatures know the language used in a statute and, if a subsequent act on the same or similar

subject uses different terms in the same connection, the court must presume that a change in the

law was intended. In re Estate ofPsota, 297 Neb. 570, 900 N.W.2d 790 (2017).

The Nebraska Legislature is presumed to know the language used in § 28-1206 at all times

and throughout revisions thereof. By specifically omitting the word "or," the legislature is

presumed to have intended a change in the law which required all three subsections to be met

before the statute applies. However, at trial, the prosecution wholly failed to present any evidence

with regard to subsections (l)(a)(ii) and (l)(a)(iii), and Valentine was entitled to a directed verdict

on that account. Nevertheless, both the district court and the appellate court avoided this result by

reading ambiguity into the statute. Both courts suggested there was ambiguity because it was

equally as likely that the legislature had intended to include the word "or" as it is that the legislature

had intended to include the word "and." Importantly, however, neither court addressed the also

likely scenario that the legislature did not intend to include either word. Valentine argues that the

statute, as it was written at the time of his offense, was not ambiguous at all. Rather, according to

16

the well-known principles of construction discussed above, the plain meaning of the statute clearly

indicates a list of essential elements to be met before application of the statute. Without ambiguity,

it was error for the lower courts to resort to legislative history to imply the legislature's intent to

include the word "or." This error deprived Valentine of due process of law and the right to be

accurately informed of the nature and cause of the accusation. Valentine requests this court to

reverse the erroneous determination that the statute was ambiguous as written and vacate

Valentine's wrongful conviction for possession of a deadly weapon by a prohibited person.

Ill

Finally, the Nebraska Court of Appeals erred when it affirmed the district court's refusal

of Valentine's proposed jury instructions. Under Nebraska law, to establish reversible error from

the district court's failure to five a requested jury instruction. Valentine bore the burden to show

(1) the tendered instmction was a correct statement of the law, (2) the tendered instruction was

warranted by the evidence, and (3) Valentine was prejudiced by the coiirt's refusal. State v.

Castellanos, 26 Neb. App. 310, 918 N.W.2d 345 (2018).

First, the district court refused Valentine's proposed Jury Instmction No. 3 which reflected

the plain meaning of the statute discussed above. In this instance, not only did Valentine's proposal

correctly state the law, the final Jury Instruction No. 3 misstated the law. Because of the erroneous

interpretation of § 28-1206, the final Jury Instruction No. 3 impermissibly included the word "or"

after subsection (l)(a)(ii). Valentine's proposed instruction would have required the jury to find

all three subsections had been met to find Valentine guilty of violating § 28-1206. This is the

correct statement of law based on the plain meaning of § 28-1206. By refusing Valentine's

proposed instruction, the district court irreversibly prejudiced Valentine and therefore constitutes

reversible error.

17

Second, the district court refused Valentine's proposed amendments to Jury Instruction No.

6 to include the words "knowingly or intentionally." If accepted, Jury Instmction No. 6 would

have read, "the defendant did knowingly or intentionally possess a deadly weapon." However, the

district court refused Valentine's proposal and excluding any reference to the element of intent.

Valentine's proposed changes were an accurate statement of law, were warranted by the evidence.

Indeed, the inclusion of "knowingly or intentionally" would have brought Jury Insfa-uction No. 6

in line with the language of Jury Instruction No. 5. Instruction No. 5 referred to the possession of

marijuana and included the words "knowingly or intentionally" with regard to possession.

Valentine was merely requesting that the district court also include that language with regard to

possession of a firearm in Instmction No. 6. The exclusion of the proposed language prejudiced

Valentine insofar as it was misleading on the issue of the criminal intent element. The jury was

asked to carefully consider the instructions. A careful consideration of Instmctions No. 5 and No.

6 would reveal the apparent inconsistencies and thereby influence jury deliberations resulting in

reversible error.

Third, the district court refused Valentine's proposed instruction which would have

included the clarifying phrase "proximity, standing alone, is insufficient to prove possession." This

is a correct statement of law and has been integrated into the pattern jury instructions in Nebraska.

See NJI2d Crim. 4.2. This is precisely the type of case in which such a clarifying statement would

be warranted by the evidence. Valentine was found inside a vehicle with a handgun secreted inside

the passenger door. It is clear that Valentine was in close proximity to the handgun, however, as

is pointed out by the proposed instruction, proximity alone is not enough. Valentine, having

proposed a valid and relevant instruction was entitled to its inclusion. The refusal of such failed to

instruct the jury on all relevant components of the law and prejudiced Valentine accordingly

18

resulting in reversible error. Valentine urges the Court to reverse the Nebraska Court of Appeals'

erroneous refusals of Valentine's proposed jury instructions and remand this case for a new trial.

CONCLUSION

This case presented an opportunity for The Court to clarify a fundamental inconsistency in

Fourth Amendment jurispmdence regarding the smell of burnt marijuana verse raw marijuana,

enforce the limiting power of the Fourth Amendment against unlawful and excessive government

intmsion, properly interpret plain statutory language, and instruct on correct and consistent

statements of law.

The lower courts erred in these respects and Valentine urges a reversal of the lower courts'

holdings with instruction on further proceedings.

RESPECTFULLY SUBMITTED:

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Thomas C.Riley, #1^525

Douglas County Public Defender

Attorney for Petitioner

Je^at West, #24664^

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Assistant Public Defender

Attorney for Petitioner

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