Questions surrounding probable cause for a search and the timing of reading a suspect his Miranda rights were at the heart of a motion to suppress evidence in Dawes County District Court.
“I feel super useless in these cases where they say they smell marijuana, and it gives them carte blanche to search everything,” said Public Defender Jerrod Jaeger when arguing the motion to suppress last week.
Jaeger is representing Shawn Hollow Horn, 28, of Alliance, who was arrested on charges of possession of a firearm by a felon, possession of a controlled substance, driving under suspension, possession of less than one ounce of marijuana and possession of drug paraphernalia after a Nebraska State Patrol trooper stopped to render assistance to what appeared to be a disabled vehicle near Taco John’s in Chadron in July 2017.
Trooper Jared Dusatko testified that as he approached a white Jeep near the intersection of Highways 20 and 385, there were two individuals outside the vehicle and a man, later identified as Hollow Horn, sitting in the driver’s seat. The trooper testified that he had previous experience with one of the men outside of the vehicle, and that the prior contact was drug related.
Upon asking Hollow Horn for the vehicle’s registration and insurance, Trooper Dusatko testified he smelled marijuana. Hollow Horn disputed the allegation, saying the smell was that of sage, but the trooper took him to his patrol unit and did a pat down search.
The search turned up a meth-style pipe, bags of what the trooper believed to be methamphetamine, a bag of suspected marijuana and dozens of small, empty baggies.
Jaeger argued that because Hollow Horn was not free to leave as soon as the meth-style pipe was discovered, he should have been advised of his rights at that time. That didn’t occur, however, and Jaeger said that because of the delay, any incriminating statements Hollow Horn may have made should be thrown out.
Jaeger also argued that the trooper may not have had probable cause to search his client in the first place. While Trooper Dusatko said he smelled marijuana, Hollow Horn informed the trooper it was sage.
“There is an alternate explanation,” Jaeger told the judge.
The trooper’s testimony also made it clear that the vehicle, which was also searched, did not belong to Hollow Horn, who denied knowledge of an unloaded pistol discovered near the driver’s seat.
Trooper Dusatko said he patted down one of the individuals who were outside the vehicle and found nothing, but did not get the identity of the third man at the scene, nor did he ask Hollow Horn what the problem with the vehicle was. Lab tests later confirmed the illicit substances as methamphetamine and marijuana, with the meth totaling less than a gram divided unevenly between seven bags.
On cross examination by Jaeger, the trooper admitted that the drugs may not have been intended for distribution, as users sometimes divide drugs up for personal use. One of two cell phones seized was also examined, and the trooper said it is his opinion that text messages on that phone indicated Hollow Horn was planning to distribute the drugs. Upon learning that the report on the phone was available three weeks ago, Jaeger questioned why it had not been turned over to County Attorney Vance Haug, who in turn is required to provide it to the defense.
Trooper Dusatko said Haug hadn’t asked for the report, and though it is the officer’s responsibility to provide it, he had “been working, not giving him reports.”
District Court Judge Travis O’Gorman took the motion to suppress under advisement but ordered the trooper to turn over the cell phone evidence this week.