State v. Rogers, 297 Neb. 265

Background

On Aug. 5, 2015, Lincoln police approached a parked vehicle near another car tied to a person wanted on a federal indictment; the target car had three occupants, including Rogers in the rear seat.
The lead officer saw the front-seat passenger reach beneath his seat, suspected a weapon/contraband, and called additional officers; one passenger was arrested on an outstanding warrant.
After occupants were ordered out, the officer spotted a purse on the rear floor with a small plastic bag protruding that resembled narcotics packaging; consent to search was denied.
A drug-detection dog was summoned, alerted on the driver’s side, and officers searched the vehicle, recovering a purse, a pipe, and a bag with residue; the pipe tested positive for amphetamines and was linked to Rogers.
Rogers moved to suppress the stop and search; the district court denied suppression, she was convicted by a jury of possession of a controlled substance, and sentenced to 20 months to 5 years.
On appeal to the Nebraska Supreme Court Rogers argued the exit-order/stop was an unlawful seizure unsupported by reasonable suspicion and that her sentence was excessive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether directing passengers to exit the vehicle constituted a Fourth Amendment seizure	Rogers: ordering occupants out transformed the encounter into a seizure requiring reasonable suspicion	State: initial contact was tier-one and the exit order occurred after officers had authority and articulable facts to detain	Court: ordering occupants out was a tier-two seizure under totality of circumstances (surrounded, outnumbered, arrest of another passenger)
Whether officers had reasonable suspicion to detain after discovering wanted person was not present	Rogers: officer only had a hunch based on the driver’s associations; insufficient articulable facts	State: officer observed furtive reaching under seat, knew driver was a known narcotics contact, received assisting officers’ intel, and saw a baggie in purse	Court: combined facts gave more than a hunch and satisfied reasonable suspicion to detain and conduct a dog sniff
Legality of dog sniff and subsequent search	Rogers: evidence flowed from unlawful detention so sniff/search should be suppressed	State: dog sniff occurred within reasonable time, alert gave probable cause to search	Court: dog sniff lawful; alert provided probable cause; search and seizure admissible
Whether sentence (20 months–5 years) was excessive	Rogers: court failed to meaningfully consider mitigating factors or explain sentence	State: sentence is within statutory limits and court considered appropriate factors	Court: no abuse of discretion; within statutory range and sentencing court afforded wide discretion

Key Cases Cited

State v. Milos, 294 Neb. 375 (Neb. 2016) (review standard for suppression rulings; tiers of police-citizen encounters)
State v. Tyler, 291 Neb. 920 (Neb. 2015) (Fourth Amendment seizure analysis)
State v. Loding, 296 Neb. 670 (Neb. 2017) (sentencing review and discretion)
State v. Van Ackeren, 242 Neb. 479 (Neb. 1993) (description of police-citizen encounter tiers)
Delaware v. Prouse, 440 U.S. 648 (U.S. 1979) (limitations on random stops and seizure principles)
State v. Hedgcock, 277 Neb. 805 (Neb. 2009) (exit-order seizure analysis under totality of circumstances)
State v. Voichahoske, 271 Neb. 64 (Neb. 2006) (furtive movements support reasonable suspicion)
State v. Draper, 295 Neb. 88 (Neb. 2016) (sentencing factors and judge’s discretion)
State v. Custer, 292 Neb. 88 (Neb. 2015) (sentence appropriateness and appellate review)