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STATE v. ROGERS

Cite as 297 Neb. 265

State of Nebraska, appellee, v.

Latriesha L. Rogers, appell

___ N.W.2d ___

Filed July 21, 2017. No. S-16-1114.

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 noncoercive 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 

Nebraska Supreme Court Online Library

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

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police-citizen encounter involves a brief, nonintrusive detention during 

a frisk for weapons or preliminary questioning. A tier-three policecitizen 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 policecitizen 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, 
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(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: Lor

A. Maret, Judge. Affirme

Christopher Eickholt for appellant.

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

appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke,

Cassel, J.

I. INTRODUCTION

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.

II. BACKGROUND

1. Police-Citizen En

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 
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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. She did not recognize that passenger 

or the one in the back seat, but the back seat passenger was 

later identified as Rogers.

While identifying the occupants of the vehicle, the officers 

had the three individuals exit the vehicle and the front seat 

passenger was arrested after determining there was a warrant 

for his arrest. After Rogers exited the vehicle, the lead officer 

looked through the windows and noticed a purse with a small 

plastic bag sticking out of it on the floor in the back seat. 

The officer recognized the bag as consistent with those used 

in narcotics sales and asked for consent to search the vehicle, 

but her request was denied. At this point, the officers called 

for a drug detection dog to conduct a sniff search around 

the vehicle.

The drug detection dog alerted on the driver’s side of the 

vehicle, and the officers then conducted a search of the vehicle 

and its contents—including the purse on the floor of the back 

seat. The search of the purse yielded a pipe and the observed 

plastic bag which contained some residue. The pipe pretested 
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positive for amphetamines. After the pipe and purse were confirmed to belong to Rogers, she was arrested and charged with 

possession of a controlled substance.

2. Motion to Suppr

Rogers filed a motion to suppress evidence concerning the 

stop and search of the vehicle and the evidence seized as a 

result of the search. Following a hearing, the district court 

overruled the motion. The court concluded that the encounter 

was initially a first-tier encounter that escalated to a secondtier and eventually a third-tier encounter. And, it found that 

there was reasonable suspicion of illegal activity to justify 

the second-tier investigation based on the lead officer’s past 

encounters with the driver of the vehicle, “the furtive movements of the front seat passenger, and the observation of the 

baggie in the purse in the rear passenger floor board.”

The case proceeded to trial, where Rogers preserved her 

objection raised in the motion to suppress. After all the evidence was presented, the jury found Rogers guilty of the crime 

charged. The district court sentenced her to 20 months’ to 5 

years’ imprisonment.

Rogers appealed, and we moved the case to our docket.1

III. ASSIGNMENTS OF ERROR

Rogers assigns, restated, that the district court erred in 

(1) overruling her motion to suppress the stop and search of 

a vehicle in which she was a passenger and the subsequent 

search and seizure of its contents and (2) imposing an excessive sentence.

IV. STANDARD OF REVIEW

[1,2] 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.2

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

2 State v. Milos, 294 Neb. 375, 882 N.W.2d 696 (2016).
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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.3 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.4

[3] We will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.5

V. ANALYSIS

1. Seizur

Rogers alleges that the district court erred when it overruled 

her motion to suppress evidence obtained as a result of her 

encounter with law enforcement officials on August 5, 2015. 

She argues that the initial encounter with the lead law enforcement officer amounted to a seizure when she was detained 

after the officer determined the wanted individual was not in 

the vehicle. And, she argues that the investigatory stop was not 

supported by reasonable suspicion.

[4,5] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution guarantee against 

unreasonable searches and seizures.6 Evidence obtained as the 

fruit of an illegal search or seizure is inadmissible in a state 

prosecution and must be excluded.7

To analyze the legality of the search and seizure, we must 

first determine when the seizure occurred and then address 

whether the seizure was supported by reasonable suspicion.

3 Id.

4 State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).

5 State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).

6 State v. Milos, supra note 2.

7 Id.
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(a) Classification of 

Police-Citizen Encounter

[6] We have described three tiers of police-citizen encounters.8

 A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive 

questioning and does not involve any restraint of liberty of the 

citizen.9 Because tier-one encounters do not rise to the level of 

a seizure, they are outside the realm of Fourth Amendment protection.10 A tier-two police-citizen encounter involves a brief, 

nonintrusive detention during a frisk for weapons or preliminary questioning.11 A tier-three police-citizen encounter constitutes an arrest, which involves a highly intrusive or lengthy 

search or detention.12 Tier-two and tier-three police-citizen 

encounters are seizures sufficient to invoke the protections of 

the Fourth Amendment to the U.S. Constitution.13

[7-9] 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.14 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.15 But an 

officer’s merely questioning an individual in a public place, 

8 See State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).

9 State v. Milos, supra note 2.

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.
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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.16

Without repeating all the facts recited above, it is clear that 

the police-citizen encounter began as a tier-one encounter and 

escalated to a tier-two encounter when Rogers and the other 

two passengers were directed to exit the vehicle. The district 

court did not account for the passengers exiting or being 

asked to exit the vehicle when it made its determination on 

the motion to suppress. Thus, on this point, we are not constrained by a specific finding of historical fact.

[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.17 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.18 The circumstances of the encounter 

demonstrate that the law enforcement officials made a significant show of authority before asking Rogers to exit the 

vehicle. The passengers were outnumbered and surrounded by 

law enforcement officials. And, Rogers was asked to exit the 

vehicle after one of the other passengers was arrested. These 

16 Id.

17 Id.

18 See State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009). See, 

also, Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 

660 (1979); Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 

(1998); Sharp v. U.S., 132 A.3d 161 (D.C. 2016); Popple v. State, 626 

So. 2d 185 (Fla. 1993); People v Freeman, 413 Mich. 492, 320 N.W.2d 

878 (1982); State in Interest of A.P., 315 N.J. Super. 166, 716 A.2d 1211 

(1998); People v Harrison, 57 N.Y.2d 470, 443 N.E.2d 447, 457 N.Y.S.2d 

199 (1982); Johnson v. State, 658 S.W.2d 623 (Tex. Crim. App. 1983), 

overruled on other grounds, Woods v. State, 956 S.W.2d 33 (Tex. Crim. 

App. 1997).
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circumstances surrounding the request to exit the vehicle 

would have made a reasonable person believe that he or she 

was not free to stay in the vehicle. Consequently, for the 

request to exit the vehicle to be a lawful seizure, the officer 

needed to have reasonable suspicion of criminal activity.

(b) Reasonable Suspicion

Rogers alleges that the lead officer had no reasonable suspicion of illegal activity to justify the detention of the passengers 

of the vehicle after the lead officer determined the wanted 

individual was not in the vehicle. She argues that the detention was only supported by a “‘hunch’” that the driver may be 

involved in illegal activity because he lived with individuals 

who were being investigated for the sale of narcotics.19

[11,12] 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.20 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.21

In this case, the lead officer witnessed the front seat passenger reach underneath his seat, which suggested to her that 

he was possibly retrieving or hiding contraband or weapons.22

The officer also recognized the driver as a known contact 

for narcotics, and the assisting officers provided narcotics 

intelligence regarding the front seat passenger. These facts 

combined with the close proximity of the vehicle to the target 

vehicle associated with a wanted individual were sufficient to 

19 Brief for appellant at 17.

20 State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013).

21 State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).

22 See State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006) (determining 

that observing passenger reach under seat to stow something contributed to 

reasonable suspicion).
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give rise to a reasonable suspicion that the occupants of the 

vehicle were involved in illegal drug activity.

After the lead officer observed the small plastic bag, similar 

to those used in narcotics sales, inside Rogers’ purse, the officers had reasonable suspicion to further detain Rogers and the 

other passengers of the vehicle for a drug detection dog sniff. 

It is undisputed that the drug detection dog sniff was initiated 

and concluded within a reasonable time and that the officers 

had probable cause to search the vehicle after the dog alerted to 

the presence of drugs. Therefore, the district court did not err 

in overruling Rogers’ motion to suppress.

2. Sent

Rogers alleges that she received an excessive sentence, 

because the district court “failed to meaningfully consider 

the circumstances surrounding the offense, the nature of the 

offense, the age, mentality and history of [Rogers] and the 

circumstances relating to [Rogers’] life.”23 She argues that the 

district court made no specific factual findings to justify the 

sentence and should have explained the maximum sentence 

that “should be saved for the ‘worst of the worst’ offenders.”24

Because Rogers was convicted of a Class IV felony committed 

before August 30, 2015, she was subject to a sentence of up 

to 5 years’ imprisonment, a $10,000 fine, or both.25 Thus, her 

sentence of 20 months’ to 5 years’ imprisonment was within 

the statutory limits.

[13,14] 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.26 When imposing a sentence, the 

23 Brief for appellant at 21.

24 Id. at 23.

25 Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014). See, also, § 28-105(8) 

(Reissue 2016) and Neb. Rev. Stat. § 28-116 (Reissue 2016).

26 State v. Loding, supra note 5.
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sentencing court is to consider the defendant’s (1) age, (2) 

mentality, (3) education and experience, (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.27

[15] There is no evidence that the district court failed to 

consider the appropriate factors in sentencing Rogers. And, 

the court was not required to make specific factual findings to 

justify the sentence imposed. 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.28 Accordingly, we 

conclude that the court did not abuse its discretion in imposing 

Rogers’ sentence.

VI. CONCLUSION

We conclude that the officers’ seizure of Rogers was supported by reasonable suspicion and that the district court did 

not err in overruling Rogers’ motion to suppress. Because we 

also conclude that the sentence imposed did not constitute 

an abuse of discretion, we affirm the judgment of the district court.

Affirmed

27 Id.

28 See, State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016); State v. Custer, 

292 Neb. 88, 871 N.W.2d 243 (2015).