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.
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.
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.
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.
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.
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.
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
from the District Court for Lancaster County: Robert R. Otte,
D. Nigro, Lancaster County Public Defender, and Nathan J.
Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
Moore, Chief Judge, and Arterburn, Judge, and Doyle, District
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
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
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
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
was charged by information with possession of a controlled
substance, methamphetamine, a Class IV felony. He was
arraigned and pleaded not guilty.
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
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.
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.
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
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.
assigns the trial court erred in determining reasonable
suspicion existed to justify his stop and detention.
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