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12/28/2018 08:09 AM CST




                                                        - 806 -
                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                 STATE v. SIEVERS
                                                 Cite as 301 Neb. 806




                                        State 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. 806

            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 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. 806

     Under 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.
