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Legal Loopholes to Criminal Charges Relating to the Possession of Marijuana in Nebraska

Posted By Berry Law Firm || 21-Jan-2015

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 III misdemeanor.

(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 the process.

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.

Invalid Consent

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 detention.

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.