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State v. Rogers

Supreme Court of Nebraska

July 21, 2017

State of Nebraska, appellee,
Latriesha L. Rogers, appellant.

         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 protection is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error. When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from trial and from the hearings on the motion to suppress.

         3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures.

         5. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must be excluded.

         6. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Arrests. The Nebraska Supreme Court has described three tiers of police-citizen encounters. A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through non-coercive questioning and does not involve any restraint of liberty of the citizen. Because tier-one encounters do not rise to the level of a seizure, they are outside the realm of Fourth Amendment protection. A tier-two [297 Neb. 266] police-citizen encounter involves a brief, nonintrusive detention during a frisk for weapons or preliminary questioning. A tier-three police-citizen encounter constitutes an arrest, which involves a highly intrusive or lengthy search or detention. Tier-two and tier-three police-citizen encounters are seizures sufficient to invoke the protections of the Fourth Amendment to the U.S. Constitution.

         7. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.

         8. Police Officers and Sheriffs: Search and Seizure. In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen's person, or the use of language or tone of voice indicating the compliance with the officer's request might be compelled.

         9. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. An officer's merely questioning an individual in a public place, such as asking for identification, is not a seizure subject to Fourth Amendment protections, so long as the questioning is carried on without interrupting or restraining the person's movement.

         10. ___: ___: ____. An officer's request that an individual step out of a parked vehicle does not automatically transform a tier-one police-citizen encounter into a tier-two encounter. But, if the totality of the circumstances are such that a reasonable person would believe he or she was not free to ignore the request and stay in the vehicle, a seizure has occurred for Fourth Amendment purposes.

         11. Probable Cause: Words and Phrases. Reasonable suspicion entails some minimal level of objective justification for detention, something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause.

         12. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Whether a police officer has a reasonable suspicion based on sufficient articulable facts depends on the totality of the circumstances and must be determined on a case-by-case basis.

         13. Sentences: Appeal and Error. In reviewing a sentence imposed within the statutory limits, an appellate court considers whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any legal principles in determining the sentence to be imposed.

         14. Sentences. When imposing a sentence, the sentencing court is to consider the defendant's (1) age, (2) mentality, (3) education and experience, [297 Neb. 267] (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         15. ___. Because the appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life, a sentencing court is accorded very wide discretion in imposing a sentence.

         Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed.

          Christopher Eickholt for appellant.

          Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ. Cassel, J.


         In this direct appeal, Latriesha L. Rogers challenges the denial of her motion to suppress evidence seized during the detention and search of a vehicle in which she was a passenger. The critical issue is when the encounter reached the second-tier and what reasonable suspicion existed at that point. Rogers also alleges that she received an excessive sentence. Finding no merit in her arguments, we affirm.


         1. Police-Citizen Encounter

         On August 5, 2015, a Lincoln police officer located a vehicle associated with an individual wanted on a federal indictment. The vehicle was parked on a residential street and had two occupants. A second vehicle was parked in front of the target vehicle with the engine running and three occupants. The officer parked her patrol vehicle in the middle of the [297 Neb. 268] street and approached the second vehicle on foot to ensure the wanted individual was not inside and about to leave.

         On approaching the vehicle, the officer noticed the front seat passenger reach under his seat and directed him to stop in case he had a weapon. The officer then spoke to the driver and explained that she was looking for a wanted individual. Within 20 to 30 seconds, three officers from the Lincoln Police Department and the Metro Area Fugitive Task Force arrived to assist the lead officer in identifying the occupants of the vehicle.

         After a minute had passed, the officer realized that the wanted individual was not in the vehicle. However, she continued to attempt to identify the occupants of the vehicle, because she recognized the driver as a contact for several narcotics investigations and believed he was involved with the selling of narcotics. She also suspected the front seat passenger had hidden a weapon or contraband under the front seat while she walked up to the vehicle. ...

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