State v. Rogers, 297 Neb. 265

Background

On Aug. 5, 2015, Lincoln police located a parked vehicle near a vehicle associated with a person wanted on a federal indictment; the parked vehicle had three occupants, including defendant Latriesha Rogers in the back seat.
The lead officer approached, saw the front-seat passenger reach under his seat, and began identifying occupants; additional officers arrived and the front passenger was arrested on a warrant.
After occupants were ordered out, the officer observed a purse on the back-seat floor with a small plastic bag protruding; the officer requested consent to search and was refused.
A drug-detection dog was summoned, alerted on the driver’s side, and officers searched the vehicle, finding a pipe and the plastic bag (residue tested positive for amphetamines); the items were identified as belonging to Rogers, who was arrested and charged with possession.
Rogers moved to suppress evidence as the fruit of an unlawful seizure and search; the district court denied suppression, a jury convicted Rogers, and she was sentenced to 20 months to 5 years’ imprisonment.
Rogers appealed, arguing (1) the detention/exit-order was a seizure unsupported by reasonable suspicion and (2) her sentence was excessive; the Nebraska Supreme Court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ordering passengers out of the car created a Fourth Amendment seizure	Rogers: ordering occupants out after the wanted person was ruled out became a seizure and required reasonable suspicion	State: initial contact was tier-one; ordering occupants out under show of authority escalated encounter to tier-two but was supported by reasonable suspicion	Court: ordering them out constituted a seizure; given totality of facts, officers had reasonable suspicion, so seizure lawful
Whether officers had reasonable suspicion to detain and investigate for drug activity	Rogers: suspicion was only a hunch based on driver’s associations; insufficient to detain passengers	State: furtive movement under seat, officer’s knowledge of driver as narcotics contact, assisting officers’ intelligence, and the observed bag in purse together supplied reasonable suspicion	Court: combined facts met the reasonable-suspicion standard; detention and subsequent dog sniff were lawful
Admissibility of dog-sniff and resulting search	Rogers: evidence was fruit of unlawful detention and should be suppressed	State: dog sniff occurred within reasonable time; dog alert provided probable cause for search	Court: dog sniff lawful and alert gave probable cause; evidence admissible
Whether sentence was excessive	Rogers: district court failed to meaningfully consider mitigating factors and to justify sentence	State: sentence within statutory limits and court considered relevant factors	Court: no abuse of discretion; sentence within statutory bounds and court not required to make specific factual findings

Key Cases Cited

State v. Milos, 294 Neb. 375 (appellate standard for suppression and tiers of police-citizen encounters)
State v. Hedgcock, 277 Neb. 805 (request to exit vehicle may be a seizure under totality of circumstances)
State v. Voichahoske, 271 Neb. 64 (furtive movement under seat contributes to reasonable suspicion)
State v. Au, 285 Neb. 797 (definition and standard for reasonable suspicion)
State v. Wells, 290 Neb. 186 (totality-of-circumstances analysis for investigative stops)
Delaware v. Prouse, 440 U.S. 648 (officer stops and Fourth Amendment search-and-seizure principles)
State v. Draper, 295 Neb. 88 (sentencing discretion and consideration of factors)
State v. Loding, 296 Neb. 670 (review of sentences imposed within statutory limits)