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State v. Schriner

Supreme Court of Nebraska

June 28, 2019

State of Nebraska, appellee,
v.
Clint W. Schriner, 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 or the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602');">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 trigger or violate Fourth Amendment or Fifth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Constitutional Law: Search and Seizure: Appeal and Error. When reviewing whether a consent to search was voluntary, as to the historical facts or circumstances leading up to a consent to search, an appellate court reviews the trial court's findings for clear error. However, whether those facts or circumstances constituted a voluntary consent to search, satisfying the Fourth Amendment, is a question of law, which an appellate court reviews independently of the trial court. And where the facts are largely undisputed, the ultimate question is an issue of law.

         3. Police Officers and Sheriffs. There are three tiers of police encounters under Nebraska law.

         4. Constitutional Law: Police Officers and Sheriffs: Search and Seizure. The first tier of police-citizen encounters involves no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation of the citizen is elicited through noncoercive questioning. This type of contact does not rise to the level of a seizure and therefore is outside the realm of Fourth Amendment protection.

         5. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Investigative Stops: Search and Seizure: Words and Phrases. The [303 Neb. 477] second category of police-citizen encounters, the investigatory stop, as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning. This type of encounter is considered a "seizure" sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive character requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime.

         6. Constitutional Law: Criminal Law: Police Officers and Sheriffs: Arrests: Search and Seizure: Probable Cause. The third type of police-citizen encounters, arrests, is characterized by highly intrusive or lengthy search or detention. The Fourth Amendment requires that an arrest be justified by probable cause to believe that a person has committed or is committing a crime.

         7. Constitutional Law: Search and Seizure. A seizure in the Fourth Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave.

         8. __:__. In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen's person, or the use of language or tone of voice indicating the compliance with the officer's request might be compelled.

         9. Constitutional Law: Miranda Rights. Miranda warnings are required only where there has been such a restriction on one's freedom as to render one "in custody."

         10. Arrests: Words and Phrases. Being in custody does not require an arrest, but refers to situations where a reasonable person in the defendant's situation would not have felt free to leave and, thus, would feel the restraint on freedom of movement of the degree associated with a formal arrest.

         11. Constitutional Law: Miranda Rights: Self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602');">86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to secure the privilege against self-incrimination.

         12. Miranda Rights: Police Officers and Sheriffs: Words and Phrases. For purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602');">86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), interrogation refers not only to express questioning, but also to any words or actions on the part of the police that the police [303 Neb. 478] should know are reasonably likely to elicit an incriminating response from the suspect.

         13. Miranda Rights: Evidence. Statements made in a conversation initiated by the accused or spontaneously volunteered by the accused are not the result of interrogation and are admissible.

         14. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject to a few established and well-delineated exceptions.

         15. Warrantless Searches. One well-recognized exception to the warrant requirement is a search undertaken with consent.

         16. 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 product of a will overborne. Consent must be given voluntarily and not as the result of duress or coercion, whether express, implied, physical, or psychological.

         17. Constitutional Law: Search and Seizure. The determination of whether the facts and circumstances constitute a voluntary consent to a search, satisfying the Fourth Amendment, is a question of law.

         18. Search and Seizure. Whether consent to a search was voluntary is to be determined from the totality of the circumstances surrounding the giving of consent.

         19. Police Officers and Sheriffs: Search Warrants: Search and Seizure. A statement of a law enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute coercion.

          Appeal from the District Court for Richardson County: Julie D. Smith, Judge.

          Steven J. Mercure, of Nestor & Mercure, for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Freudenberg, J.

         NATURE OF CASE

         Clint W. Schriner was charged with and convicted of manufacturing a controlled substance (marijuana) within 1, 000 feet [303 Neb. 479] of a school under Neb. Rev. Stat. § 28-416 (Reissue 2016). a Class II felony, and possession of a controlled substance (methamphetamine) under § 28-416, a Class IV felony. The district court sentenced Schriner to 1 to 5 years' imprisonment and 2 to 2 years' imprisonment respectively, to be served consecutively. Schriner appeals his convictions, solely asserting that the lower court erred in denying his motion to suppress based upon alleged violations of his Fourth Amendment and Fifth Amendment rights during his encounter with law enforcement.

         BACKGROUND

         Arrest

         In October 2016, Richardson County Deputy Sheriff Jonathan Kirkendall was serving civil papers in Humboldt, Nebraska, when he noticed a strong odor of marijuana. Kirkendall was told by local residents that the smell was coming from a neighboring house.

         After speaking to these residents, Kirkendall confirmed that the odor was emanating from the identified house. He then approached the house and knocked on the door. Schriner answered the door in his pajamas and came outside to his porch area. When doing so, Schriner shut the door behind him and locked himself out of his house.

         When Kirkendall first made contact with Schriner, he observed that there was an overwhelming odor of marijuana being emitted both from within Schriner's residence and from Schriner's person. When asked about the odor, Schriner admitted that he had recently smoked marijuana.

         Kirkendall then asked Schriner to remain on the porch while Kirkendall called the sheriff to inquire as to how to proceed. Schriner asked whether he could go inside to get dressed, to which Kirkendall replied," 'Not right now, Sir.'" Schriner then started toward the door, and Kirkendall again asked Schriner to stay out of the residence.

         [303 Neb. 480] While on the telephone with the sheriff, Kirkendall asked Schriner for consent to search the house. Schriner refused to give consent. Kirkendall told Schriner that the next step was to "request a search warrant," to which Schriner replied, "'Fine. Do what you gotta do.'" At that point, Schriner again attempted to go back inside the house, but Kirkendall told him that he was not allowed to go back inside the house for fear that Schriner would destroy evidence.

         Schriner, while still standing on his front porch, used his cell phone to call his sister and told her he was being detained by law enforcement. Specifically, Schriner said, "Hey hun, I got ... a cop at my door saying because he smells weed outside . . . I'm like detained outside my house right now. . . . And he's . . . talking to the sheriff right now." Schriner testified that in that moment, he believed he was being detained. However, Kirkendall never told Schriner that he was not free to leave.

         Schriner asked Kirkendall if a search warrant was going to be granted. Kirkendall responded that the sheriff was "going to write one." At that point, Schriner started asking for leniency. He asked Kirkendall whether he would "cut [him] a break if [he] let [him] in" and whether he would "look the other way for 5 minutes, while [he got] rid of something." That "something," per Schriner, was a small amount of methamphetamine that he did not want to get charged with.

         After Schriner disclosed that he had methamphetamine in his residence, Kirkendall discussed with Schriner the possibility of his cooperating on the methamphetamine "aspect of [the situation]." At the same time, Kirkendall again started speaking on the telephone with the sheriff. While Kirkendall was on the telephone, Schriner said that "the neighbors are watching right now" and asked Kirkendall, "Can we go inside the house? Let's just go inside the house. Might as well, you're getting a fucking search warrant."

         [303 Neb. 481] Schriner also said that he wanted to call his sister to inform her that he was probably going to be arrested. To that. Kirkendall replied, "No, that, that's not, that's not what I'm doing." Schriner was surprised by this response and invited Kirkendall into the residence to "talk about it." Kirkendall accepted the invitation to enter the residence.

         Schriner spent approximately 15 minutes trying to get back inside his house. He finally managed to get back inside by removing a windowpane from the back door and manually unlocking it. Upon entering the residence, Schriner led Kirkendall throughout the house, showing him his marijuana grow operation, his various pieces of drug paraphernalia, and the small amount of methamphetamine in his possession. In all, Schriner had approximately 65 marijuana plants, the equipment to grow them, numerous other pieces of drug paraphernalia, and baggies of methamphetamine.

         Kirkendall told Schriner that he was going to arrest him, but before actually doing so, Kirkendall let Schriner change his clothes, smoke a cigarette, make various telephone calls, and say good-bye to his pets. Kirkendall and Schriner then walked outside, where Schriner was handcuffed and placed in the patrol vehicle. Kirkendall and another officer then collected the evidence from the house.

         Throughout his interaction with law enforcement, without being questioned, Schriner made a number of statements regarding his current situation with law enforcement and the drugs in his possession. Kirkendall generally reacted by indicating he had heard the statements. Kirkendall asked a few questions in response to some of Schriner's remarks. Many of the volunteered statements made by Schriner were incriminating. Notably, after being handcuffed and placed in Kirkendall's patrol vehicle, Schriner made a number of incriminating statements including, "I was growing some weed," "They tend ...


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