Petition for Writ of Certiorari — Colton W. Sievers, Petitioner v. Nebraska

Supreme Court briefMar 7, 2019

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No. ______

In the

Supreme Court of the United States

_________________________

COLTON W. SIEVERS,

Petitioner,

STATE OF NEBRASKA,

Respondent.

_________________________

On Petition for a Writ of Certiorari

to the Supreme Court of Nebraska

_________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________

ORIN S. KERR

Counsel of Record

699 Exposition Boulevard

Los Angeles, CA 90089

(626) 657-0253

orin@orinkerr.com

JOSEPH D. NIGRO

LANCASTER COUNTY

PUBLIC DEFENDER

NATHAN J. SOHRIAKOFF

DEPUTY PUBLIC DEFENDER

633 S 9th St.

Lincoln, NE 68508

FRED A. ROWLEY, JR.

COLIN A. DEVINE

MAGGIE THOMPSON

MUNGER, TOLLES & OLSON

LLP

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

(213) 683-9100

Fred.Rowley@mto.com

QUESTION PRESENTED

Whether Illinois v. Lidster, 540 U.S. 419 (2004), allows

the police to stop a criminal suspect in the absence of

reasonable suspicion on the ground that the stop is

merely “information-seeking.”

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS

INVOLVED .......................................................... 1

STATEMENT OF THE CASE.................................... 1

REASONS FOR GRANTING THE WRIT ................. 7

Lower Courts Are Divided on Whether

Lidster Allows Police to Stop a Suspect

Without Reasonable Suspicion. ........................... 9

II. This Case Is an Ideal Vehicle to Resolve

the Lower Court Disagreement. ........................ 13

III. The Nebraska Supreme Court’s Decision

Ignored this Court’s Precedents and

Would Undercut a Core Constitutional

Protection. .......................................................... 15

IV. A Summary Reversal of the Nebraska

Supreme Court Is Warranted ............................ 17

CONCLUSION ......................................................... 18

APPENDICES:

APPENDIX A: May 18, 2018 – Decision

of the Nebraska Supreme Court ............................ 1a

iii

APPENDIX B: December 7, 2018 – Supplemental Decision of the Nebraska Supreme Court ......................................................... 26a

APPENDIX C: Trial Court Transcript

Excerpts ................................................................ 31a

APPENDIX D: September 22, 2016 – Order of the District Court of Lancaster

County, Nebraska ................................................. 70a

APPENDIX E: October 30, 2018 – Supplemental Brief of Appellee .................................. 74a

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Brown v. Texas,

443 U.S. 47 (1979) .......................................... 5, 6, 7

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) ...................................... 7, 10, 15

Delaware v. Prouse,

440 U.S. 648 (1979) .................................... 7, 15, 16

Grady v. North Carolina,

135 S. Ct. 1368 (2015) (per curiam) ..................... 17

Illinois v. Lidster,

540 U.S. 419 (2004) .......................................passim

Martinez v. Illinois,

572 U.S. 833 (2014) (per curiam) ......................... 17

Mills v. District of Columbia,

571 F.3d 1304 (D.C. Cir. 2009) ............................ 10

United States v. Brewer,

561 F.3d 676 (7th Cir. 2009) .................... 12, 13, 16

United States v. Hensley,

469 U.S. 221 (1985) ................................................ 8

Wearry v. Cain,

136 S. Ct. 1002 (2016) .......................................... 17

STATE CASES

Maine v. Whitney,

54 A.3d 1284 (Me. 2012) ................................. 10, 11

Nebraska v. Sievers,

911 N.W.2d 607, opinion modified on

rehearing, 920 N.W.2d 443 (Neb.

2018)........................................................................ 1

Singleton v. Kentucky,

364 S.W.3d 97 (Ky. 2012) ..................................... 11

STATUTES

28 U.S.C. § 1257(a) ...................................................... 1

Neb. Rev. Stat. § 28-416 .............................................. 4

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ...................................... 1, 9, 11

PETITION FOR A WRIT OF CERTIORARI

Petitioner Colton W. Sievers respectfully petitions

for a writ of certiorari to review the judgment of the

Nebraska Supreme Court.

OPINIONS BELOW

The opinion of the Nebraska Supreme Court (Pet.

App. 1a) is published at 911 N.W.2d 607, opinion modified on rehearing, 920 N.W.2d 443 (Neb. 2018). The

relevant order of the trial court is available at Pet.

App. 70a.

JURISDICTION

The judgment of the Nebraska Supreme Court was

entered on December 7, 2018. Pet. App. 26a. This

Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment of the United States Constitution provides: “The right of the people to be secure

in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

STATEMENT OF THE CASE

This case involves a stop of a suspect who was driving away from a residence under police surveillance.

The residence was under surveillance because a government informant told the police that he recently

stole a large gun safe in York, Nebraska, and brought

the safe to the residence. Pet. App. 3a-4a. According

to the informant, he and others had then cut the safe

open to find a pistol, several shotguns, jewelry,

$30,000 in cash, and gold coins. Ibid. The informant

explained to the officers that the woman who lived at

the residence was a methamphetamine dealer, and

that he and his accomplice in the burglary had traded

the contents of the safe for methamphetamine. Id. at

4a.

The informant directed the officers to the residence,

which was a single-story, garage-type outbuilding behind the main home on a lot in Lincoln, Nebraska.

Ibid. The informant told the officers that the black

Volkswagen Beetle parked in the back of the lot next

to the residence belonged to the methamphetamine

dealer. Ibid. Officers confirmed that the Volkswagen’s

license plate was registered to the target address, and

obtained a photograph of the suspected methamphetamine dealer, which matched the driver’s license photograph of the registered owner of the Volkswagen. Id.

at 5a.

Officers then set up a “pre-warrant investigation,”

with multiple surveillance units monitoring and observing activity there. Ibid. Narcotics officers in plain

clothes and unmarked cars were located near the residence, while uniformed gang officers sat in a marked

police cruiser two blocks away. Ibid. As part of the

surveillance, a deputy sheriff for the Lancaster County

Sheriff’s office drove an unmarked van through the alley behind the residence. Id. at 6a. He noticed a white

pickup truck parked next to the Volkswagen. Ibid.

Around 5:20 p.m., the deputy sheriff observed the

white pickup truck drive down the alley and pull onto

the street. Ibid. He contacted his supervisor and

asked how to proceed. The supervisor instructed the

officers to make a traffic stop of the truck and to

“search [the vehicle] for any items taken from the burglary in York County.” Ibid. Officers stopped the

truck within five blocks of the residence. Id. at 7a.

They did not observe any traffic violation or other legal

violation by the truck or its driver. Ibid.

The officers stopped the truck because it was suspected of carrying narcotics or contraband from the

theft in York. Id. at 6a, 51a, 61a. They testified that

the “sole reason for the stop was because his vehicle

was parked in the driveway of the house in question.”

Id. at 67a. Their supervisor testified that he “believed

[they] had sufficient probable cause to articulate a

need to both stop the vehicle and search it for any

items taken from the burglary.” Id. at 51a.

Petitioner Colton Sievers was the driver of the

truck. Id. at 7a. As the officers who stopped the vehicle approached the truck, they observed Sievers make

“furtive movements” toward the center console. Ibid.

Knowing that the residence they were investigating

was suspected of housing stolen guns, they approached

with caution and ordered Sievers to put his hands on

the steering wheel. Ibid. They removed him from the

car and searched the interior driver’s side of the truck.

The search revealed no drugs or stolen items. Ibid.

Additional officers arrived at the stop. Ibid. They

took over contact with Sievers and sat him in the back

of the police cruiser. Ibid. They informed Sievers that

he was being detained because of a stolen property and

narcotics investigation underway at the residence.

Ibid. In response to the officers’ questioning, Sievers

admitted to smoking marijuana at the residence. Id.

at 7a-8a. The officers asked for consent to search the

truck several times, but Sievers refused. Id. at 8a.

At the same time this was occurring, another group

of officers locked down the residence. Ibid. They

knocked and announced, and after 30 seconds observed movements inside. Ibid. They forced entry,

took the resident into custody, and observed drug paraphernalia in plain view. Ibid. They then radioed

their supervisor, who instructed officers to search

Sievers’ truck. Ibid. A search of Sievers’ truck revealed two small plastic bags containing 3.1 grams of

methamphetamine inside a soda can found near the

center console. Ibid.

Sievers was charged by information with possession

of a controlled substance. Id. at 9a. He moved to suppress the evidence obtained from the stop on the

grounds that the stop and the search were unlawful.

Ibid. The court held a hearing at which four officers

and Sievers testified. Ibid. After hearing the testimony, the court orally concluded that the officers had

reasonable suspicion to justify the stop, but asked the

parties for additional briefing regarding the search.

Two weeks later, the court issued an order denying the

motion to suppress on the grounds that both the stop

and the search were lawful. Id. at 10a.

The parties stipulated to a bench trial. Ibid. Sievers renewed his motion to suppress, which the court

denied. Ibid. The court found Sievers guilty of possession of a controlled substance under Neb. Rev. Stat. §

28-416, and sentenced him to 90 days in county jail

and one year of post-release supervision. Ibid. The

court allowed Sievers to defer his sentence and post

bond pending appeal on the condition of drug and alcohol testing during the pendency of the appeal.

Sievers appealed to the Nebraska Court of Appeals,

arguing that the court erred in denying his motion to

suppress because the officers lacked reasonable suspicion to justify the stop. The State urged affirmance

solely on the ground that the officers had reasonable

suspicion. By order of the Nebraska Supreme Court,

the case was moved from the Court of Appeals docket

to the Supreme Court docket.

The Nebraska Supreme Court affirmed Sievers’ conviction under a rationale neither party had briefed.

According to the court, stopping the truck was constitutional without reasonable suspicion because it was a

valid suspicionless information-seeking stop under Illinois v. Lidster, 540 U.S. 419 (2004). The court explained that seizures conducted “for the purpose of

seeking information” can be reasonable under Lidster

“even in the absence of reasonable articulable suspicion of criminal conduct.” Id. at 11a-12a. Such stops

could be reasonable in the absence of reasonable suspicion “to ask vehicle occupants, as members of the

public, for their help in providing information about a

crime in all likelihood committed by others.” Id. at 12a

(quoting Lidster, 540 U.S. at 423).

Because the stop of Sievers’ truck was merely an information-seeking stop, the court held, its constitutionality did not require reasonable suspicion. Id. at

17a. Instead, the constitutionality of the stop depended on the three-part balancing test from Brown v.

Texas, 443 U.S. 47 (1979), that was applied in Lidster.

Ibid. The balancing test required the court to consider

the gravity of public concern served by the seizure, the

degree to which the seizure advances the public interest, and the severity of the interference with the public

interest. See id. at 18a (citing Brown, 443 U.S. 47).

The court then applied the Brown factors and concluded that the stop was reasonable. See id. at 18a25a.

Sievers moved for rehearing. He argued that the

purpose of the stop was to investigate him for crimes

relating to narcotics and the burglary in York, and

that Lidster does not apply when the person being

stopped is a suspect, not merely a witness. In response, the court ordered the parties to submit simultaneous supplemental briefs. Sievers reiterated his

arguments.

In its supplemental brief, the State agreed with

Sievers that the stop could not be justified under Lidster as an information-seeking stop. “The stop was not

authorized as an information seeking stop,” the State

argued. Id. at 85a (emphasis omitted). “This stop

played out very differently from the stop contemplated

by the Lidster decision,” id. at 86a, because the “police

treated Sievers closer to a suspect than as a potential

witness to criminal activity,” id. at 88a. “This was a

classic traffic stop,” the State agreed, “not a situation

where police voluntarily sought the cooperation of a

potential witness who happened to be in an automobile.” Ibid.

The State’s supplemental brief then acknowledged

the profound problem with treating the stop of Sievers’

truck as an information-seeking stop:

Allowing police to stop a person who leaves a

suspected drug house under the justification of

an “information seeking” stop gives police too

much discretion and sets up the potential that

police can stop any person who leaves a location

the police have under surveillance.

Ibid. According to the State, the “proper analysis in

this case” was whether “traditional reasonable suspicion” existed. Id. at 85a.

Despite Sievers’ and the State’s positions, the Nebraska Supreme Court denied Sievers’ motion for rehearing. Id. at 26a-30a. The court made only minor

modifications to its original opinion that did not meaningfully change the court’s holding or analysis. Ibid.

According to the amended opinion, the stop of Sievers’

truck was reasonable based on the Brown factors because “the officers’ conduct was based on compelling

reasons, was part of a specific purposeful plan, was

narrow in scope, and was reasonable under the totality

of the circumstances, as well as the fact that Sievers’

privacy interests were not subject to an arbitrary invasion at the unfettered discretion of officers in the

field.” Id. at 30a.

REASONS FOR GRANTING THE WRIT

Reasonable suspicion is the bedrock constitutional

requirement for seizing a suspect to investigate suspected criminal activity. See, e.g., Delaware v. Prouse,

440 U.S. 648 (1979) (holding unconstitutional the stop

of an automobile for the purpose of checking the

driver’s license and registration because there was neither probable cause nor reasonable suspicion to believe

the vehicle or any of its occupants had violated any

law); City of Indianapolis v. Edmond, 531 U.S. 32, 44

(2000) (“We decline to suspend the usual requirement

of individualized suspicion where the police seek to

employ a checkpoint primarily for the ordinary enterprise of investigating crimes.”); United States v. Hensley, 469 U.S. 221, 229 (1985) (holding that police may

stop and briefly detain a driver who is the subject of a

wanted flyer if there is “reasonable suspicion,

grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony”).

In Lidster, 540 U.S. 419, the Court adopted an exception to the reasonable suspicion requirement for

“information-seeking” stops. The police in Lidster set

up a highway checkpoint to ask motorists for information regarding a fatal hit-and-run accident that had

occurred in the same location a week earlier. Id. at

422. The Court held that the usual reasonable suspicion requirement did not apply when the government

was “seeking information from the public,” a context in

which “the concept of individualized suspicion has little role to play.” Id. at 424. Because the stops were

“not to determine 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 likelihood committed by

others,” the ordinary rule requiring reasonable suspicion did not apply. Id. at 423 (emphasis in original).

Lidster reasoned that when the “police expect[] the

information elicited to help them apprehend, not the

vehicle’s

occupants,

but

other

individuals,”

individualized suspicion is not required because the

“stop is not the kind of event that involves suspicion,

or lack of suspicion, of the relevant individual.” Id. at

423–25. When questioning non-suspects, stops can be

reasonable without individualized suspicion because

such stops will be “likely brief” and “are less likely to

provoke anxiety or to prove intrusive.” Id. at 425.

“The police are not likely to ask questions designed to

elicit self-incriminating information” during such

stops, the Court noted, and “citizens will often react

positively when police simply ask for their help.” Ibid.

In that narrow circumstance, the stop can be justified

as reasonable even in the absence of reasonable

suspicion. Id. at 427.

This Court should grant the petition for certiorari

because lower courts are divided on the scope of stops

permitted by Lidster. The D.C. Circuit and the Supreme Courts of Kentucky and Maine have held, consistent with its plain language, that Lidster does not

permit information-seeking stops of suspects without

reasonable suspicion. In contrast, the Seventh Circuit

and the Nebraska Supreme Court below have extended Lidster to permit stops of suspects on the

ground that the stops are merely “information-seeking.”

The Court should grant the petition to resolve the

disagreement among the lower courts. In the alternative, the Court should grant the petition and summarily reverse the court below. Lidster means what it

says. The Lidster exception applies only to witnesses.

The reasonable suspicion requirement continues to

provide the bedrock Fourth Amendment standard for

stops of criminal suspects.

Lower Courts Are Divided on Whether

Lidster Allows Police to Stop a Suspect

Without Reasonable Suspicion.

Lower courts are divided on whether the police can

conduct information-seeking vehicle stops of suspects

under Lidster.

First, several lower courts have held that Lidster

does not justify a stop of a suspect without reasonable

suspicion. In Mills v. District of Columbia, 571 F.3d

1304 (D.C. Cir. 2009), citizens of the District of Columbia challenged a police checkpoint set up to deter and

prevent crime in a high-crime neighborhood. Id. at

1307. The government argued that the checkpoint was

constitutional under Lidster. Id. at 1310.

The D.C. Circuit disagreed, holding that the stop

had “nothing in common with the stop upheld in Lidster and everything in common with the unconstitutional stop in Edmond,” in which this Court held unconstitutional a city’s suspicionless stop at a drug interdiction checkpoint. Id. at 1311. While the police in

Lidster were seeking “the voluntary cooperation of

members of the public in the investigation of a crime,”

and “were not looking for suspects,” the police in Mills

were looking for “potential perpetrator[s]” of crimes

“without individualized suspicion.” Id. at 1311 (emphasis added) (citation omitted). By proscribing checkpoints such as those in Edmond, “the Court was concerned with placing a ‘check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose.’” Ibid. The application of Lidster to the Mills checkpoint would “turn[]

this paradigm on its head.” Ibid.

Several state courts have similarly held that Lidster

does not apply to suspicionless stops of potential suspects. In Maine v. Whitney, 54 A.3d 1284 (Me. 2012),

the Maine Supreme Court rejected the application of

Lidster to the stop of Whitney following a single-vehicle accident. The officer who stopped Whitney was engaged in a roving patrol 90 minutes after the accident

to locate the vehicle’s driver because the driver was

“involved in the criminal act of leaving the scene of an

accident.” Id. at 1285. The officer observed no illegal

activity before stopping Whitney, but stopped him to

“verify that he wasn’t involved in the crash.” Id. at

1286.

The Maine Supreme Court held that the officer’s

“random, suspicionless stop of Whitney in an attempt

to locate a criminal suspect is significantly distinguishable from a highway checkpoint stop aimed at

gathering information from the public.” Id. at 1288

(citing Lidster, 540 U.S. at 428). “Sanctioning the stop

here would grant law enforcement unfettered discretion to randomly stop any given motorist more than an

hour after a crime has been committed, in the absence

of any reasonable articulable suspicion of criminal conduct, on the chance that the vehicle’s occupants may

have had something to do with the crime.” Ibid. The

court concluded that “because Whitney was seized in

the absence of any reasonable articulable suspicion of

criminal conduct during a police officer’s roving patrol,

the seizure was unconstitutional.” Id. at 1290.

Similary, in Singleton v. Kentucky, 364 S.W.3d 97

(Ky. 2012), the Kentucky Supreme Court held that a

checkpoint set up to detect violations of a city ordinance was unconstitutional. The court explained that

“a checkpoint set up to stop vehicles without individualized indicia of suspicion on the random chance of

catching a law breaker is too great a breach in the wall

of protection provided by the Fourth Amendment.” Id.

at 104. Because the purpose was to enforce the law

against the vehicles stopped, the stops could not be justified under Lidster. Id. at 106.

In contrast, two courts have held that Lidster justifies the stop of a suspect without reasonable suspicion.

In United States v. Brewer, 561 F.3d 676 (7th Cir.

2009) (Posner, J.), the Seventh Circuit considered the

constitutionality of a stop of a vehicle leaving an apartment building soon after shots had been fired. The officer believed that the vehicle’s occupants “may have

been involved in the shooting.” Id. at 679. The stop

was constitutional regardless of whether there was

reasonable suspicion, the court reasoned, because “as

in Lidster, the police in this case had a compelling reason to ask questions of the driver or passenger of the

sole vehicle departing from a building complex in

which shots had been fired.” Ibid. “[T]he natural first

question to ask the driver was whether he had a gun,

since he might be the gunman rather than a witness.”

Ibid. Indeed, the fact that the individual stopped was

a potential suspect—not a witness—weighed in favor

of the reasonableness of the stop, the court reasoned,

because of the “need to stop potentially fleeing suspects until more information about the crime could be

obtained.” Ibid.

In so holding, Judge Posner acknowledged the stark

differences from the checkpoint stop in Lidster where

“the motorist can see that other vehicles are being

stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” Id. at 678–79 (citation omitted). Even so, the court held that the officer acted reasonably “in deciding that the only car emerging from

the apartment complex moments after he heard shots

from within it should be intercepted,” regardless of

whether there was individualized suspicion. Id. at

679.

The Nebraska Supreme Court’s decision below expressly adopted the Seventh Circuit’s reasoning in

Brewer. It explained that Brewer “found that even

though there was no evidence the driver had committed any law violations,” the stopping officer acted lawfully because he 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.” Pet. App. 27a (quoting Brewer,

561 F.3d at 679).

The lower courts are thus divided on whether Lidster permits a stop of a suspect without reasonable suspicion. In the decision below, Sievers’ status as a suspect helped make the stop reasonable in the absence of

reasonable suspicion because it suggested that the

stop might reveal evidence: “[I]t was reasonable for the

officer to infer the driver of the truck had information

about criminal activity in the target residence and that

the truck may contain evidence of criminal activity

and to direct the stop of the truck.” Id. at 29a. The

decision treated the same suspicion that other courts

have treated as grounds for information-seeking stops

as grounds for invoking the doctrine.

II.

This Case Is an Ideal Vehicle to Resolve

the Lower Court Disagreement.

This case is a perfect vehicle to resolve the split

among lower courts about whether Lidster permits the

stop of a suspect. Both the petitioner and the

respondent agree about the nature of the stop. The

police treated Sievers as a suspect, not a witness.

The State was admirably candid about these facts

in its supplemental brief before the Nebraska

Supreme Court. As the State conceded:

• “Sievers was not the witness to a recently reported

or recently discovered crime.”

• “[T]he circumstances of this stop do not support

that it was done to seek information.”

• “The evidence suggests that police treated Sievers

closer to a suspect than as a potential witness to

criminal activity.”

• “This was a classic traffic stop, not a situation

where police voluntarily sought the cooperation of

a potential witness who happened to be in an

automobile.”

Pet. App. 85a, 86a, 88a.

The State’s view is borne out by the officers’

testimony and actions. The officers testified during

the suppression hearing that they stopped the truck

because it was suspected of carrying narcotics or

contraband from the theft in York. Id. at 51a, 61a.

The officers pulled Sievers over with the intention of

searching his truck for evidence of a crime. Id. at 51a.

They approached the truck cautiously because they

believed the truck could be associated with the

residence, which was suspected of housing stolen guns.

Id. at 7a. They testified that they were “extra

assertive” and ordered Sievers to place his hands on

the steering wheel and to get out of the truck. Ibid.

They sat him in the back of a police cruiser and asked

him questions designed to elicit self-incriminating

information. Ibid. They also asked repeatedly to

search the truck, which they intended to do even

before they pulled Sievers over. Id. at 8a, 51a.

Because Sievers clearly was a suspect, and not

merely a potential witness, this case presents an ideal

opportunity to decide whether Lidster extends to suspects.

III. The Nebraska Supreme Court’s Decision

Ignored this Court’s Precedents and Would

Undercut a Core Constitutional

Protection.

The requirement of reasonable suspicion to stop a

criminal suspect is a core constitutional command.

The requirement limits government discretion to

reasonable searches and ensures that people are not

“subject to unfettered governmental intrusion.”

Prouse, 440 U.S. at 662–63. The decision below would

vitiate that requirement and replace it with an

amorphous general “reasonableness” requirement

subject to ready manipulation when a stop happens to

reveal evidence of a crime.

A leading example of the important role of the

reasonable suspicion requirement is Edmond, 531

U.S. at 41.

Edmond involved a suspicionless

checkpoint stop for the interdiction of illegal narcotics.

The Court held the stop unconstitutional because the

interdiction of illegal narcotics was ultimately

indistinguishable from the general interest in crime

control. “When law enforcement authorities pursue

primarily general crime control purposes at

checkpoints such as here,” the Court held, “stops can

only be justified by some quantum of individualized

suspicion.” Id. at 44, 47.

Lidster in no way changed the Edmond rule as

applied to stops “to determine whether a vehicle’s

occupants were committing a crime.” 540 U.S. at 423.

Instead, it only carved out a separate and narrow rule

when seeking the public’s “help in providing

information about a crime in all likelihood committed

by others.” Id. at 423. In this unique setting, Lidster

noted, “the concept of individualized suspicion has

little role to play.” Id. at 424. As in the case of “crowd

control or public safety, an information-seeking stop is

not the kind of event that involves suspicion, or lack of

suspicion, of the relevant individual.” Id. at 425.

As the State frankly acknowledged, extending the

category of “information-seeking stop” to permit the

stop of a suspect “gives police too much discretion and

sets up the potential that police can stop any person

who leaves a location the police have under

surveillance.” Pet. App. 88a. If law enforcement only

needs a “compelling reason to ask questions” to justify

a stop, Brewer, 561 F.3d at 679; Pet. App. 28a, then it

can stop anyone near a crime based on a mere hunch

that the person is a suspect. Whether that hunch was

reasonable would no longer matter.

There is no limit to this principle. After all, who

better to answer questions about crimes than those

who may have committed them? Criminals know

much more about their crimes than mere witnesses.

And if a stop of a suspect happens to yield important

evidence of the crime under investigation, the

successful stop is likely to seem “reasonable” viewed ex

post even if it was only a shot in the dark viewed ex

ante. That is precisely why investigative stops require

that an officer’s hunch be reasonable, and why the stop

authorized by the Nebraska Supreme Court portends

the kind of un-cabined “arbitrary invasion[]” of

personal security that this Court has steadfastly

rejected. Prouse, 440 U.S. at 654 (citation omitted).

IV. A Summary Reversal of the Nebraska

Supreme Court Is Warranted

This Court occasionally summarily reverses a lower

court decision that is plainly incorrect. See Wearry v.

Cain, 136 S. Ct. 1002, 1007 (2016) (per curiam)

(holding that the Court has “not shied away” from

summarily reversing cases when “lower courts have

egregiously misapplied settled law”); see also Grady v.

North Carolina, 135 S. Ct. 1368, 1370 (2015) (per

curiam) (summarily reversing state-court decision

that was “inconsistent with this Court’s precedents”);

Martinez v. Illinois, 572 U.S. 833, 843 (2014) (per

curiam) (summarily reversing state-court decision

that ran “directly counter to [the Court’s] precedents”).

This is such a case. On its face, Lidster is an

exception that solely deals with witnesses who are not

suspects. Lidster, 540 U.S. at 423 (“The stop’s primary

law enforcement purpose was not to determine

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 likelihood committed by others.”); id. at

428 (Stevens, J., concurring in part and dissenting in

part) (joining the majority’s opinion on the ground that

“[t]here is a valid and important distinction between

seizing a person to determine whether she has

committed a crime and seizing a person to ask whether

she has any information about an unknown person

who committed a crime a week earlier”). Extending

Lidster to permit stops of suspects is inconsistent with

Lidster itself.

Indeed, this is a rare case where even the respondent

has agreed that the reasoning of the decision below

cannot stand. In the supplemental briefing before the

Nebraska Supreme Court, the State agreed with the

petitioner that this was not an appropriate case in

which to apply Lidster. Pet. App. at 85a, 88a (arguing

that “[t]he stop was not authorized as an information

seeking stop” and arguing that the “traditional

reasonable suspicion framework” should apply

because “[t]he evidence suggests that police treated

Sievers closer to a suspect than as a potential witness

to criminal activity” (emphasis omitted)).

The Nebraska Supreme Court’s decision is so

plainly inconsistent with this Court’s reasoning in

Lidster that even the State does not try to defend it.

Under the circumstances, petitioner respectfully

contends, it would be appropriate to summarily

reverse the Nebraska Supreme Court.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted. Alternatively, the Court

should grant the petition and summarily reverse the

Nebraska Supreme Court.

Respectfully submitted,

ORIN S. KERR

Counsel of Record

699 Exposition Boulevard

Los Angeles, CA 90089

(626) 657-0253

orin@orinkerr.com

JOSEPH D. NIGRO

LANCASTER COUNTY

PUBLIC DEFENDER

NATHAN J. SOHRIAKOFF

DEPUTY PUBLIC DEFENDER

633 S 9th St.

Lincoln, NE 68508

March 7, 2019

FRED A. ROWLEY, JR.

COLIN A. DEVINE

MAGGIE THOMPSON

MUNGER, TOLLES & OLSON

LLP

350 S. Grand Ave., 50th Floor

Los Angeles, CA 90071

(213) 683-9100

Fred.Rowley@mto.com

APPENDIX

APPENDIX A

NEBRASKA SUPREME COURT

ADVANCE SHEETS

300 NEBRASKA REPORTS

STATE v. SIEVERS

Cite as 300 Neb. 26

————

No. S-17-518

————

STATE OF NEBRASKA,

Appellee,

COLTON W. SIEVERS,

Appellant.

————

___ N.W.2d ___

Filed May 18, 2018

————

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 historical 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 independently 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, checkpoint, 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 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 reasonable 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

ARTERBURN, 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 gathering 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’ constitutional

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 9-mm semiautomatic pistol, several

shotguns, jewelry, approximately $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 cooperate 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 supervisor with the LincolnLancaster 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

residential 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 resident 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 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”

surveillance 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 present.

Winkler advised the surveillance officers that they

were to help prevent evidence from leaving the target

address before the investigation was completed. The

officers exercised 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 driving an unmarked

van. Two Lincoln Police Department uniformed

“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 discussed 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 the scene in order to

present the warrant to a judge. Winkler continued to

monitor the radio and supervise the surveillance

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 officers 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 target 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 movements,” 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 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 stolen

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 target 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 anyone 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 destruction of evidence, at which point

they forced entry and took the resident into custody.

At that time, the officers observed several 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 approximately

1 1/2 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 residence; 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 disagreed, 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 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.

10a

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

reasonable suspicion existed to justify his stop and

detention.

STANDARD OF REVIEW

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 historical 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 independently of the

trial court’s determination.1

ANALYSIS

The issue presented is whether the suspicionless

stop of Sievers to gather information about stolen

State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).

11a

property and 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 probable cause search of the

truck nor Sievers’ arrest are at issue in this appeal.

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 criminal 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

State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

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).

State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889

(1968).

12a

conduct. 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 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

suspicion, 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-andrun 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 determine 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 likelihood 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

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).

Illinois v. Lidster, 540 U.S. 419, 424, 124 S. Ct. 885, 157 L.

Ed. 2d 843 (2004).

Id., 540 U.S. at 424-25.

Lidster, supra note 7.

Id., 540 U.S. at 426.

Id., 540 U.S. at 423 (emphasis in original).

13a

obtain more information 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 checkpoint

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 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

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.

Id., 540 U.S. at 422.

Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L.

Ed. 2d 333 (2000).

Lidster, supra note 7, 540 U.S. at 424.

Id., citing Michigan Dept. of State Police v. Sitz, 496 U.S.

444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990).

Id., 540 U.S. at 426.

Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357

(1979).

14a

The reasonableness of seizures that are less intrusive 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 considerations 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 unfettered 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 legitimate interests require the seizure of the

particular individual, or that the seizure must be

carried out pursuant 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 reasonable

expectation of privacy which is not subject to arbitrary

invasions solely at the unfettered discretion of police

officers in the field. We found the checkpoints at issue

Id., 443 U.S. at 50-51 (citations omitted).

Lidster, supra note 7.

State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986).

15a

were unconstitutional, because they were not administered pursuant to an official plan and the officers

were therefore free to subject motorists to arbitrary

invasion at their unfettered 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

intrusion, and the discretion of the officers. We found

the stop was reasonable, because the checkpoint

was intended to target alcohol 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

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 knockedover 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

Id.

Piper, supra note 2.

Sitz, supra note 15.

Piper, supra note 2.

Woldt, supra note 6.

16a

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 influence. In applying the

test from Brown, we determined the stop was reasonable because of the following: The circumstances

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

Since Lidster, courts have applied the special law

enforcement concerns rationale to non-checkpoint

stops and found such stops reasonable. 27 In U.S. v.

Id.

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).

17a

Brewer, 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 evidence the driver had committed any law violations, the

stopping 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 shooting and

that the occupants may have been involved in the

shooting.31

This case presents a seizure that is less intrusive

than a traditional arrest. Thus, the application of the

Brown balancing test is appropriate.

Brewer, supra note 6.

Id. at 679.

Id. at 678.

Id. at 679.

18a

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 seizure. 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 shotguns

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 knowing 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 methamphetamine were at the residence.

The possession with the intent to distribute this

See Neb. Rev. Stat. § 28-510 (Reissue 2016).

See Neb. Rev. Stat. § 28-518(1) (Reissue 2016).

See Neb. Rev. Stat. § 28-1212.03 (Reissue 2016).

See State v. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017).

19a

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

ADVANCES 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 significantly 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 identified the location of the house with

assistance from the informant, who stated that the

resident of the house was the owner of the Volkswagen

parked at the residence and that he had witnessed the

See Neb. Rev. Stat. § 28-416(1) and (10)(a) (Supp. 2015).

See State v. Gorneault, 918 A.2d 1207 (Me. 2007).

State v. LaPlante, 26 A.3d 337 (Me. 2011).

Lidster, supra note 7, 540 U.S. at 427.

20a

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 arrive 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 suspected 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 surveillance units in order to

prevent the movement of stolen property. The stop was

made pursuant to the specific information-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 carried 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

21a

officers’ 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 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 unreasonable, 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 supported 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 investigation” of the residence and

Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed.

2d 838 (2001).

Id., 531 U.S. at 334.

22a

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 operating 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 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 public 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 considerations,

it would seem anomalous were the law

(1) ordinarily to allow police freely to seek

the voluntary cooperation of pedestrians but

See LaPlante, supra note 38.

Lidster, supra note 7, 540 U.S. at 424.

23a

(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 determination was based on specific, objective facts provided

by the informant and police surveillance, “indicating

that society’s legitimate interests require[d] the

seizure of the particular individual.”47

The “mission” of the stop was limited in scope. The

stop was focused on gathering information about the

presence 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 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 assertive” when they contacted

Sievers is not probative of the reasonableness of the

Id., 540 U.S. at 426.

Brown, supra note 17, 443 U.S. at 50.

See id., 443 U.S. at 51.

See Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L.

Ed. 2d 917 (1968).

24a

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 surveilling the scene without interruption for 20 to 30

minutes, the officers saw the truck moving from the

residence. The 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

See U.S. v. Casares-Cardenas, 14 F.3d 1283 (8th Cir. 1994).

25a

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 presented 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.

AFFIRMED.

WRIGHT and FUNKE, JJ., not participating.

Brown, supra note 17.

26a

APPENDIX B

NEBRASKA SUPREME COURT

ADVANCE SHEETS

300 NEBRASKA REPORTS

STATE v. SIEVERS

Cite as 300 Neb. 806

————

No. S-17-518

————

STATE OF NEBRASKA,

Appellee,

COLTON W. SIEVERS,

Appellant.

————

___ N.W.2d ___

Filed December 7, 2018

————

SUPPLEMENTAL OPINION

Appeal from the District Court for Lancaster County:

ROBERT R. OTTE, Judge. Supplemental opinion:

Former opinion modified. Motion for rehearing

overruled.

Joseph D. Nigro, Lancaster County Public Defender,

and Nathan J. Sohriakoff for appellant.

Douglas J. Peterson, Attorney General, Erin E.

Tangeman, and, on brief, Joe Meyer for appellee.

27a

HEAVICAN, C.J., MILLER-LERMAN, CASSEL, and

STACY, JJ., and MOORE, Chief Judge, and

ARTERBURN, Judge, and DOYLE, District Judge.

PER CURIAM.

This case is before this court on the appellant’s

motion for rehearing concerning our opinion in State

v. Sievers.1 After reviewing the brief on rehearing, we

requested supplemental briefing from both parties,

which we have considered. We now overrule the

motion, but we modify the original opinion as follows:

(1) We withdraw the first sentence of the first

paragraph under the heading “ANALYSIS” 2 and

substitute the following: “The issue presented is

whether the stop of Sievers to prevent the truck from

leaving with any stolen items from the residence that

the truck had just left, a residence for which a search

warrant was being sought, violated Sievers’ Fourth

Amendment rights.”

The remainder of the original paragraph remains

unmodified.

(2) We withdraw the entirety of the paragraph

immediately preceding the subheading “GRAVITY OF

PUBLIC CONCERN”3 and substitute the following:

Here, even though there was no evidence that

Sievers committed any traffic violation before his stop,

the officer directing the stop was “not acting randomly

in deciding that the only” vehicle emerging from the

target residence should be stopped. 4 Instead, the

State v. Sievers, 300 Neb. 26, 911 N.W.2d 607 (2018).

Id. at 33-34, 911 N.W.2d at 613-14.

Id. at 40, 911 N.W.2d at 617.

See U.S. v. Brewer, 561 F.3d 676, 679 (7th Cir. 2009).

28a

officer decided to authorize the stop based on the fresh,

firsthand information he had of the presence of stolen

guns, money, and a large quantity of methamphetamine at the target residence, the near contemporaneous observation of the pickup at the residence after it

was identified by the informant, and the fact the

pickup was present there for only a short time. In this

complex of special law enforcement concerns, the

officer had compelling reasons to ask questions of the

driver of the sole vehicle departing from the target

residence and the facts relied upon to stop the truck

make the application of the Brown 5 balancing test

appropriate.

(3) We withdraw the entirety of the last two

paragraphs immediately preceding the heading

“CONCLUSION”6 and substitute the following:

Although our reasoning differs from that of the

district court, when all of the factors are weighed, we

conclude that the stop was reasonable under Brown.7

In reaching this conclusion, we find that the officer at

the hub of the collective intelligence gathered, taking

into account the totality of the circumstances, had

reasonable, objective bases for believing the truck had

evidence of criminal activity even though no law

violation was observed.

While Sievers conceded that the determination of

whether an officer has a constitutional basis to stop

and question an individual depends on the “totality

of the circumstances . . . determined on a case by

Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357

(1979).

Sievers, supra note 1, 300 Neb. at 46, 911 N.W.2d at 620-21.

Brown, supra note 5.

29a

case basis,” he contended there was no specific and

articulable facts sufficient to give rise to reasonable

suspicion that Sievers had committed or was committing a crime.

However, “[a]rticulating precisely what ‘reasonable

suspicion’ and ‘probable cause’ mean is not possible.

They are commonsense, nontechnical conceptions that

deal with ‘“the factual and practical considerations of

everyday life on which reasonable and prudent men,

not legal technicians, act.”’”9 “As such, the standards

are ‘not readily, or even usefully, reduced to a neat set

of legal rules.’”10 A particularized and objective basis

for stopping a vehicle, which is believed to be engaged

in or about to engage in criminal activity, is present

when “the known facts and circumstances are

sufficient to warrant a man of reasonable prudence in

the belief that contraband or evidence of a crime will

be found.”11

Under the totality of the circumstances and the individualized and specific knowledge of the criminal

activity afoot and its grave risk to public safety, it was

reasonable for the officer to infer the driver of the

truck had information about criminal activity in the

target residence and that the truck may contain

evidence of criminal activity and to direct the stop of

the truck.

Despite the unusual circumstances here, the totality

of these circumstances arising from the critical mass

Brief for appellant at 7.

Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657,

134 L. Ed. 2d 911 (1996) (quoting Illinois v. Gates, 462 U.S. 213,

103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

Id., 517 U.S. at 695-96.

Id., 517 U.S. at 696.

30a

of law enforcement concerns was sufficient to justify

this investigatory stop. We reach this conclusion only

after ensuring the officers’ conduct was based on

compelling reasons, was part of a specific purposeful

plan, was narrow in scope, and was reasonable under

the totality of the circumstances, as well as the fact

that Sievers’ privacy interests were not subject to an

arbitrary invasion at the unfettered discretion of

officers in the field.

The remainder of the opinion shall remain unmodified.

FORMER OPINION MODIFIED.

MOTION FOR REHEARING OVERRULED.

WRIGHT and FUNKE, JJ., not participating.

31a

APPENDIX C

IN THE DISTRICT COURT OF

LANCASTER COUNTY, NEBRASKA

————

Case No. CR16-703

————

STATE OF NEBRASKA,

vs.

Plaintiff,

COLTON SIEVERS,

Defendant.

————

VOLUME I OF I

PROCEEDINGS & EXHIBITS

(Pgs. 1-159, incl.)

(Nos. 1-6, incl.)

————

BILL OF EXCEPTIONS

Proceedings had before the

HONORABLE DARLA IDEUS,

on June 22, 2016, and

Before the HONORABLE ROBERT R. OTTE,

DISTRICT COURT JUDGE,

on September 22, 2016, November 17, 2016,

January 19, 2017, February 1, 2017,

March 9, 2017, March 16, 2017,

May 11, 2017, at Lincoln, Nebraska.

————

* * *

32a

A. It wasn’t me. I would guess one of the narcotics

investigators.

Q. Do you see Colton Sievers in the courtroom [17]

today?

Yes, ma’am, I do.

Q. Could you please explain for the Judge where

he’s seated and what he’s wearing?

A. He’s seated at the defense table. He’s wearing a

black T-shirt with red writing on the front.

MS. BOSN: Judge, I’d ask the record to reflect that

Officer Hubka has identified Mr. Sievers.

THE COURT: It will do so.

BY MS. BOSN:

Q. Did all the events you testified to occur in

Lancaster County, Nebraska?

Yes, ma’am, they did.

MS. BOSN: I don’t have any additional questions for

this witness.

THE COURT: Counsel?

MR. SOHRIAKOFF: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. SOHRIAKOFF:

Q. Is it Officer Hubka?

Yes, sir.

Q. Where were you positioned exactly when you

were  before you were asked to engage the defendant

or to stop the vehicle? Where exactly 

Where were we parked?

33a

[18] Q. Yeah.

A. I believe we were parked on 11th Street just

north of Hill Street.

Q. You indicated that you were informed that you

were there to assist in an investigation related to a

target house.

Yes, sir.

Q. You were aware that there was a search

warrant being sought to search the target house.

Yes, sir.

Q. You were aware that that search warrant had

not yet been signed by a judge.

A. I guess so. I was not kept up to date on the exact

phase of the search warrant, but I knew that they were

in the process of acquiring one.

Q. Your job was to stop any vehicles that left the

premises, if you were asked to.

A. That’s correct.

Q. Okay. Were you informed of what vehicles were

on the search warrant?

A. No, I was not.

Q. Did you ever look at the search warrant?

A. No, I did not.

Q. Okay. When you were asked to stop the vehicle

and question  this white pickup truck?

[19] Is that a yes? That was a bad question. You

were asked to stop a white pickup truck?

Yes, sir.

34a

Q. When you were asked to stop that white pickup

truck, you weren’t told why, were you?

A. I knew that it was due to the reasons associated

with the search warrant. I wasn’t told an exact specific

reason for that pickup truck.

Q. You were just told to stop the vehicle?

A. Well, I guess, because the relation that it had to

the target house, yes, sir.

Q. You weren’t told  did you observe that vehicle

in relation to the target house at any point in time?

A. I did not personally observe it at the target

house.

Q. You did not  you were not informed of any law

violations that that vehicle committed.

A. I was informed of the belief 

Q. Answer the question. Did you  were you told of

any law violations that that vehicle committed?

As far as traffic violations?

Q. Yes.

No, I was not informed of any violation.

Q. We can proceed under the assumption that all

[20] the police officers thought there was a vehicle,

namely, this white truck, connected to that house. And

I’m asking whether or not there was a specific law

violation. You indicated you did not know of any law

violation at that point in time associated with that

truck.

I did not know of any traffic violations.

35a

Q. Okay. You didn’t know of  you didn’t know that

that truck was specifically connected with any drug

violations.

I knew that it was suspected of.

Q. Because it was parked at a house where you

were seeking a warrant.

A. Where other investigators were seeking a

warrant, yes, sir.

Q. So you did not know of an actual law violations,

you did not observe a law violation, no officers had yet

observed an actual law violation with that truck,

correct?

I don’t know what other officers 

Q. No one informed you of an actual law violation

concerning that truck, correct?

A. Well, the reason 

Q. Is that correct or not?

A. I don’t understand the question you’re asking.

[21] Q. Had anyone told you that that truck broke

the law or that the driver of that truck broke the law?

They had suspected 

Q. Because he was associated with that house?

THE COURT REPORTER: Okay. You’re going to

have to wait until he finishes his answer.

THE WITNESS: Because what 

BY MR. SOHRIAKOFF:

Q. Because that truck was parked near that house,

that’s the only connection to any law violation, correct?

36a

A. Well, as far as I know, I guess that would be

correct.

Q. And I’m only asking what you know.

A. Okay.

Q. And what you were told. And you were not told

of any specific law violations involving that truck.

A. I was told of suspected law violations.

Q. Okay. So then you were told to stop the truck.

Yes, sir.

Q. When you stopped that truck, you did not

observe any traffic violations.

That is correct.

Q. Okay. And you did not  when you stopped that

truck you weren’t aware that that truck is not listed

[22] on the warrant, correct?

That is correct.

Q. Okay. When you approached the truck, at one

point in time you drew your weapon.

A. I don’t believe so.

Q. Okay. You said you were assertive in your

commands to the defendant.

A. I don’t believe that’s my exact phrase. I think I

was assertive in the contact.

Q. And what you meant by that is you demanded

that he exit the vehicle.

A. I don’t recall demanding that he exit the vehicle.

I recall making sure that I could see his hands and

that I knew he didn’t have a weapon in his hands.

Q. He then was ordered to exit the vehicle.

37a

I don’t recall ordering him to exit the vehicle.

Q. He was pulled out of the vehicle.

A. I don’t recall pulling him out of the vehicle, no.

Q. Were you the one who pulled him out of the

vehicle?

A. Not that I recall.

Q. Did you observe anyone else pull him out of the

[23] vehicle?

A. No, I did not.

Q. And you’re maintaining that your firearm was

not drawn?

Not that I recall, no.

Q. You are in a marked squad car.

Yes, sir.

Q. Okay. And it has lights.

Yes, sir, it does.

Q. It has a dash cam.

A. It does.

Q. Did you bring dash cam video to today’s

hearing?

A. No, I did not.

Q. There is no dash cam video for today’s hearing  or for that contact, is there?

A. Not that I know of.

Q. Typical procedure, when you stop, lights turn

on, dash cam video turns on; correct?

Yes, sir.

38a

* * *

BY MS. BOSN:

Q. Did all the events you testified to occur in

Lancaster County, Nebraska?

Yes.

MS. BOSN: I don’t have anything further.

THE COURT: Mr. Sohriakoff?

CROSS-EXAMINATION

BY MR. SOHRIAKOFF:

Q. Officer Jennings, when you began surveying 

or began waiting in your parked location, you were

aware that other officers and investigators were

seeking a warrant; is that correct?

[43] A. Yes.

Q. And you were aware that that warrant hadn’t

yet been signed?

A. Correct.

Q. Did you  you did not have an opportunity or

you do not actually  let me rephrase the question. You

did not actually review the warrant; is that correct?

A. Correct.

Q. You did not know that no white pickup truck

was listed on the warrant; is that correct?

A. Correct.

Q. You did not know if any vehicles were listed on

the warrant?

A. Correct.

39a

Q. Okay. You knew that you were looking for or

that they were looking for stolen guns, stolen coins,

and possibly narcotics?

A. Correct.

Q. When you were asked to stop or when your

vehicle was asked to stop the vehicle, you heard that

transaction over the radio, correct?

Yes.

Q. At no point in time did the  well, let me step

back just a second.

[44] The people who told you to execute the stop, or

told your vehicle to execute the stop, were they

investigators?

I believe so, yes.

Q. Okay. When the investigators told you to

execute the stop, did they say that they saw the

defendant with firearms?

No.

Q. Did they say they just saw the defendant with

coins?

No.

Q. Did they say they saw the defendant with

drugs?

No.

Q. Okay. Are you aware if the vehicle in question,

the white pickup truck, is usually parked in that

house?

I do not know.

Q. Okay. All you know is that you were told to

make a stop?

40a

Correct.

Q. Okay. You weren’t told of any specific law

violations at that time?

We were just told that it was involved in the

investigation that they were currently on.

Okay. And that’s all the information you have?

[45] A. Yes.

Q. Okay. You and Officer Hubka did not observe

the vehicle commit any law infractions, correct?

Correct.

You were just told to conduct a stop.

Yes.

Okay. You did conduct that stop.

Correct.

Q. When you exited the vehicle, there were 

there was an unmarked vehicle that was near your

vehicle; is that correct?

Yes.

That was a white van?

Yes.

Q. That white van had two plain clothes

investigators in it.

Correct.

They were dressed in standard tactical gear.

gear.

I guess I don’t recall if it was really tactical

Okay. When you  how were they dressed?

41a

A. Plain clothes and they might have had vests on

to carry their radio and other stuff they needed, items

they need.

Q. The investigate  sorry, I didn’t mean to [46]

interrupt you.

That’s fine.

The vest was over top of their clothes?

z believe so.

Q. And it would have had radio or any other

tactical gear, or whatever you call that stuff?

Sure. Law enforcement items.

We’ll call it law enforcement items.

So they had all the law enforcement items on their

vests.

Correct.

Who initiated contact with the defendant?

From what z recall, Officer Hubka would have

been one of the first ones to initiate contact with him.

Q. Where were the investigators when Officer

Hubka initiated contact?

I don’t remember.

Okay. Did Officer Hubka draw his weapon?

I don’t believe so.

Did you draw your weapon?

No.

Did any investigators draw their weapons?

Not that I know of.

42a

Q. There was a concern that the defendant might

[47] have been reaching for  or the occupant of the

vehicle might have been reaching for a weapon; is that

correct?

That’s correct.

Q. Would it have been  you say you don’t

remember whether weapons were drawn; is that

correct?

Right.

Q. Would it have been outside the realm of

possibility in that situation for your weapons to have

been drawn?

MS. BOSN:

speculation.

Judge, I’m going to object. It calls for

THE COURT: It does a bit. And I think it’s been

answered. BY MR. SOHRIAKOFF:

Q. Okay. So I’m going to ask, when you approach

a vehicle that you’re aware may contain weapons and

you see the individual reaching for a weapon  or for

something in the center console, is that a time you

typically draw your weapon?

A. I guess it would depend on  I mean, if we

actually see a weapon or not.

Q. Okay. As Officer Hubka, you, and the investigators converged on the vehicle, were any orders

made of Mr. Sievers?

[48] A. Not that z remember.

Q. Did the investigators  or did the officer,

Officer Hubka, order him to put his hands in the air?

A. I can’t say because z was on the other side of

the vehicle.

43a

Q. So you were on the back passenger’s side of the

vehicle?

Correct.

Q. Did Mr. Sievers  Mr. Sievers was then

ordered to exit the vehicle.

yes.

At some point he was asked to exit the vehicle,

Q. When you say asked, do you recall the words

that were used?

I don’t.

Okay. He was then handcuffed.

I don’t remember if he was handcuffed at that

time or not.

Q. And then he was placed in the back of your

squad car.

That’s correct.

Q. Okay. And at the point in time that he was

placed in the back of the squad car, had  did you  or

were you aware of whether the warrant had been

signed yet?

[49] A. I was not aware.

Q. Okay. About how much time passed before a

search was executed of his vehicle?

A. I  I can’t recall exactly how much time passed

between him being placed in our vehicle and the

search being conducted.

Q. Okay. Can you give us an idea from the time

that you began executing the stop to when the search

was conducted?

I’d say approximately 10 to 15 minutes.

44a

Q. Okay. The search was conducted on the side of

the road on 10th.

On 10th.

Q. On the  10th is a one-way street going

northbound.

Northbound.

Q. And it was conducted on the far left lane,

which would be the far west lane.

Correct.

The vehicle was eventually moved.

Yes.

Into the parking lot?

Yes.

Q. Was that before or after the search?

A. After.

[50] Q. Mr. Sievers was in the back of the squad car

the entire time.

on.

Correct.

And you can’t remember if he had handcuffs

I can’t.

Was he free to leave?

At that time, no.

Q. Okay. So the moment that you executed the

stop, he was not free to leave; is that correct?

Correct.

45a

Q. Okay. And this wasn’t a traffic stop in the

sense that there wasn’t a law violation that occurred.

A. In a sense that there wasn’t a traffic violation

that occurred, correct.

Right.

The purpose of the stop was to prevent the vehicle

in question from leaving with any of the stolen goods.

Correct.

Q. And the stop was executed prior to the warrant

being signed.

Correct.

Q. And you’re not aware of any other  let me be

very specific if I can.

Aside from the truck being located in the [51]

driveway of that house, you’re not aware of any other

law violations that were conducted by that truck 

committed by that truck.

No.

Q. Okay.

MR. SOHRIAKOFF: No further questions.

THE COURT: Anything further?

MS. BOSN: No.

THE COURT: All right. Officer, thank you for

coming today. You are excused.

MS. BOSN: Can I step out and get my next witness?

THE COURT: You may.

MS. BOSN: Judge, State would call Duane Winkler.

46a

THE COURT: Good morning. Please come forward

and raise your right hand.

Do you swear to tell the truth, the whole truth, and

nothing but the truth under penalties of perjury?

THE WITNESS: I do.

THE COURT: Have a seat there, sir.

Counsel?

MS. BOSN: Thank you, Your Honor.

[52] DUANE WINKLER,

having been called as a witness on behalf of plaintiff,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MS. BOSN:

Q. Sergeant, can you please state and spell your

first and last name for the record.

Duane Winkler. D-U-A-N-E W-I-N-K-L-E-R.

How are you employed?

A. I’m a supervisor with the Lincoln Lancaster

County Narcotics Task force from the Lincoln Police

Department.

Q. How long have you been employed by the

Lincoln Police Department altogether?

Since December of 2000.

Q. And how long have you been involved with the

narcotics unit in that capacity?

Since about March of 2014.

47a

Q. Were you on duty in that capacity as a

supervisor for the Lincoln Police Department

Narcotics Unit on February 26th of 2016?

Yes.

Q. And can you explain for the court what your

job duties entailed about that time?

Acting as a supervisor for the narcotics task

[53] force, directing investigators and so forth.

Q. Were you involved with an investigation into,

essentially, a York County burglary where property

was suspected to be located at an address here in

Lancaster County, Nebraska?

Yes.

Q. And are you aware of what that address is,

what that target location is?

If I recall correctly, it was 2612 South 9th.

Q. Who were the investigators that you were

directing as it related to that investigation?

The second shift members of the narcotics task

force, Investigator Schilmoeller, a couple other investigators.

Q. Mainly, Investigator Schilmoeller was involved as it relates to this case; is that correct?

That’s correct.

Q. And are you on scene at the South 9th Street

location?

No.

Q. Are you aware of whether or not Investigator

Schilmoeller is?

Yes.

48a

Q. And what was your understanding of why he

is at the 2612 South 9th Street location?

[54] A. The information we had received from York

County was that there would be stolen items and other

items sought from the burglary and arson at that

location. York County informed us that they believe

they had been  items had been transported there and

traded for methamphetamine or some other narcotics.

Once we had established what the address was, the

investigators were set up basically to observe and

perform surveillance on the address, hopefully to

prevent stolen items from leaving the address.

Q. Are you aware of what York County, at least

what the allegations of the stolen items, what they

were specifically?

A. It was items taken from a very large century

type safe to include firearms, some gold coins, some

U.S. currency, and some certificates, paperwork, so

forth.

Q. Did the fact that the alleged property that had

been stolen included firearms, did that heighten the

involvement of the narcotics unit in this case or would

it have mattered if it was just the gold coins?

The possible presence of firearms increased

our caution.

Q. Specifically, what were you doing as it related

to this investigation?

[55] A. I was assisting Lieutenant Vrbka of York

County in preparation of a search warrant affidavit.

MS. BOSN: Judge, may I approach the witness?

THE COURT: You may.

49a

(Exhibit No. 1 marked for identification.)

BY MS. BOSN:

Q. Sergeant Winkler, I’m handing you what’s

been marked as Exhibit No. 1. Do you recognize

Exhibit No. 1?

A. Yes, it appears to be the search warrant return

from the address.

Q. And there’s a number of pages with that

document; is that correct?

Yes.

So the top page you’ve referred to as a return?

Yes.

Q. Thumbing through that a little bit, does it also

include the actual search warrant that was applied for

and granted in this case?

Yes. It contains the receipt, the search warrant

affidavit, and the search warrant order itself.

Q. So it would be the entire search warrant [56]

packet; is that fair to say?

Yes.

Q. Is that a true and accurate copy to the best of

your recollection?

Yes.

MS. BOSN: Judge, I would offer Exhibit 1.

THE COURT: Any objection?

MR. SOHRIAKOFF: No objection.

THE COURT: One is received.

50a

(Exhibit No. 1 is hereby made a part of this bill of

exceptions and can be found at the conclusion of this

volume.)

BY MS. BOSN:

Q. And your testimony was that you were

working with a lieutenant out of York County in

preparation of this search warrant?

Yes.

Q. Tell me what else you were doing once that

preparation was concluded.

After the preparation was concluded, I was

monitoring the radio as well as transporting

Lieutenant Vrbka to a Lancaster County judge to have

the warrant signed.

And why are you monitoring the radio?

We wanted to be certain that no items had  no

[57] items that were sought from the burglary left the

residence prior to the search of the search warrant. I

was informed shortly after Lieutenant Vrbka and I

completed the affidavit that a vehicle had left the

residence.

Q. And did you receive that information based on

what you observed yourself or based on another officer

who was sitting pre-warrant surveillance on the

location?

Based off another officer.

Q. Okay. And those officers  what is pre-warrant

surveillance, can you explain that for the court?

A. Essentially, officers set up in a perimeter

around the targeted location to monitor for any

possible activities, any additional threats or dangers

51a

that might arise during the waiting period before

the affidavit is signed. And hopefully to contact any

individuals, perhaps, leaving with evidence.

Q. And the items in this case would have been

easily moved in a pickup truck; is that a fair

statement?

Yes.

Q. Do you recall who it was that first alerted you

to the white pickup leaving the address at 2612 South

[58] 9th Street?

fact?

I don’t recall who the first person was.

Okay. In any event, you became aware of that

Yes.

And tell me what you did next.

A. I directed them to contact the vehicle as I

believed we had sufficient probable cause to articulate

a need to both stop the vehicle and search it for any

items taken from the burglary in York County.

Q. What information had you been told as far as

where the vehicle was in relation to the house and

where it was going when you made that call?

A. I had been informed that the vehicle had been

parked immediately behind the residence. It was

supposably next to the vehicle identified as the

potential source for the traded methamphetamine as

well as the resident of the address.

Q. So there’s essentially two vehicles parked

behind the address at 2612 South 9th Street?

Correct.

52a

Q. And your testimony is that one of those

vehicles was registered to the person that lived at that

address?

[59] A. Correct.

Q. What kind of car is that, just so we’re not

getting confused here?

I believe it was a black Volkswagen.

So we have a black car and a white pickup?

Correct.

Q. And the information that you receive is the

white pickup is leaving the address?

That’s correct.

Q. And at that point in time, and it was your call,

somebody needs to stop that vehicle?

Yes.

Q. And you convey that information to an

investigator who is on the scene?

Correct.

Q. If an investigator is wearing plain clothes,

would it have been appropriate for them to have

actually stopped the vehicle?

A. If it was absolutely necessary in an emergency.

However, typically they prefer to contact a uniformed

patrol officer in a marked cruiser.

Q. Is that sort of the standard preference for the

Lincoln Police Department overall?

Yes.

53a

Q. Are you aware of whether or not the stop was

[60] done by the plain clothes investigators or marked

cruiser officers in uniform?

I was informed that the stop was performed by

Officer Jennings and Officer Hubka, who were at that

time in a marked unit and in full uniform of the police

department.

Q. At that point in time had the warrant been

signed?

No.

Q. Okay. Approximately what time is it, if you

recall?

It was still daylight. I would guess it was

perhaps around 5 p.m. or so.

Q. When Officers Hubka and Jennings stopped the

vehicle, is that radioed to you? Are you aware of that

stop?

A. Eventually.

Q. Okay. When you say eventually, you’re not

made aware immediately; is that fair to say?

No.

Q. Okay. How long, if you recall, between the

period of time that you’re made aware that Hubka and

Jennings have stopped the vehicle and when the

search warrant was signed by a judge?

A. It would have been some time, perhaps, an hour

[61] and a half.

Q. In the meantime, had other officers gone 

actually physically gone to the residence?

Yes.

54a

Q. Tell me why.

A. There was some concerns that the people in the

white pickup truck may have had an opportunity to

contact them by phone and potentially encourage

them to destroy evidence that might still be at the

residence.

Q. And is that based on information that you,

through Officers Hubka and Jennings, received about

the cell phone in the white pickup?

A. That’s pretty much standard procedure.

Q. Okay. When the officers that are at the target

location on south  2612 South 9th Street arrived, did

they make any observations before they enter the

home?

A. As I recall, they knocked and announced and

ordered any occupants to come to the door. After

approximately 30 seconds they observed the occupants

to be moving around in actions they believed were

destroying evidence, at which point they forced entry

and took them into custody.

Q. So the individual that was ultimately taken [62]

into custody did not come to the door to be taken into

custody?

A. Correct.

Q. Did you at any point in time go to where the

white pickup truck was stopped, to that location?

No.

Q. Tell me what, if any, involvement you had with

making the decision to search that vehicle.

A. I believe Investigator Schilmoeller contacted me

over the radio and asked how to proceed. At that point,

55a

considering that the vehicle had left the residence

prior to us being able to serve the search warrant, we

had sufficient probable cause developed to apply for a

search warrant to search that residence to look for

stolen item that were easily movable.

To me, this increased the likelihood that there might

be items of evidentiary value in the pickup. Plus the

information, and I think it was from Investigator

Schilmoeller, that the occupant of the pickup had

admitted to narcotics use or he believed there was

sufficient probable cause to search, directing him to go

ahead and search the vehicle.

Q. So your testimony is that the information that

you had at the time that was relevant as to why the

pickup could be searched was that the stolen property

[63] you believed was in the house and was the subject

of the warrant had been potentially or very likely put

into this pickup and driven away from the location?

That’s correct.

Q. You additionally had the driver of the white

pickup or information from Deputy Schilmoeller,

Investigator Schilmoeller, that driver of the white

pickup had acknowledged that he had left that

residence and prior to leaving that residence smoked

marijuana?

That’s correct.

Q. And your testimony previously was that the

stolen items at that location were potentially being

traded for methamphetamine?

That’s correct.

Q. So it’s not just the stolen items, but it’s also

narcotics that you’re concerned about at this point in

time?

56a

Yes.

Q. Anything else that you recall went into your

thought process as to why the search of the vehicle was

necessary at that time?

A. There was also the potential that there might

be firearms included in the vehicle which would have

presented an officer safety concern at that point.

[64] Q. Any other involvement that you had in this

investigation?

A. Not concerning the investigation of the pickup.

I continued to assist with the search warrant.

Q. But that’s back at the  there was never a

search warrant done for the pickup; is that correct?

That’s correct.

Q. So the search that you’re referring to was 2612

South 9th Street?

Correct.

Q. Anything else that you were involved with as

it relates to the investigation involved with the white

pickup and Colton Sievers’ involvement?

No, ma’am.

Q. Did all the events that you testified to occur in

Lancaster County, Nebraska?

Yes.

Q. Did you ever make contact with Colton

Sievers?

No.

MS. BOSN: Okay. I don’t have anything further for

this officer.

57a

THE COURT: Mr. Sohriakoff?

MR. SOHRIAKOFF: Thank you, Your Honor.

[65] CROSS-EXAMINATION

BY MR. SOHRIAKOFF:

Q. Your prior involvement with this case was

investigative; is that correct?

Supervisory, primarily. But, yes.

You drafted the affidavit for search warrant.

I assisted with the drafting of it.

Q. Okay. The search warrant was being  or

affidavit for search warrant was being drafted when

Colton Sievers’ pickup truck left the premises; is that

correct?

That’s correct.

Q. Okay. It had not even been placed in front of a

judge yet.

That’s correct.

Q. Okay. When the officers arrived on scene, the

pickup truck was there.

Yes.

They didn’t see Mr. Sievers arrive.

That’s correct.

Q. Okay. You didn’t ask for permission to search

in the search warrant, you didn’t ask for permission to

search either the VW or the pickup; is that correct?

I believe that’s correct.

[66] Q. And you were not granted permission to

search either the VW or pickup truck; is that correct?

58a

That’s correct.

Q. When you were drafting the warrant, you do

reference the pickup truck 

Yes.

 in the affidavit.

Yes.

Q. But you do not request permission to search

that pickup truck.

No.

Q. And you were also aware that the VW was

parked there; is that correct?

Yes.

Q. You were aware that there was a VW bug

style  not  I’m sorry.

You were aware that there was a motor home also

on the premises; is that correct?

I don’t specifically recall that.

Q. You were aware of an open camper style

vehicle located on the property; is that correct?

I believe I reference that during the affidavit.

Q. And you were granted permission to search the

open camper style on the property; is that correct?

[67] A. I don’t recall that.

MR. SOHRIAKOFF: May I approach, Your Honor?

THE COURT: You may.

BY MR. SOHRIAKOFF:

Q. You had an opportunity to review the search

warrant, right?

59a

Yes.

You helped draft the search warrant.

Yes.

Q. If you were shown the search warrant, that

would jog your memory about what was contained in

the search warrant; is that correct?

Yes.

Q. Okay. I would direct you to the third

paragraph on page 1 of the search warrant, starting

with the words therefore. Could you read that silently

to yourself and look up at me when you’re done?

Is your memory refreshed?

Yes.

Q. Do you now recall that a  you were granted

permission to search an open camper style vehicle on

the premises?

Yes.

[68] Q. Do you now recall that you were not  well,

you’ve already said you were not given permission to

search either the black VW or the white pickup truck;

is that correct?

That’s correct.

Q. You reference both vehicles in your request for

a search warrant.

Yes.

Q. But permission was not granted to search

either vehicle.

That’s correct.

60a

Q. Okay. When the stop was executed, it was

about 5 o’clock, 5:20, I think?

Somewhat  that sounds about correct, yes.

Q. Okay. How much time passed before you

granted permission for the officers on the scene to

search the pickup truck?

A. Between

permission?

the

stop

and

the

granting

Correct.

Not very long. I would say within about five to

ten minutes.

Q. Okay. And the warrant was still being drafted

that the point in time.

That’s correct.

Q. It hadn’t even been placed in front of the [69]

judge yet.

That’s correct.

Q. And the first information that you ever have

about this particular white pickup truck was when you

were told by the officers who were doing the prewarrant  what did you call it?

Pre-warrant surveillance.

So the first information you had about this

particular white pickup truck was when you were told

by the investigators who were doing pre-warrant

surveillance that it was parked in the driveway.

I believe that’s correct.

Q. That was the first knowledge you had of that

pickup truck.

61a

Yes.

Q. At no other time had you been told in relation

to this case that Colton Sievers might be implicated?

Prior to the stop of the pickup truck?

Right.

I believe that’s correct, yes.

Q. Okay. So in relation to this case, the first time

you became aware that my client, Mr. Sievers, and the

white pickup truck might be involved was because his

pickup truck was parked in the driveway of the [70]

house in question.

Yes.

Q. Okay. When  when the pickup truck left the

residence, you instructed the investigators to lock

down the house.

Yes.

Okay. And stop the pickup truck.

That’s correct.

Q. And the entire basis for the stop was that your

investigators and you suspected that it might have

contraband in it from the theft in York.

Correct.

Q. Did your investigators see Mr. Sievers leave

the house?

I don’t recall.

Q. Did  you don’t recall whether they communicate that to you?

That’s correct.

62a

Q. Okay. Do you recall if anybody communicated

to you whether they saw Mr. Sievers carrying

anything to the truck?

I don’t recall.

What kind of guns were stolen?

A. I don’t recall specifically. Some shotguns were

mentioned.

[71] Q.

Okay. Is it easy to conceal a shotgun on

your person without a bag?

It depends on the size of the shotgun.

Q. Okay. But there was no indication, to your

recollection, that anybody saw Mr. Sievers carrying

anything like that?

A. I don’t recall anyone saying anything about

Mr. Sievers carrying anything.

Q. Okay. Would be an important fact if someone

did see him carry something?

Yes.

Q. Okay. You weren’t at the scene of the stop so

you wouldn’t be able to say what procedures took place

at the stop; is that correct?

I was not at the stop, correct.

Okay. You executed a  not you.

You authorized a pre-warrant search of the exterior

of the house, the cartilage, I guess, if you want to call

it something; is that correct?

Yes.

Q. And that was because the vehicle left the

house?

63a

A. That was because we feared potential for

compromise after the vehicle had left the house.

Q. Okay. Did your officers indicate that Mr. [72]

Sievers, when he was stopped, attempted to contact

anybody on his cell phone?

No.

Q. Do you know if they saw him pick up his cell

phone?

A. I don’t know if they saw him pick up his cell

phone.

You were not told about that?

No.

Q. Okay. In any event, the search warrant wasn’t

even in front of the judge yet?

That’s correct.

MR. SOHRIAKOFF: No further questions.

THE COURT: Any follow-up?

MS. BOSN: No.

THE COURT: May this officer be excused?

MS. BOSN: Yes, please.

MR. SOHRIAKOFF: Judge, may I have just a

moment  the witness can go, but I need to e-mail

another court to let them know that I’ll be not making

it.

THE COURT: All right. Sir, you’re excused. Thank

you for coming.

MS. BOSN: While Mr. Sohriakoff is doing that, can

I get my next witness?

[73] THE COURT: You may.

64a

* * *

Q. And are you the officer who actually arrested

him, placed him in handcuffs?

I believe I did.

Q. Do you see Colton Sievers in the courtroom

today?

Yes.

I believe I already had you do that. I’m sorry.

Did all the events that you’ve testified to occur in

Lancaster County, Nebraska?

Yes.

MS. BOSN: Judge, I don’t have any [94] additional

questions for this witness.

THE COURT: Mr. Sohriakoff?

CROSS-EXAMINATION

BY MR. SOHRIAKOFF:

Q. How long had you been observing the house in

question before you saw the truck leave the house?

A. I don’t know for certain. I would say maybe 20

minutes, half hour.

Q. Okay. The truck was there when you arrived

there?

I believe so.

Q. Okay. You were not in a position to see him

exit the house and get into the truck?

I don’t remember him doing that, so, no. I

would say no.

65a

Q. So it’s possible he was in the truck for that

entire period of time?

A. He was not in the truck the entire time because

I did drive through the alley to verify which vehicles

were parked there and I would have been able to see

him inside that truck.

What if he was laying down?

I guess it’s possible.

Q. So you can’t say with certainty that he was in

the house, because you never saw him exit the house?

[95] A. Beside his statement saying that he had

been in there.

Q. I’m not asking about his statements, but at the

time you made the stop, you did not know whether he

had ever been in the house. You guessed based on the

fact the pickup truck was parked in the parking lot, or

in the driveway.

From my own knowledge, correct.

Q. Okay. And you started following the truck?

A. Correct.

Q. And you were in a white police van; is that

correct?

No, that’s not correct.

Q. Is it a police van?

A. It was a van, yes.

Q. Okay. When Investigator  or when Officers

Hubka  and the other officer, I’ve forgotten his name

at this moment, but when the two officers who made

the stop were approaching the vehicle, you said there

was a heightened sense of security?

66a

Yes.

Q. They were issuing commands at the defendant.

A. I believe so, yes.

Q. Okay. For instance, they commanded him to

keep his hands in view.

[96] A. Correct.

Q. And eventually commanded him to exit the

vehicle.

Yes.

Q. Okay. Do you recall whether or not their or

your guns were unholstered and out, not pointed at the

defendant, but out?

I don’t recall them being out. It’s possible, but

I don’t remember that.

You don’t remember either way?

Correct.

Q. Okay. When he was commanded to exit the

vehicle, do you recall whether he was handcuffed?

From my recollection, I don’t know  I don’t

think he was.

You don’t remember, though?

I don’t remember him being handcuffed.

Q. Okay. You asked for consent to search the

vehicle immediately, right?

A. Shortly thereafter being placed in the back

seat, yes.

Q. And you asked a couple more times before you

got the go-ahead with PC search, right?

67a

Yes, I did.

Q. And you were denied consent every time you

[97] asked.

Correct.

Q. Your supervisor didn’t grant you consent 

sorry.

Your supervisor didn’t grant you permission to

search the vehicle until after the residence had been

locked down and items were observed in plain view

that were illegal; is that correct?

Correct. It was happening at the same time.

Q. Okay. So the residence was being locked down,

items were observed, that was radioed to your

supervisor, your supervisor then radioed to you that

you could search; is that correct?

Correct.

Q. Okay. The defendant’s vehicle was not stopped

based on any traffic violations; is that correct?

Correct.

Q. The sole reason for the stop was because his

vehicle was parked in the driveway of the house in

question.

Correct.

Q. And the stop was executed before the warrant

was even in front of the judge.

I don’t know when the warrant was taken. I

wasn’t there.

[98] Q.

Fair enough.

You know when the warrant was executed, though?

68a

Roughly. I don’t know what time.

Q. The stop and search had been completed before

the warrant was executed; is that correct?

I believe so.

Q. Okay. You indicated that your conversation

with the defendant in the back of the cruiser took

approximately ten minutes.

If that. I don’t know for sure.

Could have been a little bit more?

Possibly. I don’t know.

Could have been less?

Correct.

But it was in that time frame?

Correct.

Q. And the defendant was not free to leave at any

point in time after the stop was made; is that correct?

Correct.

MR. SOHRIAKOFF: No further questions.

THE COURT: Ms. Bosn?

MS. BOSN: Nothing further.

THE COURT: All right. May this witness be

excused?

[99] MS. BOSN: Yes.

THE COURT: All right. Thank you, sir.

You’re excused.

Ms. Bosn?

MS. BOSN: Thank you, Your Honor.

69a

I would ask that the court make a finding that the

basis for the stop, that there was probable cause to

stop him and ultimately search the vehicle 

* * *

70a

APPENDIX D

IN THE DISTRICT COURT OF

LANCASTER COUNTY, NEBRASKA

————

Case CR16-703

————

STATE OF NEBRASKA,

Plaintiff,

COLTON SIEVERS,

Defendant.

————

ORDER

(Overruling Motion to Suppress)

THIS MATTER came before the court on September

22, 2016, upon the Defendant’s Motion to Suppress.

The State was represented by Carolyn Bosn and

the Defendant was present with and represented

by Nathan Sorhialcoff. Evidence was adduced. The

parties submitted their respective briefs on the issues.

The court, being fully advised, enters the following

findings and order.

1. Background, facts and issue.

The issue before the court in regard to the

Defendant’s Motion to Suppress is whether there was

reasonable suspicion for the original stop and, if there

was such a reasonable suspicion, whether the vehicle

at issue was subject to search.

In essence, the Lincoln Police and Sheriff Departments were conducting surveillance on a residence.

71a

They were investigating reports from York County

that guns, coins and money were illegally taken from

a private safe. These officers were assisting the York

County Sheriff in the investigation. As they were

conducting their surveillance, the Defendant left

the residence being watched. The surveilling officers

asked the narcotic unit officers to stop the Defendant.

The Defendant was stopped about five blocks from

the residence. The narcotics officers actually saw the

Defendant leave the residence, and according to the

testimony of the officers, they never lost sight of the

Defendant.

2. Analysis.

a. Stop.

An investigatory stop only requires specific and

articulable facts sufficient to give rise to a reasonable

suspicion that a person has committed or is committing a crime. State v. Bol, 288 Neb. 144, 846 N.W.2d

241 (2014). Reasonable suspicion is some minimal

level of objective justification for detention, something

more than an inchoate and umparticulariz ed hunch,

but less than the level of suspicion required for

probable cause. State v. Au, 285 Neb. 797, 829 N.W.2d

695 (2013).

The facts of this case distinguish it from a case like

State v. Ellington, 242 Neb. 554, 495 N.W.2d 915

(1993). In Ellington, the Nebraska Supreme Court

held an officer did not have reasonable suspicion to

stop a defendant, listing several factors that suggested

the activity did not amount to a reasonable suspicion

of drug-related activity warranting an investigatory

stop. In this case, there was an ongoing investigation

and the officers had reasonable cause to believe that

a crime had been committed and had reasonable

72a

suspicion to justify the stop even though the information was not complete or precise.

It is the Defendant’s position that there was no

reasonable suspicion for the stop. While taking that

position, the Defendant cites no authority that the

stop, under the circumstances, was improper. The

officers surveilling the house were conducting prewarrant surveillance with the understanding there

was a potential that the occupants were involved in

the York crime. The officers appeared credible in their

testimony, and articulated the specific facts upon

which the stop was completed. The officers had

reasonable suspicion to justify the stop given the

information known at the time.

b. Search.

The Defendant takes the position that the police had

no right to search the Defendant’s pickup without

a warrant after the Defendant had been detained.

The Defendant relies on the overarching principles

involving Fourth Amendment rights. In particular,

the Defendant cites generalized authority suggesting

the police must get a search warrant when there is no

risk that the automobile will leave the jurisdiction.

On the other hand, the Nebraska Supreme Court

has stated, “The automobile exception has no separate

exigency requirement and applies if the vehicle is

readily mobile and probable cause exists to believe it

contains contraband.” State v. Alarcon-Chavez, 284

Neb. 322 (2012) (citing Maryland v. Dyson, 527 U.S.

465 (1999)). In Alarcon-Chavez, because the vehicle

was operational, it was therefore readily mobile as it

could be moved out of the jurisdiction, had the agents

taken the time to obtain a warrant. “Searches of

automobiles are subject to less rigorous requirements

than searches of one’s home or office, but not only

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because of element of mobility, but also because

expectation of privacy with respect to one’s automobile

is significantly less than that relating to one’s home or

office.” State v. Konfrst, 251 Neb. 214 (1996). “Where

police officers have legitimately stopped an automobile

with probable cause to believe that contraband is

concealed within it, they may conduct a search of the

vehicle that is as thorough as a magistrate could

authorize in a warrant “particularly describing the

place to be searched.” U.S. v. Ross, 456 U.S. 798

(1982).

As a result, the court finds the search of the vehicle

proper and within Constitutional boundaries.

3. Conclusion.

For the foregoing reasons, the Defendant’s Motion to

Suppress should be and is hereby denied.

THE DEFENDANT IS ORDERED TO APPEAR IN

COURTROOM 34, 575 SO. 10th STREET, LINCOLN,

NE., FOR THE COURT’S NEXT DOCKET CALL SET

FOR November 17, 2016, AT 1:30PM.

SO ORDERED on the 2nd day of November, 2016.

BY THE COURT:

/s/ Robert R. Otte

ROBERT R. OTTE

DISTRICT JUDGE

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APPENDIX E

IN THE NEBRASKA SUPREME COURT

————

No. S-17-518

————

STATE OF NEBRASKA,

Appellee,

COLTON SIEVERS,

Appellant.

————

APPEAL FROM THE DISTRICT COURT OF

LANCASTER COUNTY, NEBRASKA

————

The Honorable Robert Otte, District Judge

————

SUPPLEMENTAL BRIEF OF APPELLEE

————

DOUGLAS J. PETERSON, #18146

Attorney General

Joe Meyer, #26151

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509-8920

Tel: (402) 471-2682

Joe.Meyer@nebraska.gov

Attorneys for Appellee

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Table of Contents

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

PROPOSITIONS OF LAW ..................................

STATEMENT OF FACTS ...................................

ARGUMENT ........................................................

1. Cases involving reasonable suspicion to

stop an automobile ....................................

2. Cases addressing permissible or impermissible activities of law enforcement

while waiting for the issuance of a search

warrant......................................................

3. Cases involving checkpoints .....................

4. Application to Sievers’ case ......................

CONCLUSION ....................................................

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Table of Authorities

CASES CITED:

Bailey v. United States,

568 U.S. 186 (2013) .......................... 1, 5, 6, 11, 12

Baxter v. State,

274 Ark. 539 (1982) ......................................

7, 9

City of Indianapolis v. Edmond,

531 U.S. 32 (2000) ........................................

Gipson v. State,

268 S.W.3d 185 (Tex. App. 2008) .................

7, 9

Illinois v. Lidster,

540 U.S. 419

(2004) ........................................ 1, 2, 4, 6, 9, 10, 11

Illinois v. McArthur,

531 U.S. 326 (2001) ...................................... 5, 11

Michigan v. Summers,

452 U.S. 692 (1981) ......................................

State v. Garrison,

911 So. 2d 346 (La. App. 2005) ....................

7, 9

State v. Woldt,

293 Neb. 265 (2016) ...................................... 7, 8, 9

U.S. v. Brewer,

561 F.3d 676 (7th Cir. 2009) ........................

7, 9

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Statement of the Case

A. Nature of the Case

Sievers appealed his conviction for Possession of

Controlled Substance, assigning error to the district

court’s denial of his Motion To Suppress. The ultimate

issue in the case is the justification of the traffic stop

of a pickup truck Sievers was driving.

After oral argument, this Court issued an opinion on

May 18, 2018, justifying the traffic stop as an “information seeking” stop in line with Illinois v. Lidster.

The Court did not conduct an analysis of reasonable

suspicion. Sievers filed a Motion For Rehearing and

this Court has ordered supplemental briefing.

Propositions of Law

The categorical authority to detain incident to

the execution of a search warrant must be

limited to the immediate vicinity of the

premises to be searched.

Bailey v. United States, 568 U.S. 186, 199

(2013).

II.

If officers elect to defer the detention until the

suspect or departing occupant leaves the

immediate vicinity, the lawfulness of detention is controlled by other standards, includeing, of course, a brief stop for questioning

based on reasonable suspicion or an arrest

based on probable cause.

Bailey v. United States, 568 U.S. 186, 202

(2013).

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III.

To determine the reasonableness of “information seeking” stops, courts use a threefactor analysis, balancing: (1) the gravity of

the public concerns served by the seizure, (2)

the degree to which the seizure advances the

public interest, and (3) the severity of the

interference with individual liberty.

Illinois v. Lidster, 540 U.S. 419, 426 (2004).

IV.

An officer is allowed to make an “information

seeking” stop whenever:

(i) The officer has reasonable cause to believe

that a misdemeanor or felony, involving danger

of forcible injury to persons or of appropriation of or danger to property, has just been

committed near the place where he finds such

person, and

(ii) the officer has reasonable cause to believe

that such person has knowledge of material

aid in the investigation of such crime, and

(iii) such action is reasonably necessary to

obtain or verify the identification of such

person, or to obtain an account of such crime.

Model Code of Pre-Arraignment Procedure §

110.2(1)(b) (1975).

Statement of Facts

The State incorporates its Statement of Facts from

its initial brief. See Brief of Appellee, pp. 2-4.

To summarize, York County authorities traced stolen

goods from a residential burglary in that county to

Lincoln. During the course of that investigation, they

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also developed probable cause that a woman was dealing methamphetamine out of a residence in Lincoln.

While York County authorities drafted an affidavit

requesting a search warrant, Lincoln police conducted

surveillance of the target residence. The purpose of the

surveillance was to prevent stolen goods from leaving

the premises. (54:9-10). During the surveillance, police

noticed people walking from the residence to an open

style camper located on the property with objects

apparently concealed in their hands. (Ex. 1). Some of

these people got into a pickup truck that left the scene.

(Ex. 1).

Lincoln police stopped the pickup, driven by Sievers,

about five blocks away from the target residence.

Sievers was the only person inside the pickup truck.

Police were “extra assertive” during the stop because

the pickup truck was believed to be connected to the

burglary where guns were stolen and because Sievers

made furtive movements when he was first pulled

over. (14:5). Sievers was almost immediately ordered

out of the truck and taken to the back of a patrol

cruiser. (82:22-83:5). An officer told Sievers that he

was “being detained due to an investigation that was

being done at the address that he had just left from.”

(83:3-5). The officer did not ask him specific questions

about the burglary or drug use inside the residence.

(84:17-85:1). After being told he was being detained,

Sievers told police the suspected drug dealer was still

in the residence and admitted to smoking marijuana

before he left the residence. (84:14-16).

Police eventually searched the pickup truck, uncovering methamphetamine.

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Argument

After Sievers filed a Motion For Rehearing, this

Court ordered supplemental briefing “addressing how

the confluence of the following lines of cases is relevant

under the facts of this case: 1) Cases involving reasonable suspicion to stop an automobile; 2) Cases

addressing permissible or impermissible activities of

law enforcement while waiting for the issuance of a

search warrant; and 3) Cases involving checkpoints.”

The State will address each line of cases in turn.

1. Cases involving reasonable suspicion to stop an

automobile.

The State incorporates its reasonable suspicion

analysis from its original brief. See Brief of Appellee,

pp. 4-9.

2. Cases addressing permissible or impermissible

activities of law enforcement while waiting for

the issuance of a search warrant

Police, while waiting for the issuance of a search

warrant, are authorized to impound the premises to be

searched and, by implication, can seize persons who

are on the scene of a premises to be searched, at least

to the extend they can prevent persons from entering

the premises without a police escort.

Temporary restraints to preserve evidence

In Illinois v. McArthur, 531 U.S. 326 (2001), Terra

McArthur asked two police officers to accompany her

to the trailer where she lived with her husband,

Charles, so that they could keep the peace while she

removed her belongings. The officers remained outside

while Tera went inside, but Tera came outside and told

the officers to check the trailer because “Chuck had

dope in there.” Tera added that she had seen Chuck

81a

“slide some dope underneath the couch.” The police

knocked on the door, told Charles what Tera had said,

and asked for permission to search. Chuck denied

permission and police began the process of obtaining a

search warrant. Police told Charles, who was on the

porch at this time, that he could not reenter the trailer

unless a police officer accompanied him. Police obtained

a search warrant within two hours and searched the

trailer, finding marijuana. Id. at 328-29.

The McArthur Court held that the seizure of Chuck

was reasonable, because (1) police had probable cause

to believe that the trailer contained evidence of crime

and contraband, (2) the police had reason to fear that,

unless restrained, Chuck would destroy the drugs

before they could return with a warrant, (3) the police

made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy, and

(4) the police imposed the restraint for a limited period

of time. Id. at 332. In its analysis, the Court highlighted previous decisions that assumed that police,

armed with reliable information that the apartment

contained drugs, might lawfully have sealed the

apartment from the outside, restricting entry into the

apartment while waiting for a warrant. Id. at 333.

Seizure of former occupants of a place to be searched

In Bailey v. United States, 568 U.S. 186 (2013), the

Supreme Court examined the underlying rule allowing

police to seize occupants of a place to be searched

announced in Michigan v. Summers, 452 U.S. 692

(1981), and whether it extended to allow police to seize

persons who had left the place to be searched before

the search occurred.

The Summers Court recognized three law enforcement interests that, taken together, justify the detention

82a

of an occupant who is on the premises during the

execution of a search warrant: (1) officer safety,

(2) facilitating the completion of the search, and

(3) preventing flight. The Bailey Court held that:

In sum, of the three law enforcement

interests identified to justify the detention in

Summers, none applies with the same or

similar force to the detention of recent occupants beyond the immediate vicinity of the

premises to be searched. Any of the individual

interests is also insufficient, on its own, to

justify an expansion of the rule in Summers

to permit the detention of a former occupant,

wherever he may be found away from the

scene of the search. This would give officers

too much discretion.

568 U.S. at 199. Therefore, the Bailey Court held,

“[t]he categorical authority to detain incident to the

execution of a search warrant must be limited to the

immediate vicinity of the premises to be searched.” Id.

Because police do not have authority to detain a

person outside the immediate vicinity of the premises

to be searched when they have a warrant, there is no

reason to believe police would have authority to make

such a detention before they obtain a warrant.

3. Cases involving checkpoints

The seminal case from the United States Supreme

Court regarding checkpoints, or “information seeking”

stops, is Illinois v. Lidster, 540 U.S. 419 (2004). In

Lidster, police set up a checkpoint to stop cars and ask

occupants about a fatal hit and run that had occurred

in the area a week prior. The Court cited to a previous

checkpoint case where the police had set up a checkpoint primarily for general “crime control purposes.”

83a

The Lidster Court found the facts of the case at bar

distinguishable, stating:

The checkpoint stop here differs significantly

from that in Edmond. The stop’s primary law

enforcement purpose was not to determine

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

likelihood committed by others. The police

expected the information elicited to help them

apprehend, not the vehicle’s occupants, but

other individuals.

Id. at 423. The Court analogized the police stopping

vehicles at an information seeking checkpoint to police’s

ability to approach a pedestrian and ask questions,

stating “it would seem anomalous were the law

(1) ordinarily to allow police freely to seek the voluntary cooperation of pedestrians but (2) ordinarily to

forbid police to seek similar voluntary cooperation

from motorists” Id. at 426.

To determine the reasonableness of “information

seeking” stops, the Court used a three-factor analysis

from an earlier case, balancing: (1) the gravity of the

public concerns served by the seizure, (2) the degree to

which the seizure advances the public interest, and (3)

the severity of the interference with individual liberty.

Id. at 427.

Other courts have taken the “information seeking”

stop outside of the context of checkpoints, applying it

to situations where police stop potential witnesses of

recently committed crime. See U.S. v. Brewer, 561 F.3d

676 (7th Cir. 2009), Gipson v. State, 268 S.W.3d 185

84a

(Tex. App. 2008), State v. Garrison, 911 So. 2d 346 (La.

App. 2005), Baxter v. State, 274 Ark. 539 (1982).

In fact, this Court recently approved of an information seeking stop of a potential witness in State v.

Woldt, 293 Neb. 265 (2016). In Woldt, police responded

to a report of a white pickup truck knocking down

multiple traffic cones on the main street in Wisner.

The officer stopped to pick up the cones and, while

doing so, heard squealing tires nearby. The officer

returned to his cruiser and began looking for the

pickup. The officer found the white pickup nearby,

recognized the driver, and motioned for the driver to

pull over. Woldt was driving another pickup and

pulled over behind the white pickup. While the officer

was conducting a DUI investigation of the driver of the

white pickup, Woldt reversed his pickup as if to drive

away. The officer motioned for Woldt to stop and come

over toward the officer. Woldt was later arrested for

driving under the influence and challenged the stop

under the Fourth Amendment. Id. at 266-69.

This Court, utilizing the three-factor balancing test,

upheld the stop. Specifically, this Court found that the

gravity of public concern involved drunken driving, a

“serious threat to public safety,” that stopping Woldt

advanced that interest because Woldt was apparently

driving with the pickup driver who was allegedly

drunk, and the severity of the interference was not

great. Id. at 272-76. In particular, under the third

factor addressing the severity of the interference with

individual liberty, the Court stated “[t]his was not a

question of [the officer] sounding his patrol car’s siren

and activating its lights to pull over Woldt while Woldt

was operating his vehicle. Rather, this was [the officer]

waving, and possibly verbally requesting, that Woldt

stay where he was so that [the officer] could ask him

85a

questions relating to [the other driver]’s activities.” Id.

at 275.

4. Application to Sievers’ case.

The proper analysis in this case is under the traditional reasonable suspicion framework because the

other two lines of precedent do not apply.

The stop was not authorized

as an information seeking stop

Sievers was not the witness to a recently reported or

recently discovered crime. For guidance to determine

when police can make an “information seeking” stop,

the State looks to the American Law Institute’s Model

Code of Pre-Arraignment Procedure, which proposes that

an officer be allowed to make such a stop whenever:

(i) The officer has reasonable cause to believe

that a misdemeanor or felony, involving danger

of forcible injury to persons or of appropriation of or danger to property, has just been

committed near the place where he finds such

person, and

(ii) the officer has reasonable cause to believe

that such person has knowledge of material

aid in the investigation of such crime, and

(iii) such action is reasonably necessary to

obtain or verify the identification of such

person, or to obtain an account of such crime.

Model Code of Pre-Arraignment Procedure § 110.2(1)(b)

(1975). This proposal is in line with cases like Brewer,

Gipson, Garrison, Baxter, and Woldt, where there was

a report of a crime that had just been committed or

officers were reacting to suspicious behavior they had

witnessed themselves.

86a

There was no report or discovery of a just completed

crime in this case. This case involved pre-warrant

surveillance resulting from a police investigation that

had been progressing for days.

Furthermore, the circumstances of this stop do not

support that it was done to seek information. Because

“information seeking” stops are inherently done without probable cause nor reasonable suspicion, it is

relevant to look at the subjective intentions of the

officers and the circumstances of the stop. See City of

Indianapolis v. Edmond, 531 U.S. 32, 45–46 (2000)

(while “[s]ubjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis, programmatic purposes may be relevant to the validity of

Fourth Amendment intrusions undertaken ... without

individualized suspicion.”). It is doubtful the Supreme

Court thought to authorize a stop like the one in this

case when it decided Lidster. As its reasoning for upholding information seeking stops, the Lidster Court stated:

Information-seeking highway stops are less

likely to provoke anxiety or to prove intrusive.

The stops are likely brief. The police are not

likely to ask questions designed to elicit selfincriminating information. And citizens will

often react positively when police simply ask

for their help as ‘responsible citizen[s]’ to ‘give

whatever information they may have to aid in

law enforcement.’

540 U.S. at 425.

This stop played out very differently from the stop

contemplated by the Lidster decision. Sievers was

pulled over by a marked patrol car using its emergency

lights; he could not anticipate arrival at a checkpoint

stop. Furthermore, Sievers was asked questions that

87a

prompted him to incriminate himself (that he had

recently smoked marijuana). (84:12-16). And this stop

cannot be described as brief, especially considering the

intent of the stop was to prevent Sievers from leaving

the target residence with stolen property. (54:7-10).

Furthermore, police testified that they were “extra

assertive” during the stop because the pickup truck

was believed to be connected to the burglary where

guns were stolen and because Sievers made furtive

movements when he was first pulled over. (14:5).

Sievers was almost immediately ordered out of the

truck and taken to the back of a patrol cruiser. (82:2283:5). An officer told Sievers that he was “being

detained due to an investigation that was being done

at the address that he had just left from.” (Id.).

Furthermore, the officer “didn’t ask him specific

questions as it relates” to the burglary or drug use

inside the residence. (84:17-85:1).

In a separate opinion in the Lidster case, Justice

Stevens wrote “[t]here is a valid and important distinction between seizing a person to determine whether

she has committed a crime and seizing a person to ask

whether she has any information about an unknown

person who committed a crime a week earlier.”

540 U.S. at 428. Even if police had not stopped Sievers

to determine if he was committing the crime of

possession of stolen property or methamphetamine,

they certainly were not stopping him to see if he had

any information about an unknown person who committed a crime. The suspect in this case was known to

police by name. In fact, police were in the process of

obtaining a search warrant to search the place Sievers

had left. While the search warrant affidavit mentions

the traffic stop of Sievers, no information Sievers

provided is included in the search warrant affidavit.

88a

(Ex. 1). The search clearly was set to occur regardless

of what Sievers told the police.

The evidence suggests that police treated Sievers

closer to a suspect than as a potential witness to

criminal activity. Also, the actions of police tend to

negate that Sievers’ cooperation was “voluntary,”

which is how the Supreme Court characterized the

questioning in Lidster. 540 U.S. at 426. Sievers was

stopped by a marked patrol car using emergency lights

and immediately ordered out of his vehicle and told

that he was being “detained.” This was a classic traffic

stop, not a situation where police voluntarily sought

the cooperation of a potential witness who happened

to be in an automobile.

Allowing police to stop a person who leaves a

suspected drug house under the justification of an

“information seeking” stop gives police too much

discretion and sets up the potential that police can

stop any person who leaves a location the police have

under surveillance.

The stop was not authorized to prevent

the destruction of evidence

Sievers was not seized in the immediate vicinity of

the place to be searched, therefore his seizure cannot

be supported by Illinois v. McArthur. As the Bailey

Court stated, “If officers elect to defer the detention

until the suspect or departing occupant leaves the

immediate vicinity, the lawfulness of detention is

controlled by other standards, including, of course, a

brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable

cause.” 568 U.S. at 202.

89a

Conclusion

For the reasons noted above, the appellee submits

that the proper analysis for this case is that of reasonable suspicion.

Therefore, the State stands upon its original argument that the stop was supported by reasonable

suspicion, particularly because the search warrant

affidavit evinces that police saw Sievers walking from

the target residence to a camper on the property appearing to conceal items in his hands before he got into the

pickup truck and drove away. (Ex. 1). Police had reasonable suspicion to believe Sievers was involved in

drug activity and the stop was proper for that reason.

STATE OF NEBRASKA, Appellee,

BY DOUGLAS J. PETERSON, #18146

Attorney General

BY s/Joe Meyer

Bar Number: 26151

Assistant Attorney General

2115 State Capitol

Lincoln, NE 68509-8920

Tel: (402) 471-2682

Attorneys for Appellee

90a

Certificate of Service

I hereby certify that on Tuesday, October 30, 2018

I provided a true and correct copy of this Supplemental

Brief of Appellee State to the following:

Colton W. Sievers represented by Joseph D Nigro

(17378) service method: Electronic Service to

jnigro@lancaster.ne.gov

Colton W. Sievers represented by Nathan Josiah

Sohriakoff (24275) service method: Electronic Service

to nsohriakoff@lancaster.ne.gov

Signature: /s/ Joe Meyer (26151)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.