State v. Sievers

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/03/2018 12:09 AM CDT
- 26 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
State of Nebraska, appellee, v.
Colton W. Sievers, appellant.
___ N.W.2d ___
Filed May 18, 2018. No. S-17-518.
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
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
protect individuals against unreasonable searches and seizures by the
government.
3. Constitutional Law: Investigative Stops: Motor Vehicles: Police
Officers and Sheriffs: Search and Seizure. Temporary detention of
individuals during the stop of a moving automobile by the police, even
if only for a brief period and for a limited purpose, constitutes a seizure
of persons within the meaning of the Fourth Amendment.
4. 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.
5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.
Special law enforcement concerns, such as a police roadblock, check-
point, or other detention, made for the gathering of information
will sometimes justify the stop of a vehicle without individualized
suspicion.
6. Search and Seizure: Arrests. Reasonableness of seizures that are less
intrusive than a traditional arrest involves a weighing of the gravity
of the public concerns served by the seizure, the degree to which the
- 27 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
seizure advances the public interest, and the severity of the interference
with individual liberty.
7. Constitutional Law: Investigative Stops: Motor Vehicles: Police
Officers and Sheriffs. For purposes of determining the reasonableness,
under the Fourth Amendment, of a vehicle stop made without reason-
able suspicion, a central concern in balancing the public interest and
the interference with individual liberty is to ensure that an individual’s
reasonable expectation of privacy is not subject to arbitrary invasions
solely at the unfettered discretion of officers in the field.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Nathan J. Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ.,
and Moore, Chief Judge, and A rterburn, Judge, and Doyle,
District Judge.
Doyle, District Judge.
Colton W. Sievers appeals from his conviction for felony
possession of a controlled substance. The issue presented is
whether the stop of Sievers’ vehicle for the purpose of gather-
ing information about the presence of stolen firearms and other
criminal activity at the residence he drove from, for which a
search warrant was being sought, violated Sievers’ constitu-
tional right to be free from unreasonable searches and seizures.
We determine that the stop of Sievers’ vehicle was reasonable
and affirm the decision of the district court.
BACKGROUND
In the early morning of February 22, 2016, the York
County Sheriff’s Department received a report of a burglary
at a rural York, Nebraska, residence, where a large John
Deere gun safe had been stolen. The safe contained a Ruger
- 28 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
9-mm semiautomatic pistol, several shotguns, jewelry, approxi-
mately $30,000 in cash, legal documents, and gold coins. Law
enforcement officials immediately began an investigation. Two
suspects were identified, and on February 24, the York County
Sheriff’s Department obtained arrest warrants and arrested the
suspects the next day. Investigators interviewed the suspects,
and one of them confessed to the burglary and agreed to coop-
erate with investigators.
The burglar informant told York County investigators he
took the safe to a residence in Lincoln, Nebraska; cut it open;
and traded gold coins and money for methamphetamine. The
informant stated the safe and firearms would still be at the
Lincoln residence.
The next day, on February 26, 2016, officers transported the
informant to Lincoln, at which time, a York County sheriff’s
deputy, Paul Vrbka, met with Sgt. Duane Winkler, a supervi-
sor with the Lincoln-Lancaster County Narcotics Task Force,
to confirm the location of the building which contained the
stolen property. Following the informant’s directions, Vrbka,
Winkler, and the informant drove down an alley in a residen-
tial Lincoln neighborhood. The investigators and the informant
stopped, and the informant pointed out the residence, located
next to the alley. The residence was a single-story garage-type
outbuilding on the same property but located to the rear of
the main house, and was described by the investigators as the
“target address.”
Vrbka and Winkler observed a black Volkswagen Beetle
parked in an offstreet driveway next to the outbuilding. The
informant stated the Volkswagen was owned by the resident
of the target address, who was a “‘big methamphetamine
dealer.’” The informant stated that when he delivered the
stolen safe to the target address, he had witnessed the resi-
dent use a digital measuring scale to sell his accomplice 2
ounces of methamphetamine for $3,000 in cash. He stated the
resident had between 6 to 10 ounces of methamphetamine in
the house at that time and that he had gone to her house to
- 29 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
purchase methamphetamine on a prior occasion. Investigators
in the task force confirmed that the license plate attached to
the Volkswagen was registered to the person residing at the
target address. With the informant’s assistance, investigators
obtained a photograph of the suspected methamphetamine
dealer, which matched the driver’s license photograph of the
registered owner of the Volkswagen.
Winkler then set up “pre-warrant investigation” surveil-
lance units to monitor and observe activity at the residence.
Winkler informed plainclothes and uniformed officers that
stolen items had been transported to the residence, that drugs
had been purchased there, and that more drugs may be pres-
ent. Winkler advised the surveillance officers that they were
to help prevent evidence from leaving the target address
before the investigation was completed. The officers exer-
cised a higher level of caution due to the possible presence
of firearms.
Plainclothes narcotics officers were located near and in sight
of the target address, including Eric Schilmoeller, a deputy
sheriff for the Lancaster County Sheriff’s office who was driv-
ing an unmarked van. Two Lincoln Police Department uni-
formed “gang officers,” Max Hubka and Cole Jennings, were
recruited to participate in the surveillance. The gang officers
made contact with the plainclothes narcotics officers and dis-
cussed the investigation.
At approximately 5 p.m., on February 26, 2016, the gang
officers, in full police uniform, parked their marked police
cruiser out of view of the target residence two blocks away.
The gang officers were positioned to be available to assist
the plainclothes narcotics officers, including using the marked
police cruiser with overhead emergency lights to stop a vehicle
that left the area if so directed.
During this time, Vrbka and Winkler were in the process of
preparing an affidavit for a search warrant for the residence
and a camper-style vehicle located on the same property.
Once surveillance units were in place, Vrbka and Winkler left
- 30 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
the scene in order to present the warrant to a judge. Winkler
continued to monitor the radio and supervise the surveil-
lance officers, who were communicating with each other
and Winkler.
Schilmoeller drove the unmarked van through the alley
behind the target residence and observed a “white work type
pickup truck” parked next to the Volkswagen. The truck had an
open bed with a ladder rack and a large, closed toolbox against
the truck’s cab. The vehicles were parked side-by-side in the
back yard of the target residence. The investigators recorded
the license plates for both vehicles.
At 5:20 p.m., Schilmoeller observed the truck begin to drive
away from the outbuilding via the alley. The truck turned
onto a residential street and turned left to drive north on 10th
Street. Schilmoeller notified other members of the task force
and asked Winkler how to proceed. Winkler advised the offi-
cers to make a traffic stop to prevent the truck from leaving
with any stolen items. According to Winkler, who was no
­longer at the scene under surveillance, there was a need to
“both stop the [truck] and search it for any items taken from
the burglary in York County.” While following the truck,
the officers verified the truck had the same license plate as
the truck that was parked next to the Volkswagen. The gang
officers activated the cruiser’s overhead emergency lights and
stopped the truck. The stop occurred five blocks from the tar-
get address and was made without the observation of a traffic
or other law violation.
Hubka observed the truck had only one occupant and saw
the driver lean over and reach toward the center console area.
Hubka considered the driver’s actions to be “furtive move-
ments,” and consequently, he maintained a heightened security
alert in case the driver was hiding something or reaching for
a weapon. The officers testified they were “extra assertive”
as they contacted the driver of the truck—in part because of
the possible presence of a firearm. They ordered the driver,
Sievers, to put his hands on the steering wheel and to not
- 31 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
move as they helped remove him from the vehicle. The gang
officers searched the interior driver’s side of the truck and did
not locate any weapons, narcotics, paraphernalia, or any sto-
len items.
The narcotics officers, who were following the truck in their
unmarked vehicle, arrived simultaneously. Schilmoeller took
over contact with Sievers, walked him to the cruiser, and sat
him in the back of the cruiser with the door open and began
questioning him. Sievers claims the officers had their guns
drawn at this time, but not pointed at him. Sievers claims
he was handcuffed during the officer’s questioning. None
of the officers remember any guns being drawn, and only
Schilmoeller remembered when Sievers was handcuffed, which
he stated occurred after the questioning was completed.
Schilmoeller informed Sievers he was not under arrest, but
was being detained due to a stolen property and narcotics
investigation underway at the residence he had just driven
from. Sievers admitted he had just been inside that residence
and had just smoked marijuana before leaving, but “that
was it.” Schilmoeller attempted to obtain Sievers’ consent to
search the truck several times, but Sievers refused, stating
that there were no illegal items inside the truck and that the
truck belonged to his boss. Schilmoeller relayed to Winkler
Sievers’ admission that he had smoked marijuana at the tar-
get address and that Sievers had denied the request to search
the truck.
As the truck was leaving, and at the same time he instructed
the officers to stop the truck, Winkler also instructed another
group of officers to “lock down” the residence to prevent any-
one inside from destroying evidence. Winkler was concerned
the person in the truck may have had an opportunity to contact
a person inside the residence by cell phone. Those officers
“knocked and announced and ordered any occupants to come
to the door.” After 30 seconds, they observed movements
inside the residence which they believed indicated the destruc-
tion of evidence, at which point they forced entry and took the
- 32 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
resident into custody. At that time, the officers observed sev-
eral items of drug paraphernalia in plain view.
The officers at the residence relayed the information to
Winkler, who radioed Schilmoeller to inform him about the
presence of drug paraphernalia in the residence. Winkler
advised Schilmoeller to search the truck.
Schilmoeller searched all areas of the truck and located two
small plastic bags containing 3.1 grams of methamphetamine
inside of a soda pop can found near the center console. He
then arrested Sievers, and he testified that he placed Sievers in
handcuffs at that time. The search warrant was signed approxi-
mately 11⁄2 hours later.
Sievers was charged by information with possession of a
controlled substance, methamphetamine, a Class IV felony. He
was arraigned and pleaded not guilty.
Sievers filed a motion to suppress evidence obtained from
the stop. The court heard testimony from Hubka and Jennings,
the gang officers who conducted the stop; Schilmoeller, the
narcotics officer who questioned Sievers and conducted the
search of the truck; Winkler, the supervisor who ordered the
stop and search of the truck and the search of the target resi-
dence; and Sievers. Vrbka, the author of the warrant affidavit,
did not testify.
The officers explained their knowledge of the situation at
different points in the investigation, their process of relaying
information to each other, and how they reacted based on their
discovery of new information as the investigation progressed.
None of the officers who testified, however, observed Sievers
inside the residence, leave the residence, put anything into the
truck, or enter the truck. The informant had not provided any
information about Sievers or the truck.
Sievers asserted the officers had no way of knowing whether
he had been in the residence prior to the stop. Schilmoeller dis-
agreed, stating he had observed that the truck was unoccupied,
he observed the truck leave, and when the truck was stopped,
Sievers was driving the truck. But Schilmoeller admitted that
- 33 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
at the time of the stop, the only reason he had to believe that
Sievers had been in the target address was the fact the truck
was parked in the driveway, next to the Volkswagen, and that
he had observed it drive away from the residence. Schilmoeller
admitted he was not in a position to see if someone came from
the residence and got into the truck.
The trial court overruled the motion to suppress, stating it
found the officers’ testimony to be credible. The court stated
that “there was an ongoing investigation and the officers had
reasonable cause to believe that a crime had been committed
and had reasonable suspicion to justify the stop even though
the information was not complete or precise.”
The matter proceeded to a stipulated bench trial. Sievers
renewed his motion, which the court overruled. The court
found Sievers guilty and sentenced him to serve 90 days in the
county jail, with 3 days’ credit for time served and 1 year’s
postrelease supervision. Sievers appeals.
ASSIGNMENT OF ERROR
Sievers assigns the trial court erred in determining reason-
able suspicion existed to justify his stop and detention.
STANDARD OF REVIEW
[1] 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.
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 protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.1
ANALYSIS
[2-4] The issue presented is whether the suspicionless stop
of Sievers to gather information about stolen property and
1
State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).
- 34 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
possible criminal activity at the residence he drove from, for
which a search warrant was being sought, violated Sievers’
Fourth Amendment rights. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution
protect individuals against unreasonable searches and seizures
by the government.2 Temporary detention of individuals during
the stop of a moving automobile by the police, even if only for
a brief period and for a limited purpose, constitutes a seizure
of persons within the meaning of the Fourth Amendment.3
Evidence obtained as the fruit of an illegal search or seizure is
inadmissible in a state prosecution and must be excluded.4
There is no dispute in this case that a seizure of Sievers
occurred when he was stopped by police. We note that Sievers
has challenged only the initial stop by police; neither the prob-
able cause search of the truck nor Sievers’ arrest are at issue in
this appeal.
[5] Even a brief, limited governmental intrusion for the
purpose of investigation must be justified at its inception by
a showing of reasonable suspicion.5 A seizure for the purpose
of seeking information when police are investigating crimi-
nal activity that might pose a danger to the public, however,
may be reasonable under the Fourth Amendment even in the
absence of reasonable articulable suspicion of criminal con-
duct.6 The U.S. Supreme Court has explained that “special law
enforcement concerns,” such as a police roadblock, checkpoint,
or other detention made for the gathering of information, will
2
State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).
3
See, Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d
89 (1996); State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
4
State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
5
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
6
State v. Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016). See, U.S. v. Brewer,
561 F.3d 676 (7th Cir. 2009); Gipson v. State, 268 S.W.3d 185 (Tex. App.
2008); State v. Garrison, 911 So. 2d 346 (La. App. 2005); Baxter v. State,
274 Ark. 539, 626 S.W.2d 935 (1982).
- 35 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
sometimes justify a stop of a vehicle “without individualized
suspicion.”7 “Like certain other forms of police activity, say,
crowd control or public safety, an information-seeking stop is
not the kind of event that involves suspicion, or lack of sus-
picion, of the relevant individual.”8 In Illinois v. Lidster,9 the
U.S. Supreme Court scrutinized a highway checkpoint that was
set up to solicit information from motorists regarding a fatal
hit-and-run accident. The Court found that a suspicionless,
“information-seeking” stop made pursuant to the checkpoint
was constitutional.10 The Court emphasized the “primary law
enforcement purpose [behind the checkpoint] was not to deter-
mine whether a vehicle’s occupants were committing a crime,
but to ask vehicle occupants, as members of the public, for
their help in providing information about a crime in all likeli-
hood committed by others.”11
The facts of Lidster concerned a checkpoint set up 1 week
after the accident, at the same time of night and in the same
location. The checkpoint was “designed to obtain more infor-
mation about the accident from the motoring public.”12 The
Court distinguished an “information-seeking” stop, like the
stop in Lidster, from the checkpoint program at issue in
Indianapolis v. Edmond,13 which involved a vehicle check-
point established for the purpose of discovery and interdiction
of drug crimes, an objective which the Court said served a
“‘general interest in crime control.’”14 The Court found that
7
Illinois v. Lidster, 540 U.S. 419, 424, 124 S. Ct. 885, 157 L. Ed. 2d 843
(2004).
8
Id., 540 U.S. at 424-25.
9
Lidster, supra note 7.
10
Id., 540 U.S. at 426.
11
Id., 540 U.S. at 423 (emphasis in original).
12
Id., 540 U.S. at 422.
13
Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333
(2000).
14
Lidster, supra note 7, 540 U.S. at 424.
- 36 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
the prohibition in Edmond on searches conducted pursuant
to a “‘general interest in crime control’” did “not refer to
every ‘law enforcement’ objective” and stated that “special law
enforcement concerns will sometimes justify highway stops
without individualized suspicion.”15
[6,7] Although a suspicionless information-seeking stop
is not per se unreasonable, that does “not mean the stop
is automatically, or even presumptively, constitutional. It
simply means that [a court] must judge its reasonableness,
hence, its constitutionality, on the basis of the individual
circumstances.”16 In determining whether the stop of Sievers
was reasonable, we apply the three-part balancing test outlined
in Brown v. Texas,17 which recognizes that warrantless seizures
without reasonable suspicion may be reasonable under certain
circumstances.
The reasonableness of seizures that are less intru-
sive than a traditional arrest . . . depends “on a balance
between the public interest and the individual’s right to
personal security free from arbitrary interference by law
officers.” . . . Consideration of the constitutionality of
such seizures involves a weighing of the gravity of the
public concerns served by the seizure, the degree to which
the seizure advances the public interest, and the severity
of the interference with individual liberty. . . .
A central concern in balancing these competing con-
siderations in a variety of settings has been to [en]sure
that an individual’s reasonable expectation of privacy
is not subject to arbitrary invasions solely at the unfet-
tered discretion of officers in the field. . . . To this end,
the Fourth Amendment requires that a seizure must be
based on specific, objective facts indicating that society’s
15
Id., citing Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct.
2481, 110 L. Ed. 2d 412 (1990).
16
Id., 540 U.S. at 426.
17
Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).
- 37 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
legitimate interests require the seizure of the particular
individual, or that the seizure must be carried out pursu-
ant to a plan embodying explicit, neutral limitations on
the conduct of individual officers.18
In Lidster, the U.S. Supreme Court applied the balancing
test from Brown and found that the suspicionless checkpoint
stop at issue was reasonable.19 We have also addressed the
constitutionality of checkpoint stops. In State v. Crom,20
we cited Brown and found that a motorist has a reason-
able expectation of privacy which is not subject to arbitrary
invasions solely at the unfettered discretion of police offi-
cers in the field. We found the checkpoints at issue were
unconstitutional, because they were not administered pur-
suant to an official plan and the officers were therefore
free to subject motorists to arbitrary invasion at their unfet-
tered discretion.21
More recently, in State v. Piper,22 we applied Brown and
cited Lidster in determining that the stop of a vehicle at a
highway checkpoint conducted by the Nebraska State Patrol
was reasonable. We noted that in Michigan Dept. of State
Police v. Sitz,23 the U.S. Supreme Court approved the use of
sobriety checkpoints intended to prevent drunk driving. We
considered the purpose of the checkpoint, the degree of intru-
sion, and the discretion of the officers. We found the stop was
reasonable, because the checkpoint was intended to target alco-
hol violations, the degree of intrusion was minimal, and the
checkpoint was authorized by an approved plan and conducted
in a manner that complied with the plan and did not allow
18
Id., 443 U.S. at 50-51 (citations omitted).
19
Lidster, supra note 7.
20
State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986).
21
Id.
22
Piper, supra note 2.
23
Sitz, supra note 15.
- 38 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
the officers to exercise unfettered discretion in administering
the checkpoint.24
We addressed the constitutionality of an information-­
gathering stop of a vehicle that did not involve a checkpoint
or roadblock in State v. Woldt.25 In that case, an officer was
investigating a report of knocked-over traffic cones when,
while picking up the cones, he heard squealing tires, and he
then stopped a vehicle he thought might be involved. After the
first vehicle pulled over and stopped near the police cruiser, a
second vehicle that the officer had seen driving within a car
length or less of the first vehicle parked across the street from
the police cruiser. The officer approached the first vehicle and
smelled the odor of alcohol and observed signs that the driver
might have been impaired. The second vehicle reversed as if
to drive away, but stopped when the officer signaled the driver
to do so.
The officer wanted to speak with the second driver about
the first driver’s activities. The officer then observed the
second driver was impaired, and the second driver was then
arrested, charged, and convicted of driving under the influ-
ence. In applying the test from Brown, we determined the
stop was reasonable because of the following: The circum-
stances presented a grave public concern; driving under the
influence, which can rise to the level of a Class II felony,
presents a threat to other citizens on the road; the stop
advanced the public interest, because it was reasonable to
conclude the second driver would have relevant information
and the stop would have allowed the officer to obtain the
driver’s contact information and a witness statement; and the
interference with the driver’s liberty was slight, because he
had already stopped.26
24
Piper, supra note 2.
25
Woldt, supra note 6.
26
Id.
- 39 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
Since Lidster, courts have applied the special law enforce-
ment concerns rationale to non-checkpoint stops and found
such stops reasonable.27 In U.S. v. Brewer,28 the Seventh
Circuit applied Lidster and upheld a stop of a vehicle based
upon a report of gunfire when it was the only vehicle seen
driving from an apartment complex renowned for criminal
activity. The court found that even though there was no evi-
dence the driver had committed any law violations, the stop-
ping officer was “not acting randomly in deciding that the only
car emerging from the apartment complex moments after he
heard shots from within it should be intercepted.”29
The court further observed, “It was a natural surmise that
whoever fired the shots had left the complex, and the street
that the defendant’s vehicle was driving on was . . . the
only street leading from it, and he was driving away from
rather than towards it . . . and, sure enough, there was no
other traffic.”30
The court balanced the dangerousness of the crime against
the intrusion on the occupants of the vehicle and explained the
vehicle stopped
was the only vehicle on the road at that late hour in this
high crime area, and it was pulled over and stopped for
only moments before the officers making the stop learned
that the SUV had been seen at the site of the shoot-
ing and that the occupants may have been involved in
the shooting.31
27
See, e.g., Brewer, supra note 6; Gipson, supra note 6; State v. Mitchell,
145 Wash. App. 1, 186 P.3d 1071 (2008); State v. Watkins, 207 Ariz.
562, 88 P.3d 1174 (Ariz. App. 2004). See, also, State v. Pierce, 173 Vt.
151, 787 A.2d 1284 (2001) (applying Brown factors pre-Lidster); In re
Muhammad F., 94 N.Y.2d 136, 722 N.E.2d 45, 700 N.Y.S.2d 77 (1999)
(same).
28
Brewer, supra note 6.
29
Id. at 679.
30
Id. at 678.
31
Id. at 679.
 - 40 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
This case presents a seizure that is less intrusive than a tra-
ditional arrest. Thus, the application of the Brown balancing
test is appropriate.
Gravity of Public Concern
Under the first prong of the test from Brown, a court should
consider the gravity of the public concern served by the sei-
zure. The public concern presented by the facts of this case
is the officers’ investigation of the York County burglary, as
well as their investigation of a distributor of large quantities
of methamphetamine.
The criminal investigation produced evidence that stolen
property was inside the target residence, including firearms,
jewelry, approximately $30,000 in cash, and gold coins.
The resident’s receipt of stolen property constitutes theft.32
The value of the stolen items in this case exceeded $5,000,
which constitutes a Class IIA felony.33 In addition, there is
the apparent concern that a semiautomatic pistol and shot-
guns were stolen and unaccounted for. In the context of
the investigation, these weapons could have been used in
connection with narcotics transactions, which presents safety
risks to police officers and the public. Further, the know-
ing receipt, retention, or possession of a stolen firearm is a
Class IIA felony.34
In the officers’ testimony, they articulated specific facts
which led them to believe that methamphetamine was
being sold from the residence. The officers learned from
the informant, whose reliability has not been called into
question,35 and whose information was only 5 days old at
the time, that between 6 and 10 ounces of methamphet-
amine were at the residence. The possession with the intent
32
See Neb. Rev. Stat. § 28-510 (Reissue 2016).
33
See Neb. Rev. Stat. § 28-518(1) (Reissue 2016).
34
See Neb. Rev. Stat. § 28-1212.03 (Reissue 2016).
35
See State v. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017).
- 41 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
to distribute this amount of methamphetamine constitutes a
Class IB felony.36
The fact that the truck was stopped so that police could ask
the motorist for information about a recent burglary and the
presence of stolen property and narcotics weighs against the
conclusion that the stop was constitutionally unreasonable.37
We conclude that the circumstances here involved ongoing
criminal activity which presented a grave public concern.
Degree to Which Seizure
A dvances Public Interest
As to the second factor of the Brown test, a court should
consider the degree to which the seizure advances the public
interest. Courts have recognized that motorist stops may sig-
nificantly advance the investigation of serious crimes in cases
where motorists are stopped soon after the crime and in the
vicinity where the crime occurred.38 The investigative value
of such a stop is significant, because the stopped motorists
“might well have been in the vicinity of the crime at the time
it occurred.”39
At the time, the officers were preparing to execute a search
warrant on the target residence. Vrbka and Winkler first identi-
fied the location of the house with assistance from the infor-
mant, who stated that the resident of the house was the owner
of the Volkswagen parked at the residence and that he had
witnessed the resident sell $3,000 worth of methamphetamine
5 days prior. He said that the resident had more to sell and that
officers could also find the gun safe in the living room hidden
under a blanket.
When the task force first identified the residence, the truck
was not present. A short time later, when Schilmoeller arrived
36
See Neb. Rev. Stat. § 28-416(1) and (10)(a) (Supp. 2015).
37
See State v. Gorneault, 918 A.2d 1207 (Me. 2007).
38
State v. LaPlante, 26 A.3d 337 (Me. 2011).
39
Lidster, supra note 7, 540 U.S. at 427.
- 42 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
on scene, he observed the unoccupied truck parked next to the
Volkswagen. Thereafter, the target address was under police
surveillance without interruption for 20 to 30 minutes until
Schilmoeller saw the truck leave. Given the highly specific
location of the truck, parked next to a small building sus-
pected of containing narcotics and stolen firearms, and parked
next to the suspect’s vehicle on an offstreet driveway, the
officers were reasonable to infer that Sievers had just been
inside the residence and had made contact with the resident
and that therefore, he could have information pertinent to
the investigation.
The officers’ testimony made clear they were faced with a
dynamic situation in which drugs or firearms could soon be
moved before the imminent acquisition and execution of a
search warrant. Shortly before the stop, Winkler set up sur-
veillance units in order to prevent the movement of stolen
property. The stop was made pursuant to the specific informa-
tion-seeking purpose of determining whether the lone vehicle
observed leaving the residence contained property sought in
the investigation.
Both the stop and ensuing investigation were diligently car-
ried out. The reasonableness of the stop is supported by the
presence of stolen firearms and other property; the use of the
stolen property to purchase methamphetamine; the large store
of methamphetamine at the target address, which to the offi-
cers’ knowledge had not yet been moved or destroyed; and the
short period in which the felonies were occurring. Society’s
legitimate interests required the seizure based on special law
enforcement concerns of specific, known, ongoing crimes, as
opposed to a general interest in crime control.
This conclusion is further supported by the U.S. Supreme
Court’s decision in Illinois v. McArthur,40 which found lawful
a temporary detention made near a house suspected of criminal
40
Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838
(2001).
- 43 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
activity while officers were seeking a search warrant for the
house. The Court found the temporary detention was tailored
to the need of ensuring against the destruction of evidence in
the house and was properly limited in time and scope. The
Court said that the warrantless seizure was not per se unrea-
sonable, because it involved a specially pressing or urgent
law enforcement need, and that because the law enforcement
concerns outweighed the individual privacy concerns, the stop
was lawful.41 The Court explained it had “upheld temporary
restraints where needed to preserve evidence until police
could obtain a warrant” and noted it had found no case in
which it had “held unlawful a temporary seizure that was sup-
ported by probable cause and was designed to prevent the loss
of evidence while the police diligently obtained a warrant in a
reasonable period of time.”42
Here, the information-seeking stop of Sievers was limited in
time and scope based on the task force’s “pre-warrant inves-
tigation” of the residence and tailored to the need to ensure
against the loss of stolen properly while police obtained a
search warrant for the residence.
Based on the circumstances here, we conclude the stop
advanced the public interest.
Severity of Interference
With Individual Liberty
As to the last factor, we recognize the stop of Sievers
restrained his liberty. Hubka activated his police cruiser’s
emergency lights to pull over Sievers while Sievers was oper-
ating his truck. Sievers’ stop was more likely to cause alarm
or anxiety than a roadblock, because upcoming roadblocks
are clearly visible and Sievers did not have advanced notice
that he would be stopped.43 We reiterate, however, this fact
41
Id.
42
Id., 531 U.S. at 334.
43
See LaPlante, supra note 38.
- 44 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
does not render the stop per se unreasonable. “The Fourth
Amendment does not treat a motorist’s car as his castle.”44
In Lidster, the Court found the stop of a vehicle along a pub-
lic road was no greater of an intrusion than an officer who
approaches a person on the street to question the individual.
The Court said the stop
[a]nd the resulting voluntary questioning of a motorist is
as likely to prove important for police investigation as
is the questioning of a pedestrian. Given these consider-
ations, it would seem anomalous were the law (1) ordinar-
ily to allow police freely to seek the voluntary coopera-
tion of pedestrians but (2) ordinarily to forbid police to
seek similar voluntary cooperation from motorists.45
The balance under Brown v. Texas is between the public
interest and an individual’s right to personal security free
from “‘arbitrary interference by law officers.’”46 The test is
grounded in the reasonableness of the official conduct and the
presence of limitations on official discretion. In this case, it
is undisputed that the officers had established probable cause
that felonies were occurring at the residence. Such determi-
nation was based on specific, objective facts provided by
the informant and police surveillance, “indicating that soci-
ety’s legitimate interests require[d] the seizure of the particu-
lar individual.”47
The “mission” of the stop was limited in scope. The
stop was focused on gathering information about the pres-
ence of drugs and specific stolen property, and as the stop
of the truck ensued, it almost immediately yielded further
evidence of criminal conduct. Hubka testified that as he
approached the truck, he observed Sievers’ making furtive
movements consistent with hiding evidence or reaching for a
44
Lidster, supra note 7, 540 U.S. at 424.
45
Id., 540 U.S. at 426.
46
Brown, supra note 17, 443 U.S. at 50.
47
See id., 443 U.S. at 51.
- 45 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
weapon. Deliberately furtive actions are a strong indication of
mens rea.48
As noted, the sole issue presented is the reasonableness of
the initial stop. The fact that the officers were “extra asser-
tive” when they contacted Sievers is not probative of the rea-
sonableness of the initial stop, because the stop of the vehicle
disclosed other reasons to escalate the detention of Sievers.49
There is no indication the officers did anything other than
pursue a plan tailored to seeking information of ongoing
crimes at the residence to be searched. The stop was a direct
effort to temporarily maintain the status quo so that evidence
of stolen property and narcotics at the target address could be
preserved while officers concluded the final steps to obtain and
execute a search warrant.
Balancing Brown Factors
In balancing the Brown factors, on our de novo review,
we find that Sievers was lawfully stopped. Officers sought to
temporarily stop and question the driver of the truck for the
purpose of investigating specific and known felonies, as well
as the presence of narcotics and firearms. The grave public
concern at issue heavily weighs in favor of the reasonableness
of the stop.
The stop of Sievers to see if he had any information about
the target residence or stolen property advanced the task
force’s investigation. Police knew Sievers’ truck had just
arrived at the target address and was parked in the driveway to
the outbuilding, behind a primary residence, next to a vehicle
owned by a suspected dealer of methamphetamine. After sur-
veilling the scene without interruption for 20 to 30 minutes,
the officers saw the truck moving from the residence. The
48
See Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917
(1968).
49
See U.S. v. Casares-Cardenas, 14 F.3d 1283 (8th Cir. 1994).
- 46 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE v. SIEVERS
Cite as 300 Neb. 26
officers were reasonable to conclude the driver of the truck
had information to provide.
Finally, although the stop was an intrusion upon Sievers’
liberty, the initial stop was not unnecessarily prolonged and
the interference is not enough to counterbalance the officers’
need to resolve grave and immediate threats to the public.
The critical mass of special law enforcement concerns pre-
sented in this case justifies the application of a rare exception
to the rule against suspicionless searches and seizures. We do
so only after ensuring that the officers’ conduct was narrow in
scope and that Sievers’ privacy interests were not subject to
arbitrary invasions at the unfettered discretion of officers in
the field.
Although our reasoning differs from that of the district
court, when all the factors are weighed, we conclude that the
stop was reasonable under Brown.50
CONCLUSION
Based on the foregoing reasons, we conclude the stop
of Sievers was lawful. The judgment of the district court
is affirmed.
A ffirmed.
Wright and Funke, JJ., not participating.
50
Brown, supra note 17.