Fourth Amendment scholars are hoping the U.S. Supreme Court uses a Lincoln man’s drug possession case as a chance to give lower courts — including the Nebraska Supreme Court — guidance about when law enforcement can stop drivers.

Lancaster County Public Defender Joe Nigro said Colton Sievers’ case flew under the radar.

It was a straight possession case. Not delivery. Not high-profile.

“It doesn’t seem like a big case, but it’s a big deal for our client,” Nigro said last week. “And it’s a big deal for Fourth Amendment scholars across the country.”

That’s because the Nebraska Supreme Court decision in State v. Sievers said law enforcement officers in Lincoln could stop him as he drove a pickup near 10th and South streets Feb. 26, 2016, even though they hadn’t seen him do anything illegal.

Nigro said the Nebraska Supreme Court called it a "suspicionless stop."

"I’d never heard of such a thing,” he said.

Nathan Sohriakoff, a deputy public defender in Nigro’s office, had argued that anything found in the stop shouldn't be allowed to be used against Sievers because the officers lacked probable cause to stop him.

A Lancaster County District Court judge disagreed, and found him guilty. Then the state’s Supreme Court affirmed the conviction, but for different reasons.

Nigro said their argument is simple: “What we’re saying is if the police are going to stop your vehicle, they need to have a reason, and they didn’t have one here.”

The story starts on that late February day in 2016. An informant had led law enforcement to a house in Lincoln, saying it was where he had taken a safe he had stolen in York and had traded the contents — a pistol, several shotguns, jewelry, $30,000 in cash and gold coins — for methamphetamine.

The informant pointed out a black Volkswagen Beetle parked in the back that belonged to the dealer who lived there, according to court records.

The Lincoln/Lancaster County Narcotics Task Force started watching the house, and a Lancaster County deputy sheriff drove an unmarked van through the alley, spotting a white Chevy pickup beside the Volkswagen.

At around 5:20 p.m., as the truck left down the alley and pulled into the street, the deputy asked his supervisor what to do. The supervisor said to stop the pickup to search for anything stolen in the burglary.

So, five blocks away, without seeing any traffic or other legal violations, officers pulled over the pickup.

At a hearing later, they would say the "sole reason for the stop was because his vehicle was parked in the driveway of the house in question."

Sievers was at the wheel.

Officers searched the driver’s side without finding drugs or anything stolen in the York burglary.

Sievers had admitted he had smoked pot at the house, but when they asked if they could search the truck, he said no.

Again, they radioed the supervisor, who told them to search the truck. They arrested Sievers after the search turned up two small plastic bags with just over 3 grams of meth inside a soda can near the center console, and he ended up charged with possession.

As the case wound its way through the courts, judges took up one main question: had officers violated Sievers’ constitutional right to be free from unreasonable searches and seizures?

District Judge Robert Otte said it didn’t, finding that officers had reasonable suspicion to justify the stop given what they knew at the time. He found Sievers guilty and sentenced him to 90 days in the county jail and a year of post-release supervision.

The Nebraska Supreme Court agreed the stop was lawful, but disagreed with the state, which argued officers did have reasonable suspicion to make the stop, and with Otte’s justification.

In its decision May 18, 2018, the court relied on Illinois v. Lidster, a U.S. Supreme Court case about a highway checkpoint used to solicit information from possible witnesses to a fatal hit-and-run.

The judge who wrote the opinion called it a “suspicionless information-seeking stop” that was reasonable based on the circumstances.

Asked to reconsider, they issued a supplemental opinion on Dec. 7, saying: “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.”

After the opinion came down, Nigro said they heard from people from all over the country wanting to help them appeal the case to the U.S. Supreme Court. Orin Kerr, considered one of the foremost Fourth Amendment scholars in the country, asked to write the petition and argue it.

“Reasonable suspicion is the bedrock constitutional requirement for seizing a suspect to investigate suspected criminal activity,” Kerr, a professor at the USC Gould School of Law, wrote in the petition filed in March.

He said the state Supreme Court had been wrong to rely on Lidster, which was a case about stopping people who may have witnessed a crime, not been suspects.

Kerr said the court should grant the petition for cert because lower courts are divided on the scope of stops permitted by their Lidster decision.

The D.C. Circuit and Supreme Courts of Kentucky and Maine have held that it doesn’t permit information-seeking stops. The Seventh Circuit and Nebraska Supreme Court have held that it does.

In a response, Austin Relph, assistant Nebraska Attorney General, argued that cert should be denied "because it is well established that this Court reviews judgments, not opinions.”

The question is if the judgment is correct, not the grounds, he said, taking the position that the officers did have reasonable suspicion for the stop.

Nigro said he knows the odds of getting cert granted are slim. The U.S. Supreme Court takes just a small fraction of the cases people ask for them to review.

But he said he’s hopeful because after the petition was filed in March, the U.S. Supreme Court requested a response from the Nebraska Attorney General’s office after it initially waived its right to file a response.

“That would say they’re at least thinking about it,” Nigro said.

He said they’re fighting to overturn their client’s felony conviction, but also to ensure that other people aren’t stopped by police without reasonable suspicion.

State v. Sievers was distributed for conference on Thursday.

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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.


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