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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

STATE v. ZUNIGA

Cite as 25 Neb. App. 706

State of Nebraska, appellee, v. 

Gilberto Zuniga, appellant.

___ N.W.2d ___

Filed April 3, 2018. No. A-17-226.

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 welldelineated 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.

Nebraska Supreme Court Online Library

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

05/01/2018 01:09 AM CDT
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

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, 

P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.
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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

STATE v. ZUNIGA

Cite as 25 Neb. App. 706

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 suppress statements he made 

to police at the time of the search. For the following reasons, 

we affirm.

BACKGROUND

On August 1, 2016, the State filed an amended information charging Zuniga with delivery or possession with intent 

to deliver methamphetamine, a Class II felony. Prior to trial, 

Zuniga filed a motion to suppress the evidence obtained during a warrantless search of his apartment. He alleged that 

the search did not fall under any recognized exception to the 

warrant requirement because he did not validly consent to the 

search nor was there probable cause to justify the search. In 

his motion to suppress, Zuniga also asked that the statements 

he made to police at the time of the search be suppressed. He 

alleged that the statements resulted from custodial interrogation that occurred before he was advised of his rights pursuant 

to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 

2d 694 (1966).

The district court held a suppression hearing. At the hearing, Zuniga argued to the district court that he did not validly 

consent to a search of his apartment. Zuniga argued that law 

enforcement officers induced his consent by leading him “to 

believe that if he led them inside of the apartment, [and gave] 

them the drugs that nothing would happen.” The State called 

the three law enforcement officers who were present during the 

search of Zuniga’s apartment to testify that Zuniga’s consent to 

search was, in fact, valid.
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

Officer Robert Hallowell testified first. He was assigned 

as an investigator with a narcotics task force. On May 20, 

2015, he and Officers Anthony Gratz and Christopher Monico 

were involved in an investigation at the apartment building 

where Zuniga lived. The officers had received information 

that Zuniga was selling narcotics out of the apartment building; however, they were unsure of the exact apartment Zuniga 

lived in.

At around 8:45 p.m. on May 20, 2015, the officers arrived 

at Zuniga’s apartment building. All three were wearing plain 

clothes, but they each had a lanyard around their neck with 

their badge displayed. Officer Hallowell testified that after they 

arrived at Zuniga’s apartment building, Officer Gratz placed a 

telephone call to Zuniga and told him that his vehicle had been 

involved in “a hit and run.” Officer Gratz asked Zuniga to 

come outside and speak with police about his vehicle. Officer 

Hallowell admitted that the substance of the telephone call 

was a “ruse” in order to get Zuniga to come outside. Officer 

Hallowell also testified that the ruse was successful and that 

Zuniga came outside to check on his vehicle.

When Zuniga approached his vehicle, the officers explained 

why they were actually there. Specifically, Officer Hallowell 

testified that they informed Zuniga that they had information 

he was in possession of a large quantity of methamphetamine 

for the purpose of selling it. In fact, they told Zuniga that 

they knew where in his apartment the drugs were located. The 

officers indicated that they wanted Zuniga to turn the drugs 

over to them. Officer Hallowell testified that he did recall that 

Officer Gratz told Zuniga his goal was to make sure drugs 

were not going to be sold out of Zuniga’s apartment anymore. 

Zuniga did not deny possessing the drugs.

Officer Hallowell testified that he did not participate much 

in the portion of the conversation with Zuniga that occurred 

next to Zuniga’s vehicle. Instead, he stood “a little bit further 

away,” so that Zuniga would not feel surrounded. However, 

Officer Hallowell testified that Zuniga did indicate to the 
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

officers that he wanted to be honest with them. Zuniga also 

told them about a prior incident with police where he felt like 

he had been “set up.” Officer Hallowell described a “back and 

forth” between the officers and Zuniga about whether they 

could enter his apartment. After about 30 minutes, Zuniga led 

officers into his apartment.

Once inside the apartment, Officer Hallowell joined Officer 

Gratz in continuing to speak with Zuniga about there being 

drugs in the apartment. The two officers asked Zuniga two 

or three times whether he would allow them to look inside 

a drawer located next to the sink in his kitchen. Officer 

Hallowell testified that Zuniga continued to talk about his prior 

experience with police and about his desire to be honest. After 

about 10 to 15 minutes of conversation inside the apartment, 

Zuniga agreed to allow officers to look in the kitchen drawer. 

Inside the drawer was a clear plastic baggie which contained a 

white crystalline substance resembling methamphetamine and 

a black digital scale. Subsequent to the search of the drawer, 

Zuniga was arrested. Officer Hallowell testified that up to the 

point in time when Zuniga was formally arrested, he was never 

told that he could not leave, nor did he ever ask to leave or try 

to leave.

At the jail, Officer Hallowell advised Zuniga of his Miranda

rights and then proceeded to ask him about the drugs found 

in his apartment. During this interview, Zuniga revealed to 

Officer Hallowell where he had obtained the methamphetamine and revealed that he had been selling methamphetamine 

for approximately 4 months and had between 5 and 10 regular customers.

Officer Gratz also testified about the events which occurred 

on May 20, 2015. Officer Gratz testified that he placed a telephone call to Zuniga from outside his apartment building “in 

hopes that he would come out so we could have a conversation with him.” During the telephone call, Officer Gratz told 

Zuniga that he was a police officer and that Zuniga’s vehicle 

may have been involved in an accident. At first, Zuniga told 
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

Officer Gratz that his vehicle was equipped with a loud alarm 

and that he would have heard the alarm if his vehicle had been 

struck by another vehicle. Eventually, though, Zuniga agreed 

to come outside.

After Zuniga came outside and approached his vehicle, the 

officers informed him that they were narcotics investigators and 

that they actually wanted to talk with him about his involvement with using and selling drugs from his apartment. Officer 

Gratz testified that once Zuniga knew why the officers were 

actually there, he became nervous and looked down and away 

from the officers. His breathing became rapid. Zuniga began 

talking about his previous involvement with law enforcement. 

He indicated his belief that he had been previously “set up” by 

an informant and law enforcement and was, as a result, arrested 

with a large quantity of narcotics. Officer Gratz testified that 

he asked Zuniga two or three times if they could continue their 

conversation inside his apartment because it was cold outside. 

Zuniga “eventually” said he was “okay with that” and led the 

officers into his apartment. Officer Gratz testified that the conversation with Zuniga outside of his apartment building lasted 

approximately 30 to 45 minutes.

Once inside the apartment, the officers and Zuniga “had 

[a] lengthy period of casual conversation about things other 

than drugs” which lasted approximately 5 or 10 minutes. 

Then, Zuniga sat down in a chair and Officer Gratz asked him 

if he was going to be honest. Officer Gratz testified that he 

told Zuniga that the officers wanted this to be “the last day 

that drugs were being used or sold” in the apartment. Zuniga 

agreed that “things needed to change.” He then transitioned 

into talking about his prior arrest again. Zuniga told Officer 

Gratz that he did not want to go back to prison. Officer Gratz 

testified that he told Zuniga that it was not his goal to send 

Zuniga to prison. Instead, his goal was to stop the selling 

of drugs out of Zuniga’s apartment. Officer Gratz testified 

that he never promised Zuniga he would not go to prison if 

he cooperated.
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

After 15 to 20 minutes of conversation inside the apartment, 

Officer Gratz asked Zuniga if he could look in two kitchen 

drawers where he believed the drugs were located. Officer 

Gratz testified that after a lengthy pause, Zuniga consented 

to officers’ looking in the drawers. Upon searching one of 

the drawers, officers found a baggie containing what Officer 

Gratz believed to be methamphetamine and a digital scale. 

Subsequent to the search of the drawer, Zuniga was arrested. 

Officer Gratz testified that about 45 minutes passed between 

the officers’ entering Zuniga’s apartment and placing him 

under arrest.

Officer Monico testified similarly about the events of May 

20, 2015. Officer Monico testified that when Zuniga came 

outside to inspect his vehicle, the officers contacted him and 

identified themselves as officers with the narcotics task force. 

They told Zuniga they wanted to talk to him about him selling 

methamphetamine from his apartment. Officer Monico testified 

that once officers revealed the actual reason they were contacting Zuniga, his “level of nervousness was visibly apparent and 

rose.” Officer Monico stated, “I remember specifically he put 

a hand up on his car and leaned over on it and hung his head 

and began staring at the ground.” Zuniga then told the officers 

about a prior situation in which he had been arrested on drug 

charges. Specifically, Zuniga felt he had been “wronged” on 

this previous occasion when he had let law enforcement into 

his home and they began searching everywhere. Zuniga told 

Officers Hallowell, Gratz, and Monico that he wanted to be 

honest with them, but he was afraid he would go to prison. 

Officer Monico testified that Zuniga indicated that he did have 

drugs in his apartment, but he was “hesitant to say exactly 

how much.”

Officer Monico testified that he and the other officers asked 

Zuniga multiple times if they could go inside his apartment 

to continue their conversation because it was cold outside. 

Eventually, after “[a]t least a half hour,” Zuniga agreed to let 

the officers inside. He escorted the officers to the apartment 
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

door, opened the door, and allowed the officers to follow 

him inside.

Once inside the apartment, Officer Monico overheard Officer 

Gratz tell Zuniga that he believed the methamphetamine was in 

a particular drawer in the kitchen. Officer Monico also overheard Zuniga express concern and fear about going to prison. 

Officer Gratz responded that sending Zuniga to prison was not 

his goal. Sometime after this exchange, Zuniga gave officers 

permission to search the kitchen drawer. Inside the drawer 

was a baggie with what Officer Monico believed to be methamphetamine and a digital scale. Subsequent to the search of 

the drawer, Zuniga was placed under arrest. Officer Monico 

testified that officers spent a total of approximately 45 to 50 

minutes inside Zuniga’s apartment.

We note that Zuniga did not testify at the suppression hearing, nor did he present any other evidence.

In a written order, the district court denied Zuniga’s motion 

to suppress evidence and motion to suppress statements. 

Regarding the motion to suppress evidence, the court stated, 

“Having considered the totality of the circumstances . . . the 

court concludes [Zuniga’s] consent to search was given freely, 

intelligently, and voluntarily.” In coming to this conclusion, the 

district court made the following factual findings:

In this case, [Zuniga’s] age is not readily apparent from 

the record, but he physically appears older than 30 years 

of age. There is no evidence [Zuniga] suffers from any 

mental impairment. There is no evidence he was under 

the influence of drugs or alcohol during his discussion 

with Investigators. [Zuniga] was not informed of his 

Miranda rights prior to his consent to search. [Zuniga] 

has had prior involvement with law enforcement and 

the criminal justice system. [Zuniga] was outside with 

investigators for 30-45 minutes after which he consented 

to Investigators entering his apartment. Investigators 

were then inside the apartment for 10-20 minutes before 

[Zuniga] gave consent to search. The request for consent 
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

was made 2-3 times before it was given. There were 

no threats, physical intimidation or punishment used to 

obtain consent. No promises were made by Investigators 

but statements were made that it was not the goal to arrest 

[Zuniga]. Consent was given inside [Zuniga’s] apartment in “familiar surroundings”. At no time during the 

discussions did [Zuniga] ask to leave nor did he ask 

Investigators to leave. [Zuniga] was not told he could not 

leave, and [he] did not ask for counsel.

Regarding the motion to suppress statements, the court 

found that Zuniga was not in custody at the time of the search 

of his apartment. As such, law enforcement was not required to 

inform him of his Miranda rights.

The matter proceeded to a stipulated bench trial. The State 

introduced an exhibit which contained police reports, property reports of the items seized during the search, and a 

laboratory report showing that the substance seized from the 

drawer in Zuniga’s kitchen tested positive for methamphetamine. Zuniga objected to the exhibit based on the arguments 

raised in his motion to suppress, and the court overruled the 

objection. Zuniga then introduced into evidence various exhibits, including the deposition testimony of Officers Hallowell, 

Gratz, and Monico. The district court found Zuniga guilty 

of delivery or possession with intent to deliver methamphetamine. Subsequently, the court sentenced Zuniga to 8 to 12 

years’ imprisonment.

Zuniga appeals.

ASSIGNMENTS OF ERROR

Zuniga asserts that the district court erred in overruling his 

motion to suppress the evidence obtained during the search 

of his apartment and his motion to suppress the statements he 

made to police at the time of the search.

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, 
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Cite as 25 Neb. App. 706

we apply a two-part standard of review. State v. Wells, 290 

Neb. 186, 859 N.W.2d 316 (2015). Regarding historical facts, 

we review the trial court’s findings for clear error. Id. But 

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

the trial court’s determination. Id.

[2] 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), we apply a twopart standard of review. State v. DeJong, 287 Neb. 864, 845 

N.W.2d 858 (2014). Regarding historical facts, we review the 

trial court’s findings for clear error. Id. Whether those facts 

meet constitutional standards, however, is a question of law, 

which we review independently of the trial court’s determination. Id.

ANALYSIS

Motion to Suppress Evidence.

Zuniga maintains that it was error to overrule his motion to 

suppress evidence obtained during the warrantless search of 

his apartment. He argues that he did not freely and voluntarily 

consent to officers’ looking inside his kitchen drawer. Rather, 

Zuniga contends that his “consent was the result of coercion, 

and based upon lies by police.” Brief for appellant at 9. He 

asserts that the officers lied to him in order to get him to come 

outside of his apartment and lied to him again when they told 

him he would not go to prison if he cooperated and turned 

over the drugs.

[3,4] 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. State v. Tucker, 262 Neb. 940, 636 N.W.2d 853 

(2001). The warrantless search exceptions recognized by 

the Nebraska Supreme Court include: (1) searches undertaken with consent, (2) searches under exigent circumstances, 
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STATE v. ZUNIGA

Cite as 25 Neb. App. 706

(3) inventory searches, (4) searches of evidence in plain view, 

and (5) searches incident to a valid arrest. Wells, supra.

[5-7] 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. Tucker, supra. Consent must be 

given voluntarily and not as the result of duress or coercion, 

whether express, implied, physical, or psychological. Id. 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. 

See State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990). 

Mere submission to authority is insufficient to establish consent to search. Tucker, supra. 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. State v. Ready, 252 Neb. 816, 565 

N.W.2d 728 (1997). The burden is on the State to prove that 

consent to search was voluntarily given. Prahin, supra.

Based on the evidence presented at the suppression hearing, 

the district court’s finding that Zuniga’s consent to search the 

drawer was given freely, intelligently, and voluntarily was not 

clearly erroneous. As such, we affirm the denial of Zuniga’s 

motion to suppress the evidence found in the drawer.

While we agree with Zuniga’s general assertion that the 

police used deception in order to get him to come outside of 

his apartment, we do not find that such deception invalidated 

Zuniga’s subsequent consent to search the kitchen drawer. The 

Nebraska Supreme Court has held that police deception which 

is not coercive in nature will not invalidate an individual’s 

consent to search if the record otherwise shows the consent 

was voluntary. State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 

469 (2009).

Officer Hallowell admitted during his testimony that he 

and Officers Gratz and Monico used a ruse in order to get 

Zuniga to come outside of his apartment building so they 

could speak with him. However, once Zuniga was outside, 
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Cite as 25 Neb. App. 706

the officers immediately told him of the real reason they 

were there. They informed Zuniga that they had information 

he was using and selling drugs out of his apartment and that 

they wanted him to turn the drugs over to them. After the officers revealed their deception to Zuniga, he did not tell them 

to leave nor did he ever indicate he did not want to talk to 

them. In fact, he told the officers that he wanted to be honest 

with them about the drugs. And, after approximately 30 to 45 

minutes of conversation with the officers outside of Zuniga’s 

apartment building, he agreed to allow the officers inside of 

his apartment. Ultimately, the evidence presented at the suppression hearing reveals that the initial deception used by the 

officers was quickly corrected upon the officers’ contacting 

Zuniga near his vehicle. Accordingly, we do not find that this 

deception was coercive in nature or that it invalidated either 

Zuniga’s consent to enter his apartment or his ultimate consent to search his kitchen drawer.

We do not agree with Zuniga’s assertion that the police 

deceived him again by telling him he would not be arrested 

if he cooperated and turned over the drugs in his apartment. 

In fact, in its order, the district court found that Officer Gratz 

had specifically testified that he did not promise Zuniga that 

he would not go to prison if he cooperated. The district court 

found this testimony to be credible, and we recognize that the 

district court was the finder of fact and take into consideration 

that it observed the witnesses. See Ready, supra. We do find, 

as did the district court, that Officer Gratz indicated to Zuniga 

that it was not his goal to arrest him, but that it was his goal 

to remove the drugs from the apartment. This statement comes 

close to being a misrepresentation or a promise not to arrest. 

However, in this case, in light of the other factors surrounding Zuniga’s consent to search the drawer, we do not find that 

Officer Gratz’ statement was enough to cause Zuniga’s will to 

be overborne or to invalidate the consent.

Of particular importance in our analysis of the voluntariness of Zuniga’s consent is his prior experience with law 
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enforcement. Zuniga repeatedly told the officers involved in 

this case that he had been previously arrested as a result of 

his possession of a large quantity of drugs. He informed the 

officers that he felt he had been treated unfairly at the time 

of this previous arrest, in part because he felt police had 

searched his home without his full consent. Given Zuniga’s 

past experience, he clearly understood the effect of his giving consent to search the kitchen drawer. In addition, he 

understood the effect of his being in possession of drugs. 

Moreover, there was no evidence presented at the suppression 

hearing that Zuniga’s interactions with the officers included 

threats, physical intimidation, or punishment. According to 

the officers’ testimony, one officer typically stayed away from 

the immediate vicinity of the conversation, whether inside 

the apartment or outside in the parking lot, so as not to surround Zuniga. The evidence reveals that the officers had a 

calm and professional conversation with Zuniga about his use 

and selling of drugs from his apartment. During the interaction, which lasted approximately an hour or less, Zuniga 

never asked the officers to leave, never tried to leave himself, 

and never indicated that he no longer wanted to speak with 

the officers.

Given the totality of the circumstances present in this case, 

the district court’s finding that Zuniga’s consent to search the 

drawer was given freely, intelligently, and voluntarily was not 

clearly erroneous. However, we note that under a different set 

of facts, Officer Gratz’ statement that it was not his goal to 

arrest or imprison someone could lead to a different result. We 

leave that determination for another case.

Motion to Suppress Statements.

Zuniga argues that the district court erred in overruling his 

motion to suppress the statements he made to police before 

and during the search of the drawer. He asserts that the statements he made were the result of a custodial interrogation and 

that he was not, at that time, advised of his rights pursuant to 
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Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 

2d 694 (1966).

[8-11] Miranda, supra, 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. 

State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007). 

Miranda protections apply only when a person is both in custody and subject to interrogation. State v. Juranek, 287 Neb. 

846, 844 N.W.2d 791 (2014). A person is in custody for purposes of Miranda when there is a formal arrest or a restraint 

on one’s freedom of movement to the degree associated with 

such an arrest. State v. Landis, 281 Neb. 139, 794 N.W.2d 151 

(2011). Two inquiries are essential to this determination: (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. State v. Rogers, 277 Neb. 37, 

760 N.W.2d 35 (2009).

The Nebraska Supreme Court, quoting U.S. v. Axsom, 289 

F.3d 496 (8th Cir. 2002), has applied “‘six common indicia of 

custody which tend either to mitigate or aggravate the atmosphere of custodial interrogation.’” State v. Mata, 266 Neb. 

668, 682, 668 N.W.2d 448, 466 (2003), abrogated on other 

grounds, Rogers, supra. Those indicia are as follows: (1) 

whether the suspect was informed at the time of questioning 

that the questioning was voluntary, that the suspect was free 

to leave or request the officers to do so, or that the suspect 

was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; 

(3) whether the suspect initiated contact with authorities or 

voluntarily acquiesced to official requests to respond to questions; (4) whether strong-arm tactics or deceptive stratagems 

were used during questioning; (5) whether the atmosphere of 

the questioning was police dominated; and (6) whether the 
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suspect was placed under arrest at the termination of the proceeding. See id.

The Nebraska Supreme Court has also identified other circumstances relevant to the custody inquiry: (1) the location 

of the interrogation and whether it was a place where the 

defendant would normally feel free to leave; (2) whether the 

contact with the police was initiated by them or by the person 

interrogated, and, if by the police, whether the defendant voluntarily agreed to the interview; (3) whether the defendant was 

told he or she was free to terminate the interview and leave at 

any time; (4) whether there were restrictions on the defendant’s 

freedom of movement during the interrogation; (5) whether 

neutral parties were present at any time during the interrogation; (6) the duration of the interrogation; (7) whether the 

police verbally dominated the questioning, were aggressive, 

were confrontational, were accusatory, threatened the defendant, or used other interrogation techniques to pressure the suspect; and (8) whether the police manifested to the defendant 

a belief that the defendant was culpable and that they had the 

evidence to prove it. Rogers, supra.

Upon our review, we conclude that the district court’s 

finding that Zuniga was not in custody at the time he made 

the statements was not clearly erroneous. We recognize that 

some of the circumstances surrounding the making of the 

statements could tend to support a finding that Zuniga was in 

custody. For example, contact with Zuniga was initiated by 

the officers and Zuniga was never told he was free to terminate the interaction with the officers. In addition, the officers 

clearly informed Zuniga that they knew he was in possession 

of drugs and, in fact, knew where in his apartment he kept 

those drugs. Zuniga was arrested after the drugs were located 

by the officers.

However, the evidence which supports the district court’s 

finding overcomes the foregoing factors. Zuniga was first 

located in the parking lot of his apartment building and then 

was in his own apartment. He was not at the police station or 
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Nebraska Court of Appeals Advance Sheets

25 Nebraska Appellate Reports

STATE v. ZUNIGA

Cite as 25 Neb. App. 706

in an unfamiliar environment. The officers did not physically 

restrain Zuniga or in any way impede his movement. There is 

no indication that Zuniga was not free to ask the officers to 

leave and terminate the interview. There was no evidence that 

the officers used threats, physical intimidation, or punishment 

to coerce Zuniga into speaking with them. As we stated above, 

the evidence demonstrated that the interaction between Zuniga 

and the officers was consensual and that Zuniga was cooperative. Zuniga spoke with officers freely and never denied his 

possession of drugs. There was no intensive or high pressure 

interrogation of Zuniga. In fact, Officer Gratz testified that 

once Zuniga and the officers entered Zuniga’s apartment, they 

all engaged in a “casual conversation” about things other than 

drugs. According to the evidence, more than one such interlude 

occurred during the course of the interview. Finally, we must 

reiterate that the evidence was clear that Zuniga was not a novice in dealing with law enforcement and repeatedly expressed 

a level of distrust regarding their intentions. Nonetheless, he 

ultimately agreed to talk with them.

In light of all the surrounding circumstances, we conclude 

that the district court’s finding that Zuniga was not in custody 

is not clearly erroneous.

CONCLUSION

For the reasons stated above, we affirm the decision of the 

district court to overrule both Zuniga’s motion to suppress 

evidence and motion to suppress statements. We, therefore, 

affirm Zuniga’s conviction.

Affirmed.