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STATE v. KHALIL

Cite as 25 Neb. App. 449

State of Nebraska, appellee, v.

Ali E. Khalil, appell

___ N.W.2d ___

Filed January 16, 2018. No. A-17-085.

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, 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. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of 

a vehicle.

3. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs.

Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related in scope to the circumstances 

that justified the traffic stop. This investigation may include asking 

the driver for an operator’s license and registration, requesting that 

the driver sit in the patrol car, and asking the driver about the purpose 

and destination of his or her travel. Also, the officer may run a computer check to determine whether the vehicle involved in the stop has 

been stolen and whether there are any outstanding warrants for any of 

its occupants.

4. ____: ____: ____. An officer’s inquiries into matters unrelated to the 

justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/30/2018 01:11 AM CST
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5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: 

Probable Cause. To expand the scope of a traffic stop and continue to 

detain the motorist, an officer must have a reasonable, articulable suspicion that a person in the vehicle is involved in criminal activity beyond 

that which initially justified the interference.

6. Probable Cause: Words and Phrases. Reasonable suspicion entails 

some minimal level of objective justification for detention, something 

more than an inchoate and unparticularized hunch, but less than the level 

of suspicion required for probable cause.

7. Police Officers and Sheriffs: Probable Cause. Whether a police officer has a reasonable suspicion based on sufficient articulable facts 

depends on the totality of the circumstances.

8. Probable Cause. Reasonable suspicion exists on a case-by-case basis.

9. ____. Factors that would independently be consistent with innocent 

activities may nonetheless amount to reasonable suspicion when considered collectively.

10. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: 

Probable Cause. An officer’s suspicion of criminal activity may reasonably grow over the course of a traffic stop as the circumstances unfold 

and more suspicious facts are uncovered.

11. Investigative Stops: Motor Vehicles: Probable Cause. In determining whether a continued detention of a defendant following a stop for a 

traffic violation is reasonable, a court considers both the length of the 

continued detention and the investigative methods employed.

12. Miranda Rights. The safeguards provided by Miranda v. Arizona, 384 

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play whenever a person in custody is subjected to either express questioning or its 

functional equivalent.

13. ____. Miranda warnings are required only when there has been such a 

restriction on one’s freedom as to render one in custody.

14. Miranda Rights: Arrests: Words and Phrases. A person is in custody 

for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 (1966), when there is a formal arrest or a restraint on his or 

her freedom of movement to the degree associated with such an arrest.

15. Miranda Rights: Investigative Stops: Motor Vehicles. Persons temporarily detained pursuant to an investigatory traffic stop are not in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966).

16. Miranda Rights: Police Officers and Sheriffs: Investigative Stops: 

Motor Vehicles. When a person is detained pursuant to a traffic stop, 

there must be some further action or treatment by the police to render 

the driver in custody and entitled to Miranda warnings.
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17. Miranda Rights: Self-Incrimination: Right to Counsel. The Miranda

safeguards come into play whenever a person in custody is subjected 

to either express questioning or its functional equivalent, and the safeguards include advisements of the right to remain silent and the right to 

have an attorney present at questioning.

18. ____: ____: ____. Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), if the suspect in custody indicates that 

he or she wishes to remain silent or that he or she wants an attorney, the 

interrogation must cease.

19. Miranda Rights: Right to Counsel. In order to require cessation of 

custodial interrogation, the subject’s invocation of the right to counsel 

must be unambiguous and unequivocal.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affi

Steven B. Muslin, of Muslin & Sandberg, and Thomas J. 

Olsen, of Olsen Law Offices, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Pirtle, Riedmann, and Arterburn, J

Riedmann, Jud

INTRODUCTION

Ali E. Khalil was convicted of delivery or possession with 

intent to deliver marijuana following the discovery of 128 

pounds of marijuana in his vehicle during a traffic stop. On 

appeal, he claims that his motion to suppress should have been 

granted because of violations of his rights under the Fourth 

and Fifth Amendments. We find no merit to the arguments 

raised on appeal and therefore affirm.

BACKGROUND

The events giving rise to this case, and the issues raised on 

appeal, are substantially intermingled with those in a companion case filed today in State v. Abu-Serieh, post p. 462, ___ 

N.W.2d ___ (2018). Khalil and Issa Abu-Serieh were driving 
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separate rental vehicles but traveling together on Interstate 80 

when the relevant events occurred.

On January 25, 2015, Lancaster County Deputy Sheriff 

Jason Henkel was patrolling Interstate 80 near mile marker 

397 when he observed a Nissan Altima that was following a 

semi-truck too closely. He observed another vehicle, a Ford 

Edge, following the Nissan too closely and believed the Nissan 

and Ford were traveling together based on “their driving habits.” Henkel called for Deputy Sheriff Jason Mayo to assist 

him. Henkel performed a traffic stop on the Nissan, and Mayo 

stopped the Ford.

The driver of the Nissan, later identified as Khalil, provided his driver’s license and a vehicle rental agreement when 

requested. While at the window of the Nissan, Henkel noticed 

a faint odor of what he believed to be raw marijuana, but he 

could not confirm it at that point due to strong winds. Henkel 

asked Khalil to accompany him to Henkel’s patrol car in order 

to talk with him while Henkel prepared the warning ticket for 

following too closely. Khalil did so and sat in the front passenger seat. He was not in handcuffs and was not under arrest, but 

was detained for the traffic violation.

Henkel made general conversation with Khalil while preparing the warning ticket by asking questions about his travels. 

Khalil said that he had attended a convention in Salt Lake 

City, Utah, for the trucking company he owns and was trying to obtain additional business. Khalil said that he lives in 

the Chicago, Illinois, area. Henkel asked if Khalil was traveling with the driver of the Ford, and Khalil said yes, the 

driver of the Ford, Abu-Serieh, was his friend. Throughout 

the time Henkel and Khalil sat in Henkel’s patrol car, Henkel 

exchanged communication with Mayo via the mobile data 

terminal in each of their patrol cars. Mayo told Henkel that 

Abu-Serieh said he was not traveling with Khalil. Khalil 

and Abu-Serieh provided additional inconsistent information, with Abu-Serieh reporting that he had attended a bachelor party in California and was returning home to Chicago, 
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while Khalil stated that Abu-Serieh lived in the Salt Lake 

City area.

After issuing the warning ticket to Khalil, Henkel asked if 

there were any guns, bombs, cocaine, heroin, or marijuana in 

the vehicle, and Khalil said no. Henkel then asked Khalil for 

permission to search the vehicle because he suspected that 

there was criminal activity afoot, and Khalil responded that 

“he wanted to be on his way.” Henkel was suspicious based 

on several factors: the odor of raw marijuana coming from the 

vehicle, which he was unable to confirm; the business attire 

hanging in the window of the Nissan and a suitcase in the 

back seat; the vehicle had a “lived-in look,” and it appeared 

that Khalil had slept in the vehicle; Khalil exhibited signs of 

nervousness, including shaking and trembling hands, labored 

breathing, and “a pulse [visible] in his stomach”; and the 

numerous air fresheners in the front and back of the Nissan. In 

addition, Khalil was driving a rental vehicle and traveling with 

a companion who drove a separate vehicle, but both vehicles 

were rented in Khalil’s name, and when questioned, Khalil and 

the other driver provided inconsistent information.

Less than 3 minutes after issuing the warning ticket to 

Khalil, Henkel deployed his drug dog, which was in his patrol 

car, and the canine alerted and indicated to the odor of narcotics coming from the Nissan. Upon searching the vehicle, 

Henkel discovered 128 pounds of marijuana in the trunk. 

While at the scene of the traffic stop, Henkel handcuffed Khalil 

and read him his Miranda warnings. Henkel asked Khalil if he 

would be interested in participating in a controlled delivery of 

the marijuana, and Khalil indicated that “he’d have to talk to 

his attorney first.” Henkel asked whether Khalil was requesting 

an attorney at that point, and Khalil responded that it “depends 

on the questions you ask me.” Throughout further questioning 

later at the jail, Khalil admitted that he was receiving $7,000 

to deliver the marijuana.

Khalil was ultimately charged with delivery or possession with intent to deliver marijuana. Prior to trial, he filed a 
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motion to suppress the statements he made and the results of 

the search of the Nissan. A suppression hearing was held, and 

the testimony revealed the information detailed above. The 

district court subsequently announced its findings from the 

bench. The court determined that there was probable cause for 

the traffic stop based on the traffic violation of following too 

closely. The court additionally found that Henkel had reasonable suspicion to detain Khalil in order to conduct a canine 

sniff and had probable cause to search the Nissan based on the 

alert and indication of the canine. Finally, the court concluded 

that Khalil did not unequivocally invoke his right to counsel 

and that therefore, his statements were admissible. The motion 

to suppress was therefore denied.

Thereafter, a stipulated bench trial was held. The evidence 

presented consisted of the video recordings of the traffic stops 

from Henkel’s patrol car and Mayo’s patrol car, law enforcement reports, and the transcript of the suppression hearing. 

The court ultimately found Khalil guilty of delivery or with 

possession with intent to deliver marijuana. He was sentenced to 18 to 36 months’ incarceration. He now appeals to 

this court.

ASSIGNMENT OF ERROR

Khalil assigns, summarized, that the district court erred in 

denying his motion to suppress.

STANDARD OF REVIEW

[1] 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, 16 L. Ed. 

2d 694 (1966), we apply a two-part standard of review. See, 

State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012); State 

v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011). Regarding 

historical facts, we review the trial court’s findings for clear 

error. State v. Bauldwin, supra; State v. Nelson, supra. But 

whether those facts trigger or violate Fourth Amendment or 
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Fifth Amendment protections is a question of law that we 

review independently of the trial court’s determination. State v. 

Bauldwin, supra; State v. Nelson, supra.

ANALYSIS

Khalil argues that the district court erred in denying his 

motion to suppress because of perceived violations of his 

rights under the Fourth and Fifth Amendments.

Fourth Amendment.

Khalil first argues that his motion to suppress should have 

been granted because his Fourth Amendment rights were violated when Henkel impermissibly extended the scope of the 

traffic stop beyond what was reasonable to issue the warning 

for the traffic violation.

[2] At the outset, we note that in his brief, despite several 

arguments to the contrary, Khalil acknowledges that the “evidence is unrebutted that the traffic stop was properly initiated 

by Deputy Henkel.” Brief for appellant at 27. We agree. A 

traffic violation, no matter how minor, creates probable cause 

to stop the driver of a vehicle. State v. Nelson, supra. Here, 

Henkel explained how he determined that Khalil’s vehicle was 

following another vehicle too closely in violation of Neb. Rev. 

Stat. § 60-6,140(1) (Reissue 2010). The fact that Khalil committed a traffic violation is not challenged on appeal, and thus, 

the initial stop of the Nissan was justified.

Khalil claims that any questions Henkel posed to him during the stop before the warning ticket was issued that were 

unrelated to the traffic violation “create[d] an unwarranted 

and nonconsensual expansion of the seizure from a routine 

traffic stop to a drug investigation.” Brief for appellant at 31. 

We disagree.

[3,4] Once a vehicle is lawfully stopped, a law enforcement officer may conduct an investigation reasonably related 

in scope to the circumstances that justified the traffic stop. 

State v. Nelson, supra. This investigation may include asking the driver for an operator’s license and registration, 
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requesting that the driver sit in the patrol car, and asking the 

driver about the purpose and destination of his or her travel. 

Id. Also, the officer may run a computer check to determine 

whether the vehicle involved in the stop has been stolen and 

whether there are any outstanding warrants for any of its 

occupants. Id. An officer’s inquiries into matters unrelated to 

the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as 

those inquiries do not measurably extend the duration of the 

stop. Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 

L. Ed. 2d 694 (2009).

In the present case, the amount of time that elapsed between 

the time Henkel initiated the traffic stop of the Nissan until the 

time he issued the warning ticket was a total of approximately 

10 minutes. While Khalil was seated in the passenger seat of 

the patrol car, Henkel asked him a variety of questions, such as 

where he had been, where he lived, and where he was going. 

During this time, Henkel was also communicating with Mayo, 

and the deputies were exchanging the information provided to 

them by Khalil and Abu-Serieh, discovering discrepancies in 

their responses. Khalil references this communication between 

deputies in his brief, but he provides no authority to support 

a finding that doing so was improper or unconstitutional, particularly when the exchange of communication did not extend 

the traffic stop beyond the length of time necessary to issue 

the warning ticket. Given the total length of time it took for 

Henkel to process Khalil’s information and issue the warning 

ticket, approximately 10 minutes, we conclude that any questioning did not measurably extend the duration of the stop and 

was therefore permissible.

Khalil also argues that Henkel impermissibly extended the 

length of the traffic stop in order to conduct a canine sniff 

of the vehicle after issuing the warning ticket to him. We do 

not agree.

[5-10] To expand the scope of a traffic stop and continue 

to detain the motorist, an officer must have a reasonable, 
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articulable suspicion that a person in the vehicle is involved 

in criminal activity beyond that which initially justified the 

interference. See State v. Nelson, 282 Neb. 767, 807 N.W.2d 

769 (2011). Reasonable suspicion entails some minimal level 

of objective justification for detention, something more than 

an inchoate and unparticularized hunch, but less than the 

level of suspicion required for probable cause. Id. Whether a 

police officer has a reasonable suspicion based on sufficient 

articulable facts depends on the totality of the circumstances. 

Id. Reasonable suspicion exists on a case-by-case basis. Id.

Factors that would independently be consistent with innocent 

activities may nonetheless amount to reasonable suspicion 

when considered collectively. Id. An officer’s suspicion of 

criminal activity may reasonably grow over the course of a 

traffic stop as the circumstances unfold and more suspicious 

facts are uncovered. U.S. v. Murillo-Salgado, 854 F.3d 407 

(8th Cir. 2017).

In this case, Henkel suspected that there was criminal activity afoot based on several factors: the odor of raw marijuana 

coming from the vehicle, which he was unable to confirm; 

the business attire hanging in the window of the vehicle and 

a suitcase in the back seat; the “lived-in look” of the vehicle; 

Khalil’s nervousness; and the numerous air fresheners in the 

vehicle. In addition, Khalil was driving a rental vehicle and 

traveling with a companion who drove a separate vehicle, 

and when questioned, Khalil and the other driver provided 

inconsistent information, with the other driver denying that he 

was even traveling with Khalil. Given the totality of the circumstances, Henkel had a reasonable suspicion to expand the 

scope of the traffic stop and continue to detain Khalil in order 

to perform a canine sniff of the vehicle.

[11] Khalil takes issue with Henkel’s testimony that “as 

an interdiction officer, it was always his intention to deploy 

his dog.” Brief for appellant at 33. Regardless of Henkel’s 

thought process or motivation for doing so, we find that he 

had reasonable, articulable suspicion supporting extending 
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the stop in order to conduct a canine sniff of the vehicle. As 

such, this argument lacks merit. Having determined that reasonable suspicion existed to support continued detention, the 

next question is whether the detention was reasonable in the 

context of an investigatory stop. See State v. Voichahoske, 271 

Neb. 64, 709 N.W.2d 659 (2006). We consider both the length 

of the continued detention and the investigative methods 

employed. Id.

Henkel had the canine with him in his vehicle, and the 

amount of time that elapsed from the time he issued the 

warning to Khalil until the time the canine was deployed 

was less than 3 minutes. In State v. Voichahoske, supra, the 

Supreme Court found that a 15-minute period of time from 

the conclusion of the traffic stop until arrival of a drug dog 

was not unreasonable. And the Supreme Court has previously 

determined that nearly an hour delay between the request of a 

canine unit and its arrival was not unreasonable. See State v. 

Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). The record 

in the instant case shows no lack of diligence on Henkel’s 

part nor any unreasonable delay. And because a canine sniff 

is not a search under the Fourth Amendment, using the drug 

dog during a lawful detention did not violate any constitutionally protected right. See State v. Voichahoske, supra. 

Accordingly, the length and method of detention in the present 

case were reasonable.

We note that Khalil relies upon Rodriguez v. United States, 

___ U.S. ___, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), 

when arguing that the traffic stop was impermissibly extended. 

Khalil acknowledges, however, that the question in Rodriguez

was whether police may extend “an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct 

a dog sniff.” Brief for appellant at 34. Thus, because we 

found that reasonable suspicion existed to allow Henkel to 

extend the stop, Rodriguez would not change the outcome of 

our decision.
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Finding no merit to any of Khalil’s arguments with respect 

to the Fourth Amendment, we conclude that the district court 

properly denied his motion to suppress on those grounds.

Fifth Amendment.

Khalil argues that Henkel’s question to him of whether he 

had any drugs “created a hazard of incrimination” and that 

he was compelled to answer the question or be penalized for 

asserting his right to refuse to answer. Brief for appellant at 40. 

He therefore concludes that Henkel was required to read him 

his Miranda rights prior to posing the question. Khalil also 

argues that he later invoked his right to counsel, but Henkel 

continued to question him in violation of his Fifth Amendment 

rights. We disagree.

[12-14] We reject Khalil’s argument that Henkel was 

required to read him his Miranda rights because Khalil 

was not in custody. The safeguards provided by Miranda 

v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966), come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Landis, 281 Neb. 139, 794 N.W.2d 151 (2011). 

Miranda warnings are required only when there has been such 

a restriction on one’s freedom as to render one in custody. Id. 

A person is in custody for purposes of Miranda when there is 

a formal arrest or a restraint on his or her freedom of movement to the degree associated with such an arrest. See State v. 

Landis, supra.

[15,16] Persons temporarily detained pursuant to an investigatory traffic stop are not in custody for purposes of Miranda. 

State v. Landis, supra. When a person is detained pursuant to 

a traffic stop, there must be some further action or treatment 

by the police to render the driver in custody and entitled to 

Miranda warnings. Id. In State v. Landis, the Supreme Court 

observed that the defendant’s presence in the trooper’s cruiser 

did not raise the interaction to the extent analogous to an 

arrest, because there was no indication that the trooper used 
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force or threats to get the defendant to enter the cruiser or to 

remain there.

Likewise here, Khalil was temporarily detained pursuant to 

a traffic stop and voluntarily entered Henkel’s patrol car while 

Henkel prepared the warning ticket. Thus, some further action 

or treatment by the deputy that would raise Khalil’s detention 

to an extent analogous to an arrest was required. Because there 

was none, Khalil was not “in custody,” and thus, Miranda

warnings were not required before he could be questioned. 

Having determined that Khalil was not in custody for Miranda

purposes, we need not address whether he was subjected to 

an interrogation during that time. Accordingly, any statements 

he made to Henkel while seated in the patrol car were not 

obtained in violation of his Fifth Amendment rights and were 

admissible. As such, the motion to suppress was properly 

denied on these grounds.

Khalil further asserts that he invoked his right to counsel 

and that Henkel unconstitutionally continued to question him 

after he had done so.

[17,18] The U.S. Supreme Court adopted a set of prophylactic measures to protect suspects from modern custodial 

interrogation techniques. Miranda v. Arizona, supra. See, also, 

State v. DeJong, 287 Neb. 864, 845 N.W.2d 858 (2014). The 

Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional 

equivalent. State v. DeJong, supra. The safeguards include the 

familiar Miranda advisements of the right to remain silent and 

the right to have an attorney present at questioning. Id. If the 

suspect in custody indicates that he or she wishes to remain 

silent or that he or she wants an attorney, the interrogation 

must cease. Id.

[19] In order to require cessation of custodial interrogation, the subject’s invocation of the right to counsel must be 

unambiguous and unequivocal. State v. Goodwin, 278 Neb. 

945, 774 N.W.2d 733 (2009). “Statements such as ‘“[m]aybe 

I should talk to a lawyer”’ or ‘“I probably should have an 
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attorney”’ do not meet this standard.” Id. at 959, 774 N.W.2d 

at 744-45.

In the case at hand, Khalil never unambiguously and 

unequivocally invoked his right to counsel. When discussing 

whether Khalil would be interested in assisting law enforcement by participating in a controlled delivery of marijuana, 

Khalil remarked that “he’d have to talk to his attorney first.” 

Henkel then asked whether Khalil was requesting an attorney 

at that point, and Khalil responded that it “depends on the 

questions you ask me.” We cannot find that this language 

constitutes an unambiguous and unequivocal request for counsel, particularly when Khalil’s reference to speaking with his 

attorney was made in the context of agreeing to participate in 

a controlled delivery rather than discussing specifics about the 

events of this case. Therefore, law enforcement’s continued 

questioning of Khalil did not violate his Fifth Amendment 

rights and the district court did not err in denying the motion 

to suppress.

CONCLUSION

Having found no merit to Khalil’s arguments with respect 

to the Fourth and Fifth Amendments, we find no error in the 

district court’s denial of his motion to suppress. We therefore 

affirm his conviction and sentence.

Affirmed