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State of Nebraska, appellee, v.

Colton W. Sievers, appella

___ N.W.2d ___

Filed May 18, 2018. No. S-17-518.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/01/2018 09:07 AM CDT
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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: Rober

R. Otte, Judge. Affirme

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 Stac

and Moore, Chief Judge, and Arterburn, Judge, and Doy

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 
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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 
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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 
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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 
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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 
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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 11

⁄2 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 
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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

[1] 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.1

ANALYSIS

[2-4] The issue presented is whether the suspicionless stop 

of Sievers to gather information about stolen property and 

1 State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).
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possible criminal activity at the residence he drove from, for 

which a search warrant was being sought, violated Sievers’ 

Fourth Amendment rights. 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.2 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.3

Evidence obtained as the fruit of an illegal search or seizure is 

inadmissible in a state prosecution and must be excluded.4

There is no dispute in this case that a seizure of Sievers 

occurred when he was stopped by police. We note that Sievers 

has challenged only the initial stop by police; neither the probable cause search of the truck nor Sievers’ arrest are at issue in 

this appeal.

[5] Even a brief, limited governmental intrusion for the 

purpose of investigation must be justified at its inception by 

a showing of reasonable suspicion.5 A seizure for the purpose 

of seeking information when police are investigating criminal activity that might pose a danger to the public, however, 

may be reasonable under the Fourth Amendment even in the 

absence of reasonable articulable suspicion of criminal conduct.6

 The U.S. Supreme Court has explained that “special law 

enforcement concerns,” such as a police roadblock, checkpoint, 

or other detention made for the gathering of information, will 

2 State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).

3 See, Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 

89 (1996); State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

4 State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).

5 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

6 State v. Woldt, 293 Neb. 265, 876 N.W.2d 891 (2016). See, U.S. v. Brewer, 

561 F.3d 676 (7th Cir. 2009); Gipson v. State, 268 S.W.3d 185 (Tex. App. 

2008); State v. Garrison, 911 So. 2d 346 (La. App. 2005); Baxter v. State, 

274 Ark. 539, 626 S.W.2d 935 (1982).
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sometimes justify a stop of a vehicle “without individualized 

suspicion.”7 “Like certain other forms of police activity, say, 

crowd control or public safety, an information-seeking stop is 

not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.”8

 In Illinois v. Lidster,

9

 the 

U.S. Supreme Court scrutinized a highway checkpoint that was 

set up to solicit information from motorists regarding a fatal 

hit-and-run accident. The Court found that a suspicionless, 

“information-seeking” stop made pursuant to the checkpoint 

was constitutional.10 The Court emphasized the “primary law 

enforcement purpose [behind the checkpoint] was not to determine whether a vehicle’s occupants were committing a crime, 

but to ask vehicle occupants, as members of the public, for 

their help in providing information about a crime in all likelihood committed by others.”11

The facts of Lidster concerned a checkpoint set up 1 week 

after the accident, at the same time of night and in the same 

location. The checkpoint was “designed to obtain more information about the accident from the motoring public.”12 The 

Court distinguished an “information-seeking” stop, like the 

stop in Lidster, from the checkpoint program at issue in 

Indianapolis v. Edmond,

13 which involved a vehicle checkpoint established for the purpose of discovery and interdiction 

of drug crimes, an objective which the Court said served a 

“‘general interest in crime control.’”14 The Court found that 

7 Illinois v. Lidster, 540 U.S. 419, 424, 124 S. Ct. 885, 157 L. Ed. 2d 843 

(2004).

8 Id., 540 U.S. at 424-25.

9 Lidster, supra note 7.

10 Id., 540 U.S. at 426.

11 Id., 540 U.S. at 423 (emphasis in original).

12 Id., 540 U.S. at 422.

13 Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 

(2000).

14 Lidster, supra note 7, 540 U.S. at 424.
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the prohibition in Edmond on searches conducted pursuant 

to a “‘general interest in crime control’” did “not refer to 

every ‘law enforcement’ objective” and stated that “special law 

enforcement concerns will sometimes justify highway stops 

without individualized suspicion.”15

[6,7] Although a suspicionless information-seeking stop 

is not per se unreasonable, that does “not mean the stop 

is automatically, or even presumptively, constitutional. It 

simply means that [a court] must judge its reasonableness, 

hence, its constitutionality, on the basis of the individual 

circumstances.”16 In determining whether the stop of Sievers 

was reasonable, we apply the three-part balancing test outlined 

in Brown v. Texas,

17 which recognizes that warrantless seizures 

without reasonable suspicion may be reasonable under certain 

circumstances.

The reasonableness of seizures that are less intrusive than a traditional arrest . . . depends “on a balance 

between the public interest and the individual’s right to 

personal security free from arbitrary interference by law 

officers.” . . . Consideration of the constitutionality of 

such seizures involves a weighing of the gravity of the 

public concerns served by the seizure, the degree to which 

the seizure advances the public interest, and the severity 

of the interference with individual liberty. . . .

A central concern in balancing these competing considerations in a variety of settings has been to [en]sure 

that an individual’s reasonable expectation of privacy 

is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. . . . To this end, 

the Fourth Amendment requires that a seizure must be 

based on specific, objective facts indicating that society’s 

15 Id., citing Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 

2481, 110 L. Ed. 2d 412 (1990).

16 Id., 540 U.S. at 426.

17 Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).
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legitimate interests require the seizure of the particular 

individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on 

the conduct of individual officers.18

In Lidster, the U.S. Supreme Court applied the balancing 

test from Brown and found that the suspicionless checkpoint 

stop at issue was reasonable.19 We have also addressed the 

constitutionality of checkpoint stops. In State v. Crom,

20

we cited Brown and found that a motorist has a reasonable expectation of privacy which is not subject to arbitrary 

invasions solely at the unfettered discretion of police officers in the field. We found the checkpoints at issue were 

unconstitutional, because they were not administered pursuant to an official plan and the officers were therefore 

free to subject motorists to arbitrary invasion at their unfettered discretion.21

More recently, in State v. Piper,

22 we applied Brown and 

cited Lidster in determining that the stop of a vehicle at a 

highway checkpoint conducted by the Nebraska State Patrol 

was reasonable. We noted that in Michigan Dept. of State 

Police v. Sitz,

23 the U.S. Supreme Court approved the use of 

sobriety checkpoints intended to prevent drunk driving. We 

considered the purpose of the checkpoint, the degree of intrusion, and the discretion of the officers. We found the stop was 

reasonable, because the checkpoint was intended to target alcohol violations, the degree of intrusion was minimal, and the 

checkpoint was authorized by an approved plan and conducted 

in a manner that complied with the plan and did not allow 

18 Id., 443 U.S. at 50-51 (citations omitted).

19 Lidster, supra note 7.

20 State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986).

21 Id.

22 Piper, supra note 2.

23 Sitz, supra note 15.
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the officers to exercise unfettered discretion in administering 

the checkpoint.24

We addressed the constitutionality of an informationgathering stop of a vehicle that did not involve a checkpoint 

or roadblock in State v. Woldt.

25 In that case, an officer was 

investigating a report of knocked-over traffic cones when, 

while picking up the cones, he heard squealing tires, and he 

then stopped a vehicle he thought might be involved. After the 

first vehicle pulled over and stopped near the police cruiser, a 

second vehicle that the officer had seen driving within a car 

length or less of the first vehicle parked across the street from 

the police cruiser. The officer approached the first vehicle and 

smelled the odor of alcohol and observed signs that the driver 

might have been impaired. The second vehicle reversed as if 

to drive away, but stopped when the officer signaled the driver 

to do so.

The officer wanted to speak with the second driver about 

the first driver’s activities. The officer then observed the 

second driver was impaired, and the second driver was then 

arrested, charged, and convicted of driving under the influence. In applying the test from Brown, we determined the 

stop was reasonable because of the following: The circumstances presented a grave public concern; driving under the 

influence, which can rise to the level of a Class II felony, 

presents a threat to other citizens on the road; the stop 

advanced the public interest, because it was reasonable to 

conclude the second driver would have relevant information 

and the stop would have allowed the officer to obtain the 

driver’s contact information and a witness statement; and the 

interference with the driver’s liberty was slight, because he 

had already stopped.26

24 Piper, supra note 2.

25 Woldt, supra note 6.

26 Id.
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Since Lidster, courts have applied the special law enforcement concerns rationale to non-checkpoint stops and found 

such stops reasonable.27 In U.S. v. Brewer,

28 the Seventh 

Circuit applied Lidster and upheld a stop of a vehicle based 

upon a report of gunfire when it was the only vehicle seen 

driving from an apartment complex renowned for criminal 

activity. The court found that even though there was no evidence the driver had committed any law violations, the stopping officer was “not acting randomly in deciding that the only 

car emerging from the apartment complex moments after he 

heard shots from within it should be intercepted.”29

The court further observed, “It was a natural surmise that 

whoever fired the shots had left the complex, and the street 

that the defendant’s vehicle was driving on was . . . the 

only street leading from it, and he was driving away from 

rather than towards it . . . and, sure enough, there was no 

other traffic.”30

The court balanced the dangerousness of the crime against 

the intrusion on the occupants of the vehicle and explained the 

vehicle stopped

was the only vehicle on the road at that late hour in this 

high crime area, and it was pulled over and stopped for 

only moments before the officers making the stop learned 

that the SUV had been seen at the site of the shooting and that the occupants may have been involved in 

the shooting.31

27 See, e.g., Brewer, supra note 6; Gipson, supra note 6; State v. Mitchell, 

145 Wash. App. 1, 186 P.3d 1071 (2008); State v. Watkins, 207 Ariz. 

562, 88 P.3d 1174 (Ariz. App. 2004). See, also, State v. Pierce, 173 Vt. 

151, 787 A.2d 1284 (2001) (applying Brown factors pre-Lidster); In re 

Muhammad F., 94 N.Y.2d 136, 722 N.E.2d 45, 700 N.Y.S.2d 77 (1999) 

(same).

28 Brewer, supra note 6.

29 Id. at 679.

30 Id. at 678.

31 Id. at 679.
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This case presents a seizure that is less intrusive than a traditional arrest. Thus, the application of the Brown balancing 

test is appropriate.

Gravity of Public Co

Under the first prong of the test from Brown, a court should 

consider the gravity of the public concern served by the seizure. The public concern presented by the facts of this case 

is the officers’ investigation of the York County burglary, as 

well as their investigation of a distributor of large quantities 

of methamphetamine.

The criminal investigation produced evidence that stolen 

property was inside the target residence, including firearms, 

jewelry, approximately $30,000 in cash, and gold coins. 

The resident’s receipt of stolen property constitutes theft.32

The value of the stolen items in this case exceeded $5,000, 

which constitutes a Class IIA felony.33 In addition, there is 

the apparent concern that a semiautomatic pistol and shotguns were stolen and unaccounted for. In the context of 

the investigation, these weapons could have been used in 

connection with narcotics transactions, which presents safety 

risks to police officers and the public. Further, the knowing receipt, retention, or possession of a stolen firearm is a 

Class IIA felony.34

In the officers’ testimony, they articulated specific facts 

which led them to believe that methamphetamine was 

being sold from the residence. The officers learned from 

the informant, whose reliability has not been called into 

question,35 and whose information was only 5 days old at 

the time, that between 6 and 10 ounces of methamphetamine were at the residence. The possession with the intent 

32 See Neb. Rev. Stat. § 28-510 (Reissue 2016).

33 See Neb. Rev. Stat. § 28-518(1) (Reissue 2016).

34 See Neb. Rev. Stat. § 28-1212.03 (Reissue 2016).

35 See State v. Bray, 297 Neb. 916, 902 N.W.2d 98 (2017).
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to distribute this amount of methamphetamine constitutes a 

Class IB felony.36

The fact that the truck was stopped so that police could ask 

the motorist for information about a recent burglary and the 

presence of stolen property and narcotics weighs against the 

conclusion that the stop was constitutionally unreasonable.37

We conclude that the circumstances here involved ongoing 

criminal activity which presented a grave public concern.

Degree to Which Sei

Advances Public I

As to the second factor of the Brown test, a court should 

consider the degree to which the seizure advances the public 

interest. Courts have recognized that motorist stops may significantly advance the investigation of serious crimes in cases 

where motorists are stopped soon after the crime and in the 

vicinity where the crime occurred.38 The investigative value 

of such a stop is significant, because the stopped motorists 

“might well have been in the vicinity of the crime at the time 

it occurred.”39

At the time, the officers were preparing to execute a search 

warrant on the target residence. Vrbka and Winkler first identified the location of the house with assistance from the informant, who stated that the resident of the house was the owner 

of the Volkswagen parked at the residence and that he had 

witnessed the resident sell $3,000 worth of methamphetamine 

5 days prior. He said that the resident had more to sell and that 

officers could also find the gun safe in the living room hidden 

under a blanket.

When the task force first identified the residence, the truck 

was not present. A short time later, when Schilmoeller arrived 

36 See Neb. Rev. Stat. § 28-416(1) and (10)(a) (Supp. 2015).

37 See State v. Gorneault, 918 A.2d 1207 (Me. 2007).

38 State v. LaPlante, 26 A.3d 337 (Me. 2011).

39 Lidster, supra note 7, 540 U.S. at 427.
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on scene, he observed the unoccupied truck parked next to the 

Volkswagen. Thereafter, the target address was under police 

surveillance without interruption for 20 to 30 minutes until 

Schilmoeller saw the truck leave. Given the highly specific 

location of the truck, parked next to a small building suspected of containing narcotics and stolen firearms, and parked 

next to the suspect’s vehicle on an offstreet driveway, the 

officers were reasonable to infer that Sievers had just been 

inside the residence and had made contact with the resident 

and that therefore, he could have information pertinent to 

the investigation.

The officers’ testimony made clear they were faced with a 

dynamic situation in which drugs or firearms could soon be 

moved before the imminent acquisition and execution of a 

search warrant. Shortly before the stop, Winkler set up surveillance units in order to prevent the movement of stolen 

property. The stop was made pursuant to the specific information-seeking purpose of determining whether the lone vehicle 

observed leaving the residence contained property sought in 

the investigation.

Both the stop and ensuing investigation were diligently carried out. The reasonableness of the stop is supported by the 

presence of stolen firearms and other property; the use of the 

stolen property to purchase methamphetamine; the large store 

of methamphetamine at the target address, which to the officers’ knowledge had not yet been moved or destroyed; and the 

short period in which the felonies were occurring. Society’s 

legitimate interests required the seizure based on special law 

enforcement concerns of specific, known, ongoing crimes, as 

opposed to a general interest in crime control.

This conclusion is further supported by the U.S. Supreme 

Court’s decision in Illinois v. McArthur,

40 which found lawful 

a temporary detention made near a house suspected of criminal 

40 Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 

(2001).
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activity while officers were seeking a search warrant for the 

house. The Court found the temporary detention was tailored 

to the need of ensuring against the destruction of evidence in 

the house and was properly limited in time and scope. The 

Court said that the warrantless seizure was not per se unreasonable, because it involved a specially pressing or urgent 

law enforcement need, and that because the law enforcement 

concerns outweighed the individual privacy concerns, the stop 

was lawful.41 The Court explained it had “upheld temporary 

restraints where needed to preserve evidence until police 

could obtain a warrant” and noted it had found no case in 

which it had “held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss 

of evidence while the police diligently obtained a warrant in a 

reasonable period of time.”42

Here, the information-seeking stop of Sievers was limited in 

time and scope based on the task force’s “pre-warrant investigation” of the residence and tailored to the need to ensure 

against the loss of stolen properly while police obtained a 

search warrant for the residence.

Based on the circumstances here, we conclude the stop 

advanced the public interest.

Severity of Interfe

With Individual Libe

As to the last factor, we recognize the stop of Sievers 

restrained his liberty. Hubka activated his police cruiser’s 

emergency lights to pull over Sievers while Sievers was operating his truck. Sievers’ stop was more likely to cause alarm 

or anxiety than a roadblock, because upcoming roadblocks 

are clearly visible and Sievers did not have advanced notice 

that he would be stopped.43 We reiterate, however, this fact 

41 Id.

42 Id., 531 U.S. at 334.

43 See LaPlante, supra note 38.
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does not render the stop per se unreasonable. “The Fourth 

Amendment does not treat a motorist’s car as his castle.”44

In Lidster, the Court found the stop of a vehicle along a public road was no greater of an intrusion than an officer who 

approaches a person on the street to question the individual. 

The Court said the stop

[a]nd the resulting voluntary questioning of a motorist is 

as likely to prove important for police investigation as 

is the questioning of a pedestrian. Given these considerations, it would seem anomalous were the law (1) ordinarily to allow police freely to seek the voluntary cooperation of pedestrians but (2) ordinarily to forbid police to 

seek similar voluntary cooperation from motorists.45

The balance under Brown v. Texas is between the public 

interest and an individual’s right to personal security free 

from “‘arbitrary interference by law officers.’”46 The test is 

grounded in the reasonableness of the official conduct and the 

presence of limitations on official discretion. In this case, it 

is undisputed that the officers had established probable cause 

that felonies were occurring at the residence. Such determination was based on specific, objective facts provided by 

the informant and police surveillance, “indicating that society’s legitimate interests require[d] the seizure of the particular individual.”47

The “mission” of the stop was limited in scope. The 

stop was focused on gathering information about the presence of drugs and specific stolen property, and as the stop 

of the truck ensued, it almost immediately yielded further 

evidence of criminal conduct. Hubka testified that as he 

approached the truck, he observed Sievers’ making furtive 

movements consistent with hiding evidence or reaching for a 

44 Lidster, supra note 7, 540 U.S. at 424.

45 Id., 540 U.S. at 426.

46 Brown, supra note 17, 443 U.S. at 50.

47 See id., 443 U.S. at 51.
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weapon. Deliberately furtive actions are a strong indication of 

mens rea.48

As noted, the sole issue presented is the reasonableness of 

the initial stop. The fact that the officers were “extra assertive” when they contacted Sievers is not probative of the reasonableness of the initial stop, because the stop of the vehicle 

disclosed other reasons to escalate the detention of Sievers.49

There is no indication the officers did anything other than 

pursue a plan tailored to seeking information of ongoing 

crimes at the residence to be searched. The stop was a direct 

effort to temporarily maintain the status quo so that evidence 

of stolen property and narcotics at the target address could be 

preserved while officers concluded the final steps to obtain and 

execute a search warrant.

Balancing Brown 

In balancing the Brown factors, on our de novo review, 

we find that Sievers was lawfully stopped. Officers sought to 

temporarily stop and question the driver of the truck for the 

purpose of investigating specific and known felonies, as well 

as the presence of narcotics and firearms. The grave public 

concern at issue heavily weighs in favor of the reasonableness 

of the stop.

The stop of Sievers to see if he had any information about 

the target residence or stolen property advanced the task 

force’s investigation. Police knew Sievers’ truck had just 

arrived at the target address and was parked in the driveway to 

the outbuilding, behind a primary residence, next to a vehicle 

owned by a suspected dealer of methamphetamine. After surveilling the scene without interruption for 20 to 30 minutes, 

the officers saw the truck moving from the residence. The 

48 See Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 

(1968).

49 See U.S. v. Casares-Cardenas, 14 F.3d 1283 (8th Cir. 1994).
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officers were reasonable to conclude the driver of the truck 

had information to provide.

Finally, although the stop was an intrusion upon Sievers’ 

liberty, the initial stop was not unnecessarily prolonged and 

the interference is not enough to counterbalance the officers’ 

need to resolve grave and immediate threats to the public.

The critical mass of special law enforcement concerns presented in this case justifies the application of a rare exception 

to the rule against suspicionless searches and seizures. We do 

so only after ensuring that the officers’ conduct was narrow in 

scope and that Sievers’ privacy interests were not subject to 

arbitrary invasions at the unfettered discretion of officers in 

the field.

Although our reasoning differs from that of the district 

court, when all the factors are weighed, we conclude that the 

stop was reasonable under Brown.

50

CONCLUSION

Based on the foregoing reasons, we conclude the stop 

of Sievers was lawful. The judgment of the district court 

is affirmed.

Affirmed

Wright and Funke, JJ., not participati

50 Brown, supra note 17.