State v. Rogers , 297 Neb. 265 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/25/2017 12:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE v. ROGERS
    Cite as 
    297 Neb. 265
    State of Nebraska, appellee, v.
    Latriesha L. Rogers, appellant.
    ___ N.W.2d ___
    Filed July 21, 2017.     No. S-16-1114.
    1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment pro-
    tection is a question of law that an appellate court reviews independently
    of the trial court’s determination.
    2.	 Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
    When a motion to suppress is denied pretrial and again during trial on
    renewed objection, an appellate court considers all the evidence, both
    from trial and from the hearings on the motion to suppress.
    3.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    4.	 Constitutional Law: Search and Seizure. The Fourth Amendment to
    the U.S. Constitution and article I, § 7, of the Nebraska Constitution
    guarantee against unreasonable searches and seizures.
    5.	 Search and Seizure: Evidence: Trial. Evidence obtained as the fruit
    of an illegal search or seizure is inadmissible in a state prosecution and
    must be excluded.
    6.	 Constitutional Law: Police Officers and Sheriffs: Search and
    Seizure: Arrests. The Nebraska Supreme Court has described three
    tiers of police-citizen encounters. A tier-one police-citizen encounter
    involves the voluntary cooperation of the citizen elicited through non-
    coercive questioning and does not involve any restraint of liberty of the
    citizen. Because tier-one encounters do not rise to the level of a seizure,
    they are outside the realm of Fourth Amendment protection. A tier-two
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    police-citizen encounter involves a brief, nonintrusive detention during
    a frisk for weapons or preliminary questioning. A tier-three police-
    citizen encounter constitutes an arrest, which involves a highly intrusive
    or lengthy search or detention. Tier-two and tier-three police-citizen
    encounters are seizures sufficient to invoke the protections of the Fourth
    Amendment to the U.S. Constitution.
    7.	 Constitutional Law: Search and Seizure. A seizure in the Fourth
    Amendment context occurs only if, in view of all the circumstances sur-
    rounding the incident, a reasonable person would have believed that he
    or she was not free to leave.
    8.	 Police Officers and Sheriffs: Search and Seizure. In addition to situ-
    ations where an officer directly tells a suspect that he or she is not free
    to go, circumstances indicative of a seizure may include the threaten-
    ing presence of several officers, the display of a weapon by an officer,
    some physical touching of the citizen’s person, or the use of language or
    tone of voice indicating the compliance with the officer’s request might
    be compelled.
    9.	 Constitutional Law: Police Officers and Sheriffs: Search and
    Seizure. An officer’s merely questioning an individual in a public
    place, such as asking for identification, is not a seizure subject to Fourth
    Amendment protections, so long as the questioning is carried on without
    interrupting or restraining the person’s movement.
    10.	 ____: ____: ____. An officer’s request that an individual step out of
    a parked vehicle does not automatically transform a tier-one police-
    citizen encounter into a tier-two encounter. But, if the totality of the
    circumstances are such that a reasonable person would believe he or she
    was not free to ignore the request and stay in the vehicle, a seizure has
    occurred for Fourth Amendment purposes.
    11.	 Probable Cause: Words and Phrases. Reasonable suspicion entails
    some minimal level of objective justification for detention, something
    more than an inchoate and unparticularized hunch, but less than the level
    of suspicion required for probable cause.
    12.	 Investigative Stops: Police Officers and Sheriffs: Probable Cause.
    Whether a police officer has a reasonable suspicion based on sufficient
    articulable facts depends on the totality of the circumstances and must
    be determined on a case-by-case basis.
    13.	 Sentences: Appeal and Error. In reviewing a sentence imposed within
    the statutory limits, an appellate court considers whether the sentenc-
    ing court abused its discretion in considering and applying the relevant
    factors as well as any legal principles in determining the sentence to
    be imposed.
    14.	 Sentences. When imposing a sentence, the sentencing court is to con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experience,
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    STATE v. ROGERS
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    297 Neb. 265
    (4) social and cultural background, (5) past criminal record or record of
    law-abiding conduct, and (6) motivation for the offense, as well as (7)
    the nature of the offense and (8) the amount of violence involved in the
    commission of the crime.
    15.	 ____. Because the appropriateness of a sentence is necessarily a subjec-
    tive judgment and includes the sentencing judge’s observation of the
    defendant’s demeanor and attitude and all the facts and circumstances
    surrounding the defendant’s life, a sentencing court is accorded very
    wide discretion in imposing a sentence.
    Appeal from the District Court for Lancaster County: Lori
    A. M aret, Judge. Affirmed.
    Christopher Eickholt for appellant.
    Douglas J. Peterson, Attorney General, and Joe Meyer for
    appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Cassel, J.
    I. INTRODUCTION
    In this direct appeal, Latriesha L. Rogers challenges the
    denial of her motion to suppress evidence seized during the
    detention and search of a vehicle in which she was a passenger.
    The critical issue is when the encounter reached the second-tier
    and what reasonable suspicion existed at that point. Rogers
    also alleges that she received an excessive sentence. Finding
    no merit in her arguments, we affirm.
    II. BACKGROUND
    1. Police-Citizen Encounter
    On August 5, 2015, a Lincoln police officer located a
    vehicle associated with an individual wanted on a federal
    indictment. The vehicle was parked on a residential street and
    had two occupants. A second vehicle was parked in front of
    the target vehicle with the engine running and three occupants.
    The officer parked her patrol vehicle in the middle of the
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    STATE v. ROGERS
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    street and approached the second vehicle on foot to ensure the
    wanted individual was not inside and about to leave.
    On approaching the vehicle, the officer noticed the front
    seat passenger reach under his seat and directed him to stop
    in case he had a weapon. The officer then spoke to the driver
    and explained that she was looking for a wanted individual.
    Within 20 to 30 seconds, three officers from the Lincoln
    Police Department and the Metro Area Fugitive Task Force
    arrived to assist the lead officer in identifying the occupants of
    the vehicle.
    After a minute had passed, the officer realized that the
    wanted individual was not in the vehicle. However, she contin-
    ued to attempt to identify the occupants of the vehicle, because
    she recognized the driver as a contact for several narcotics
    investigations and believed he was involved with the selling
    of narcotics. She also suspected the front seat passenger had
    hidden a weapon or contraband under the front seat while she
    walked up to the vehicle. She did not recognize that passenger
    or the one in the back seat, but the back seat passenger was
    later identified as Rogers.
    While identifying the occupants of the vehicle, the officers
    had the three individuals exit the vehicle and the front seat
    passenger was arrested after determining there was a warrant
    for his arrest. After Rogers exited the vehicle, the lead officer
    looked through the windows and noticed a purse with a small
    plastic bag sticking out of it on the floor in the back seat.
    The officer recognized the bag as consistent with those used
    in narcotics sales and asked for consent to search the vehicle,
    but her request was denied. At this point, the officers called
    for a drug detection dog to conduct a sniff search around
    the vehicle.
    The drug detection dog alerted on the driver’s side of the
    vehicle, and the officers then conducted a search of the vehicle
    and its contents—including the purse on the floor of the back
    seat. The search of the purse yielded a pipe and the observed
    plastic bag which contained some residue. The pipe pretested
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    positive for amphetamines. After the pipe and purse were con-
    firmed to belong to Rogers, she was arrested and charged with
    possession of a controlled substance.
    2. Motion to Suppress
    Rogers filed a motion to suppress evidence concerning the
    stop and search of the vehicle and the evidence seized as a
    result of the search. Following a hearing, the district court
    overruled the motion. The court concluded that the encounter
    was initially a first-tier encounter that escalated to a second-
    tier and eventually a third-tier encounter. And, it found that
    there was reasonable suspicion of illegal activity to justify
    the ­second-tier investigation based on the lead officer’s past
    encounters with the driver of the vehicle, “the furtive move-
    ments of the front seat passenger, and the observation of the
    baggie in the purse in the rear passenger floor board.”
    The case proceeded to trial, where Rogers preserved her
    objection raised in the motion to suppress. After all the evi-
    dence was presented, the jury found Rogers guilty of the crime
    charged. The district court sentenced her to 20 months’ to 5
    years’ imprisonment.
    Rogers appealed, and we moved the case to our docket.1
    III. ASSIGNMENTS OF ERROR
    Rogers assigns, restated, that the district court erred in
    (1) overruling her motion to suppress the stop and search of
    a vehicle in which she was a passenger and the subsequent
    search and seizure of its contents and (2) imposing an exces-
    sive sentence.
    IV. STANDARD OF REVIEW
    [1,2] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review.2
    1
    See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
    2
    State v. Milos, 
    294 Neb. 375
    , 
    882 N.W.2d 696
    (2016).
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    STATE v. ROGERS
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    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protection is a question of
    law that an appellate court reviews independently of the trial
    court’s determination.3 When a motion to suppress is denied
    pretrial and again during trial on renewed objection, an appel-
    late court considers all the evidence, both from trial and from
    the hearings on the motion to suppress.4
    [3] We will not disturb a sentence imposed within the statu-
    tory limits absent an abuse of discretion by the trial court.5
    V. ANALYSIS
    1. Seizure
    Rogers alleges that the district court erred when it overruled
    her motion to suppress evidence obtained as a result of her
    encounter with law enforcement officials on August 5, 2015.
    She argues that the initial encounter with the lead law enforce-
    ment officer amounted to a seizure when she was detained
    after the officer determined the wanted individual was not in
    the vehicle. And, she argues that the investigatory stop was not
    supported by reasonable suspicion.
    [4,5] The Fourth Amendment to the U.S. Constitution and
    article I, § 7, of the Nebraska Constitution guarantee against
    unreasonable searches and seizures.6 Evidence obtained as the
    fruit of an illegal search or seizure is inadmissible in a state
    prosecution and must be excluded.7
    To analyze the legality of the search and seizure, we must
    first determine when the seizure occurred and then address
    whether the seizure was supported by reasonable suspicion.
    3
    Id.
    4
    State v. Tyler, 
    291 Neb. 920
    , 
    870 N.W.2d 119
    (2015).
    5
    State v. Loding, 
    296 Neb. 670
    , 
    895 N.W.2d 669
    (2017).
    6
    State v. Milos, supra note 2.
    7
    
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    (a) Classification of
    Police-Citizen Encounter
    [6] We have described three tiers of police-citizen encoun-
    ters.8 A tier-one police-citizen encounter involves the volun-
    tary cooperation of the citizen elicited through noncoercive
    questioning and does not involve any restraint of liberty of the
    citizen.9 Because tier-one encounters do not rise to the level of
    a seizure, they are outside the realm of Fourth Amendment pro-
    tection.10 A tier-two police-citizen encounter involves a brief,
    nonintrusive detention during a frisk for weapons or prelimi-
    nary questioning.11 A tier-three police-citizen encounter con-
    stitutes an arrest, which involves a highly intrusive or lengthy
    search or detention.12 Tier-two and tier-three police-citizen
    encounters are seizures sufficient to invoke the protections of
    the Fourth Amendment to the U.S. Constitution.13
    [7-9] A seizure in the Fourth Amendment context occurs
    only if, in view of all the circumstances surrounding the
    incident, a reasonable person would have believed that he or
    she was not free to leave.14 In addition to situations where an
    officer directly tells a suspect that he or she is not free to go,
    circumstances indicative of a seizure may include the threaten-
    ing presence of several officers, the display of a weapon by
    an officer, some physical touching of the citizen’s person, or
    the use of language or tone of voice indicating the compli-
    ance with the officer’s request might be compelled.15 But an
    officer’s merely questioning an individual in a public place,
    8
    See State v. Van Ackeren, 
    242 Neb. 479
    , 
    495 N.W.2d 630
    (1993).
    9
    State v. Milos, supra note 2.
    10
    
    Id. 11 Id.
    12
    
    Id. 13 Id.
    14
    
    Id. 15 Id.
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    such as asking for identification, is not a seizure subject
    to Fourth Amendment protections, so long as the question-
    ing is carried on without interrupting or restraining the per-
    son’s movement.16
    Without repeating all the facts recited above, it is clear that
    the police-citizen encounter began as a tier-one encounter and
    escalated to a tier-two encounter when Rogers and the other
    two passengers were directed to exit the vehicle. The district
    court did not account for the passengers exiting or being
    asked to exit the vehicle when it made its determination on
    the motion to suppress. Thus, on this point, we are not con-
    strained by a specific finding of historical fact.
    [10] An officer’s request that an individual step out of a
    parked vehicle does not automatically transform a tier-one
    police-citizen encounter into a tier-two encounter.17 But, if the
    totality of the circumstances are such that a reasonable person
    would believe he or she was not free to ignore the request
    and stay in the vehicle, a seizure has occurred for Fourth
    Amendment purposes.18 The circumstances of the encounter
    demonstrate that the law enforcement officials made a sig-
    nificant show of authority before asking Rogers to exit the
    vehicle. The passengers were outnumbered and surrounded by
    law enforcement officials. And, Rogers was asked to exit the
    vehicle after one of the other passengers was arrested. These
    16
    
    Id. 17 Id.
    18
    See State v. Hedgcock, 
    277 Neb. 805
    , 
    765 N.W.2d 469
    (2009). See,
    also, Delaware v. Prouse, 
    440 U.S. 648
    , 
    99 S. Ct. 1391
    , 
    59 L. Ed. 2d 660
    (1979); Frette v. City of Springdale, 
    331 Ark. 103
    , 
    959 S.W.2d 734
          (1998); Sharp v. U.S., 
    132 A.3d 161
    (D.C. 2016); Popple v. State, 
    626 So. 2d 185
    (Fla. 1993); People v Freeman, 
    413 Mich. 492
    , 
    320 N.W.2d 878
    (1982); State in Interest of A.P., 
    315 N.J. Super. 166
    , 
    716 A.2d 1211
          (1998); People v Harrison, 
    57 N.Y.2d 470
    , 
    443 N.E.2d 447
    , 
    457 N.Y.S.2d 199
    (1982); Johnson v. State, 
    658 S.W.2d 623
    (Tex. Crim. App. 1983),
    overruled on other grounds, Woods v. State, 
    956 S.W.2d 33
    (Tex. Crim.
    App. 1997).
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    circumstances surrounding the request to exit the vehicle
    would have made a reasonable person believe that he or she
    was not free to stay in the vehicle. Consequently, for the
    request to exit the vehicle to be a lawful seizure, the officer
    needed to have reasonable suspicion of criminal activity.
    (b) Reasonable Suspicion
    Rogers alleges that the lead officer had no reasonable suspi-
    cion of illegal activity to justify the detention of the passengers
    of the vehicle after the lead officer determined the wanted
    individual was not in the vehicle. She argues that the deten-
    tion was only supported by a “‘hunch’” that the driver may be
    involved in illegal activity because he lived with individuals
    who were being investigated for the sale of narcotics.19
    [11,12] Reasonable suspicion entails some minimal level of
    objective justification for detention, something more than an
    inchoate and unparticularized hunch, but less than the level of
    suspicion required for probable cause.20 Whether a police offi-
    cer has a reasonable suspicion based on sufficient articulable
    facts depends on the totality of the circumstances and must be
    determined on a case-by-case basis.21
    In this case, the lead officer witnessed the front seat pas-
    senger reach underneath his seat, which suggested to her that
    he was possibly retrieving or hiding contraband or weapons.22
    The officer also recognized the driver as a known contact
    for narcotics, and the assisting officers provided narcotics
    intelligence regarding the front seat passenger. These facts
    combined with the close proximity of the vehicle to the target
    vehicle associated with a wanted individual were sufficient to
    19
    Brief for appellant at 17.
    20
    State v. Au, 
    285 Neb. 797
    , 
    829 N.W.2d 695
    (2013).
    21
    State v. Wells, 
    290 Neb. 186
    , 
    859 N.W.2d 316
    (2015).
    22
    See State v. Voichahoske, 
    271 Neb. 64
    , 
    709 N.W.2d 659
    (2006) (determining
    that observing passenger reach under seat to stow something contributed to
    reasonable suspicion).
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    give rise to a reasonable suspicion that the occupants of the
    vehicle were involved in illegal drug activity.
    After the lead officer observed the small plastic bag, similar
    to those used in narcotics sales, inside Rogers’ purse, the offi-
    cers had reasonable suspicion to further detain Rogers and the
    other passengers of the vehicle for a drug detection dog sniff.
    It is undisputed that the drug detection dog sniff was initiated
    and concluded within a reasonable time and that the officers
    had probable cause to search the vehicle after the dog alerted to
    the presence of drugs. Therefore, the district court did not err
    in overruling Rogers’ motion to suppress.
    2. Sentence
    Rogers alleges that she received an excessive sentence,
    because the district court “failed to meaningfully consider
    the circumstances surrounding the offense, the nature of the
    offense, the age, mentality and history of [Rogers] and the
    circumstances relating to [Rogers’] life.”23 She argues that the
    district court made no specific factual findings to justify the
    sentence and should have explained the maximum sentence
    that “should be saved for the ‘worst of the worst’ offenders.”24
    Because Rogers was convicted of a Class IV felony committed
    before August 30, 2015, she was subject to a sentence of up
    to 5 years’ imprisonment, a $10,000 fine, or both.25 Thus, her
    sentence of 20 months’ to 5 years’ imprisonment was within
    the statutory limits.
    [13,14] In reviewing a sentence imposed within the statu-
    tory limits, an appellate court considers whether the sentenc-
    ing court abused its discretion in considering and applying the
    relevant factors as well as any legal principles in determining
    the sentence to be imposed.26 When imposing a sentence, the
    23
    Brief for appellant at 21.
    24
    
    Id. at 23.
    25
    Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014). See, also, § 28-105(8)
    (Reissue 2016) and Neb. Rev. Stat. § 28-116 (Reissue 2016).
    26
    State v. Loding, supra note 5.
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    sentencing court is to consider the defendant’s (1) age, (2)
    mentality, (3) education and experience, (4) social and cultural
    background, (5) past criminal record or record of law-abiding
    conduct, and (6) motivation for the offense, as well as (7) the
    nature of the offense and (8) the amount of violence involved
    in the commission of the crime.27
    [15] There is no evidence that the district court failed to
    consider the appropriate factors in sentencing Rogers. And,
    the court was not required to make specific factual findings to
    justify the sentence imposed. Because the appropriateness of a
    sentence is necessarily a subjective judgment and includes the
    sentencing judge’s observation of the defendant’s demeanor
    and attitude and all the facts and circumstances surround-
    ing the defendant’s life, a sentencing court is accorded very
    wide discretion in imposing a sentence.28 Accordingly, we
    conclude that the court did not abuse its discretion in imposing
    Rogers’ sentence.
    VI. CONCLUSION
    We conclude that the officers’ seizure of Rogers was sup-
    ported by reasonable suspicion and that the district court did
    not err in overruling Rogers’ motion to suppress. Because we
    also conclude that the sentence imposed did not constitute
    an abuse of discretion, we affirm the judgment of the dis-
    trict court.
    A ffirmed.
    27
    
    Id. 28 See,
    State v. Draper, 
    295 Neb. 88
    , 
    886 N.W.2d 266
    (2016); State v. Custer,
    
    292 Neb. 88
    , 
    871 N.W.2d 243
    (2015).