State v. Sievers - supplemental opinion , 301 Neb. 806 ( 2018 )

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01/18/2019 01:08 AM CST
- 806 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SIEVERS
Cite as 301 Neb. 806State of Nebraska, appellee, v.
Colton W. Sievers, appellant.
___ N.W.2d ___
Filed December 7, 2018. No. S-17-518.
supplemental opinion
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Supplemental opinion: Former opinion modi-
fied. 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.
Heavican, C.J., Miller‑Lerman, Cassel, and Stacy, JJ.,
and Moore, Chief Judge, and A rterburn, 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
State v. Sievers, 300 Neb. 26, 911 N.W.2d 607 (2018).
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SIEVERS
Cite as 301 Neb. 806(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 war-
rant 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 officer decided to autho-
rize 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 resi-
dence and the facts relied upon to stop the truck make the
application of the Brown5 balancing test appropriate.
(3) We withdraw the entirety of the last two paragraphs
immediately preceding the heading “CONCLUSION”6 and
substitute the following:
2
Id. at 33‑34, 911 N.W.2d at 613‑14.
3
Id. at 40, 911 N.W.2d at 617.
4
See U.S. v. Brewer, 561 F.3d 676, 679 (7th Cir. 2009).
5
Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).
6
Sievers, supra note 1, 300 Neb. at 46, 911 N.W.2d at 620‑21.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SIEVERS
Cite as 301 Neb. 806Although 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 case basis,”8
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
7
Brown, supra note 5.
8
Brief for appellant at 7.
9
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)).
10
Id., 517 U.S. at 695‑96.
11
Id., 517 U.S. at 696.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SIEVERS
Cite as 301 Neb. 806Under the totality of the circumstances and the indi-
vidualized 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 infor-
mation 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 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 nar-
row 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.