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State v. Zuniga

Court of Appeals of Nebraska

April 3, 2018

STATE OF NEBRASKA, APPELLEE,
v.
GLLBERTO ZUNIGA, APPELLANT.

          1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Constitutional Law: Confessions: Miranda Rights: Motions to Suppress: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts meet constitutional standards is a question of law, which an appellate court reviews independently of the trial court's determination.

         3. Constitutional Law: Search and Seizure. It is well settled under the Fourth Amendment that warrantless searches and seizures are per se unreasonable, subject to a few specifically established and well-delineated exceptions.

         4. Warrantless Searches. The warrantless search exceptions recognized by the Nebraska Supreme Court include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.

          [25 Neb.App. 707] 5. Constitutional Law: Search and Seizure: Duress. To be effective under the Fourth Amendment, consent to a search must be a free and unconstrained choice and not the result of a will overborne. Consent must be given voluntarily and not as the result of duress or coercion, whether express, implied, physical, or psychological.

         6. Search and Seizure: Duress. In determining whether consent was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.

         7. Constitutional Law: Search and Seizure. The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from the totality of the circumstances.

         8. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prohibits the use of statements stemming from the custodial interrogation of a defendant unless the prosecution demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

         9. Miranda Rights. Miranda protections apply only when a person is both in custody and subject to interrogation.

         10. Miranda Rights: Arrests: Words and Phrases. A person is in custody for purposes of Miranda v. Arizona, 484 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when there is a formal arrest or a restraint on one's freedom of movement to the degree associated with such an arrest.

         11. Miranda Rights. Two inquiries are essential to the determination of whether an individual is in custody for Miranda purposes: (1) an assessment of the circumstances surrounding the interrogation and (2) whether, given those circumstances, a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave.

          Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge. Affirmed.

          Thomas R. Lamb and Hannah E. Carroll-Altman, Senior Certified Law Student, of Anderson, Creager & Wittstruck, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

         [25 Neb.App. 708] Pirtle, Bishop, and Arterburn, Judges.

          Arterburn, Judge.

         INTRODUCTION

         After a bench trial in the district court for Lancaster County. Gilberto Zuniga was convicted of one count of delivery or possession with intent to deliver methamphetamine. On appeal, he challenges the district court's order overruling his motion to suppress evidence obtained during a warrantless search of his apartment and his motion to ...


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