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State v. Slevers

Supreme Court of Nebraska

May 18, 2018

State of Nebraska, appellee,
v.
Colton W. Slevers, 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 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 [300 Neb. 27] 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 [300 Neb. 28] 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 Lincoln-Lancaster County Narcotics Task Force, to confirm the location of the building which contained the stolen property. Following the informant's directions, Vrbka, Winkler, and the informant drove down an alley in a 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 [300 Neb. 29] 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 [300 Neb. 30] 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 [300 Neb. 31] 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 [300 Neb. 32] 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 1/4 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 [300 Neb. 33] at the time of the stop, the only reason he had to believe that Sievers had been in the target address was the fact the truck was parked in the driveway, next to the Volkswagen, and that he had observed it drive away from the residence. Schilmoeller admitted he was not in a position to see if someone came from the residence and got into the truck.

         The trial court overruled the motion to suppress, stating it found the officers' testimony to be credible. The court stated that "there was an ongoing investigation and the officers had reasonable cause to believe that a crime had been committed and had reasonable suspicion to justify the stop even though the information was not complete or precise."

         The matter proceeded to a stipulated bench trial. Sievers renewed his motion, which the court overruled. The court found Sievers guilty and sentenced him to serve 90 days in the county jail, with 3 days' credit for time served and 1 year's postrelease supervision. Sievers appeals.

         ASSIGNMENT OF ERROR

         Sievers assigns the trial court erred in determining 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 ...


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