State v. Rogers, 899 N.W.2d 626

Background

On Aug. 5, 2015, Lincoln police approached a parked vehicle tied to a wanted person; two occupants were in that vehicle and a second vehicle with three occupants (including Rogers) was parked nearby.
The lead officer approached the second vehicle, observed the front-seat passenger reach under his seat, and began identifying occupants; additional officers arrived shortly thereafter.
The front-seat passenger of Rogers’ vehicle was arrested on an unrelated warrant; officers then had the three passengers exit the vehicle and the lead officer observed a purse on the backseat floor with a small plastic bag protruding.
Officers requested consent to search the vehicle (consent denied), summoned a drug detection dog, which alerted on the driver’s side; a subsequent search yielded a pipe and residue in the purse belonging to Rogers. Rogers was arrested and charged with possession of a controlled substance.
Rogers moved to suppress the stop and search; the district court denied the motion. After a jury conviction, she was sentenced to 20 months to 5 years. Rogers appealed suppression and claimed her sentence was excessive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the encounter became a seizure when passengers were directed to exit the vehicle	Rogers: directing passengers out after the wanted person was ruled out transformed the encounter into a seizure	State: initial contact was tier-one; directing occupants out—given officers’ show of authority—constituted a lawful escalation to tier-two if supported by reasonable suspicion	Court: directing occupants out was a seizure (tier-two); reasonable person would not feel free to remain in vehicle
Whether officers had reasonable suspicion to detain passengers and conduct a dog sniff	Rogers: detention lacked more than a ‘‘hunch’’; driver’s association with investigated persons insufficient	State: furtive movement under the seat, driver’s narcotics-related contacts, and baggie visible in purse provided articulable facts supporting reasonable suspicion	Court: totality of circumstances (furtive movement, driver intelligence, visible bag) gave reasonable suspicion; further detention and dog sniff lawful
Whether the dog sniff and resulting search were lawful	Rogers: fruits of unlawful detention, so evidence should be suppressed	State: dog sniff occurred after reasonable suspicion; dog alerted giving probable cause for search	Court: dog sniff was timely and lawful; alert provided probable cause; evidence admissible
Whether the sentence (20 months–5 years) was excessive	Rogers: court failed to meaningfully consider mitigating factors or explain reasons; maximum should be reserved for worst offenders	State: sentence within statutory limits and sentencing court considered relevant factors	Court: sentence within statutory limits; no abuse of discretion; district court did not err

Key Cases Cited

State v. Milos, 294 Neb. 375 (discusses tiered police-citizen encounters and seizure standards)
State v. Tyler, 291 Neb. 920 (standards for assessing Fourth Amendment seizures)
State v. Loding, 296 Neb. 670 (review of suppression rulings and appellate standards)
State v. Van Ackeren, 242 Neb. 479 (background on police-citizen encounter tiers)
State v. Hedgcock, 277 Neb. 805 (officer request to exit vehicle can be a seizure under totality of circumstances)
State v. Voichahoske, 271 Neb. 64 (furtive movements can contribute to reasonable suspicion)
State v. Draper, 295 Neb. 88 (sentencing discretion and factors)
State v. Custer, 292 Neb. 88 (sentencing review principles)