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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. SIEVERS

Cite as 301 Neb. 806

State of Nebraska, appellee, v.

Colton W. Sievers, appella

___ N.W.2d ___

Filed December 7, 2018. No. S-17-518.

supplemental opin

Appeal from the District Court for Lancaster County: Rober

R. Otte, Judge. Supplemental opinion: Former opinion modified. Motion for rehearing overrule

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 Stac

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

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).

Nebraska Supreme Court Online Library

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

12/14/2018 01:10 AM CST
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Nebraska Supreme Court Advance S

301 Nebraska Report

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 warrant 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 Conc 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 authorize 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 residence 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 Advance S

301 Nebraska Report

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 Advance S

301 Nebraska Report

STATE v. SIEVERS

Cite as 301 Neb. 806

Under the totality of the circumstances and the individualized 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 information 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 narrow 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 modif

 Motion for rehearing overr

Wright and Funke, JJ., not participati