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303 Nebraska Report

STATE v. SCHRINER

Cite as 303 Neb. 476

State of Nebraska, appellee, v.

Clint W. Schriner, appel

___ N.W.2d ___

Filed June 28, 2019. No. S-18-893.

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. 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 

Nebraska Supreme Court Online Library

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

09/18/2019 01:11 AM CDT
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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, 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, 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 
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Cite as 303 Neb. 476

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. Affirme

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, Stac

Papik, and Freudenberg, 

Freudenberg, 

NATURE OF CASE

Clint W. Schriner was charged with and convicted of manufacturing a controlled substance (marijuana) within 1,000 feet 
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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

Arres

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.
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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.”
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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 to 

frown on that,” “It helps my back,” and “You guys can just 

lose that meth; you don’t know how much I appreciate that.”
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Motion to Suppr

Based on the evidence, the State charged Schriner with 

manufacturing a controlled substance (marijuana) within 1,000 

feet of a school under § 28-416, a Class II felony; possession 

of a controlled substance (methamphetamine) under § 28-416, 

a Class IV felony; and possession of drug paraphernalia under 

Neb. Rev. Stat. § 28-441 (Reissue 2016), an infraction.

Prior to trial, Schriner moved to suppress the physical evidence seized from his house as well as any statements made to law enforcement during his interaction with 

Kirkendall. Schriner argued that suppression was warranted 

based on alleged violations of his Fourth Amendment and Fifth 

Amendment rights. Schriner argued that the suppression was 

warranted because (1) he was unlawfully seized, in violation 

of the Fourth Amendment; (2) his statements were improperly 

obtained under Miranda v. Arizona,

1

 in violation of the Fifth 

Amendment; and (3) his consent to the search was coerced, 

based on Kirkendall’s indication that he had a search warrant, 

in violation of the Fourth Amendment.

At the hearing, Kirkendall testified as described above, noting that Schriner was not arrested until after he led Kirkendall 

throughout the house; that he did not give Miranda warnings 

to Schriner during the contact; and that he never told Schriner 

that he had a search warrant or that one would be granted. In 

addition to this testimony, the State offered into evidence a 

1-hour video recording from Kirkendall’s body camera of the 

interaction. The recording was received into evidence without objection.

Schriner testified at the hearing that he felt like he was 

detained early during his interaction with Kirkendall and that 

he allowed Kirkendall inside his residence only because he 

thought a search warrant was being issued.

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

(1966).
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The district court granted in part and overruled in part 

Schriner’s motion to suppress. The district court granted 

a portion of Schriner’s request to suppress his statements 

involving a short exchange after Schriner had been informed 

that he was going to be arrested. Specifically, Kirkendall 

asked Schriner the following questions while Schriner was 

handcuffed and placed in the back of Kirkendall’s patrol 

vehicle: “Alright, what’s this used for?”; “To smoke oil?”; “Is 

there any oil in it?”; and “Do you have any additional oil anywhere else?” The district court concluded that these questions 

by Kirkendall were part of a custodial interrogation without Miranda warnings. Thus, the court sustained Schriner’s 

motion to suppress as to his responses to the specific questions listed above.

The district court overruled the remainder of Schriner’s 

motion because the court concluded that (1) the initial seizure of Schriner was appropriate, (2) Schriner’s other statements were not made during a custodial interrogation, and 

(3) Schriner’s consent to the search of his residence was not 

a result of coercion, intimidation, or any improper promises 

or threats.

Tria

At a bench trial, the State called three witnesses to testify. Kirkendall again testified about his observations during 

his encounter with Schriner on the day of the arrest and that 

Schriner’s house was located approximately 689 feet from 

a nearby school. The State also called an evidence custodian and a forensic scientist to testify about the various substances recovered from Schriner’s house. The footage from 

Kirkendall’s body camera was admitted into evidence over 

Schriner’s objection.

During trial, Schriner repeatedly renewed his objections 

regarding physical evidence and Schriner’s statements during 

his encounter with Kirkendall on the same grounds as presented in his motion to suppress. After repeatedly overruling 
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Schriner’s objections, the district court granted a standing 

objection to preserve the issues for appeal.

During his defense, Schriner asserted an entrapment by 

estoppel claim. He argued that the signs indicating that his residence was located in a school zone were misplaced. Schriner 

also presented evidence that he relied on those signs when 

he purchased his house in 2013 and that he would not have 

bought the house had he known it was located in a drug-free 

zone. Further, Schriner called Schriner’s attorney’s law clerk 

to testify. She testified that there were numerous “Drug Free 

Zone” signs around the school and that Schriner’s house fell 

outside their perimeter. In the same vein, Schriner testified 

that he would not have bought the house had he known it was 

located in a drug-free zone. However, on cross-examination, 

Schriner admitted that he owned and lived in the house at 

issue, he was growing marijuana inside, and he had possessed methamphetamine.

Verdicts and Se

Following trial, the district court rejected Schriner’s entrapment by estoppel defense and found Schriner guilty of both 

the manufacturing charge and the possession charge. The State 

dismissed the paraphernalia charge.

At a subsequent sentencing hearing, the district court sentenced Schriner to 1 to 5 years’ imprisonment on the manufacturing conviction and 2 to 2 years’ imprisonment on the possession of methamphetamine conviction, with those sentences 

to be served consecutively.

ASSIGNMENTS OF ERROR

Schriner assigns that the district court erred by overruling 

his motion to suppress physical evidence and statements used 

against him at trial for the following reasons: (1) Law enforcement unlawfully detained and unreasonably seized Schriner 

and thereby violated his Fourth Amendment rights; (2) law 

enforcement did not read Schriner his Miranda rights after 

he was arrested and thereby violated his Fifth Amendment 
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right against self-incrimination; and (3) Schriner’s consent to 

the search of his home was not freely and voluntarily given 

and was the exploitation of the prior Fourth Amendment 

violation.

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, an appellate court applies a two-part standard of 

review.2 Regarding historical facts, an appellate court reviews 

the trial court’s findings for clear error.3 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.4

[2] Likewise, we apply the same two-part analysis when 

reviewing whether a consent to search was voluntary.5 As to 

the historical facts or circumstances leading up to a consent 

to search, we review the trial court’s findings for clear error.6

However, whether those facts or circumstances constituted a 

voluntary consent to search, satisfying the Fourth Amendment, 

is a question of law, which we review independently of the 

trial court.7 And where the facts are largely undisputed, the 

ultimate question is an issue of law.8

ANALYSIS

The facts of this case are not in dispute. Rather, the central 

issues of the case relate to the constitutionality of Schriner 

2 State v. Khalil, 25 Neb. App. 449, 908 N.W.2d 97 (2018). See, also, State 

v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

3 State v. Khalil, supra note 2.

4 Id.

5 State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).

6 Id.

7 Id.

8 Id.
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and law enforcement’s interaction and the subsequent search 

of Schriner’s residence. Schriner assigns that the district 

court erred by overruling his motion to suppress physical 

evidence and statements used against him at trial for the following reasons: (1) Law enforcement unlawfully detained 

and unreasonably seized Schriner and thereby violated his 

Fourth Amendment rights, (2) law enforcement did not read 

Schriner his Miranda rights after he was arrested and thereby 

violated his Fifth Amendment right against self-incrimination, 

and (3) Schriner’s consent to the search of his home was not 

freely and voluntarily given and was the exploitation of the 

prior Fourth Amendment violation. We disagree and find 

that the district court properly resolved Schriner’s motion 

to suppress.

Challenged Seizure or Dete

First, Schriner argues that his initial encounter with law 

enforcement quickly transformed into a de facto custodial 

arrest and unreasonable seizure when Schriner was “restrained, 

confined[,] and detained” on his front porch.9 In sum, Schriner 

argues that he reasonably believed he was not free to leave during the encounter and that Kirkendall lacked sufficient cause to 

detain him. Accordingly, Schriner contends that the court erred 

in overruling in part his motion to suppress.

The State maintains that law enforcement in this case complied with the Fourth Amendment. The State argues that the 

contact between law enforcement and Schriner “began as a 

tier-one police-citizen encounter and evolved into a tier-three 

police-citizen encounter” upon Schriner’s being taken outside 

and handcuffed by Kirkendall.10 We agree with the State.

[3-6] There are three tiers of police encounters under 

Nebraska law. 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 

9 See brief for appellant at 13.

10 See brief for appellee at 13.
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through noncoercive questioning.11 This type of contact does 

not rise to the level of a seizure and therefore is outside the 

realm of Fourth Amendment protection. The second category, 

the investigatory stop, as defined by the U.S. Supreme Court 

in Terry v. Ohio,

12 is limited to brief, nonintrusive detention during a frisk for weapons or preliminary questioning.13

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.14 The third type of police-citizen encounters, 

arrests, is characterized by highly intrusive or lengthy search 

or detention.15 The Fourth Amendment requires that an arrest 

be justified by probable cause to believe that a person has 

committed or is committing a crime.16 Only the second and 

third tiers of police-citizen encounters are seizures sufficient 

to invoke the protections of the Fourth Amendment to the 

U.S. Constitution.17

[7,8] 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.18 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 

11 State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019).

12 Id.

13 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See, 

also, State v. Shiffermiller, supra note 11.

14 State v. Shiffermiller, supra note 11.

15 Id.

16 Id.

17 Id.

18 State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).
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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.19

Based on the record before us, the contact began when 

Kirkendall approached Schriner’s house and Schriner answered 

his door. Thereafter, Kirkendall asked Schriner questions 

regarding the odor of marijuana, which Schriner voluntarily 

answered. During this early portion of the encounter, Schriner 

admitted to having recently smoked marijuana. Schriner 

contends that he was unreasonably seized under the Fourth 

Amendment at this point. We disagree and find that this contact 

was merely a first-tier police-citizen encounter, which, as noted 

above, does not implicate the Fourth Amendment.

Later in the encounter, Schriner was instructed by Kirkendall 

not to go back into his residence. Kirkendall testified that he 

did not permit Schriner to enter his residence at this point in 

order to prevent the loss of evidence while seeking a search 

warrant. However, Schriner does not point to any evidence 

that suggests that Kirkendall told Schriner that he was not 

free to leave during his encounter with law enforcement on 

his front porch. Schriner was free to move about the porch 

and leave the porch at any time. In fact, when Schriner stated 

that he intended to call his sister again to inform her that 

he was being arrested, Kirkendall replied, “That’s not what 

I’m doing.”

Schriner was free to leave the porch at any time. He simply was not allowed to enter his house. Even if we found 

that Schriner was being detained on his porch, by the time 

Kirkendall prohibited Schriner from going back into his residence, Schriner had already admitted to smoking and possessing marijuana. This, coupled with Schriner’s neighbors’ report 

and the strong odor of marijuana, provided sufficient evidence to support not only reasonable suspicion, but probable 

cause to justify Schriner’s arrest.20 This temporary restraint 

19 Id.

20 See State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992).
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of Schriner while he was on his porch was not inappropriate 

under the Fourth Amendment.

In Illinois v. McArthur,

21 the U.S. Supreme Court held that 

police officers did not violate the Fourth Amendment when 

they detained a man outside his trailer home for approximately 2 hours while other officers obtained a search warrant. 

In that case, police had probable cause to believe the man’s 

home contained drugs, and they had good reason to fear that 

unless restrained, the man would destroy the drugs before they 

returned with a warrant.22 The officers neither searched the 

trailer home nor arrested the man before obtaining a warrant, 

and they restrained the man for a “limited period of time.”23

The U.S. Supreme Court explained that it had “upheld temporary restraints where needed to preserve evidence until police 

could obtain a warrant” and noted it had found no case in 

which it had “held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss 

of evidence while the police diligently obtained a warrant in a 

reasonable period of time.”24

Based on the analysis above, we find that the temporary 

seizure of Schriner, which was designed to prevent the loss 

of evidence and which continued for a reasonable period of 

time while law enforcement diligently obtained a search warrant, was not unlawful. Although a warrant was not ultimately 

obtained because, as we will discuss below, Schriner eventually consented to the search, the same principles found in 

McArthur apply.

We conclude as a matter of law that the district court did 

not err in its resolution of Schriner’s motion to suppress on 

the basis of an improper seizure and arrest in violation of the 

Fourth Amendment.

21 Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 

(2001).

22 Id.

23 Id., 531 U.S. at 332.

24 Id., 531 U.S. at 334.
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Challenged Stateme

[9,10] Next, Schriner argues that his statements to law 

enforcement were improperly obtained under Miranda,

25 in 

violation of the Fifth Amendment, and that the district court 

erred in overruling in part his motion to suppress on that basis. 

Miranda warnings are required only where there has been such 

a restriction on one’s freedom as to render one “in custody.”26

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.27

[11] Miranda 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.28 Miranda requires law 

enforcement to give a particular set of warnings to a person 

in custody before interrogation: that he has the right to remain 

silent, that any statement he makes may be used as evidence 

against him, and that he has the right to an attorney, either 

retained or appointed.29

[12,13] For purposes of Miranda, interrogation “refers not 

only to express questioning, ‘but also to any words or actions 

on the part of the police . . . that the police should know are 

reasonably likely to elicit an incriminating response from the 

suspect.’”30 But it is well founded that statements made in a 

conversation initiated by the accused or spontaneously volunteered by the accused are not the result of interrogation and 

25 Miranda v. Arizona, supra note 1.

26 State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).

27 See State v. Rogers, 277 Neb. 37, 760 N.W.2d. 35 (2009).

28 State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).

29 Id.

30 See State v. Bauldwin, 283 Neb. 678, 700, 811 N.W.2d 267, 286 (2012) 

(ellipsis in original) (quoting State v. Rogers, supra note 27).
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are admissible.31 Put more broadly, any statement given freely 

and voluntarily without compelling influences is admissible 

in evidence.32

We find that Schriner was not in custody for the purposes 

of Miranda and the Fifth Amendment at any point prior to his 

formal arrest. Further, based on the evidence before us, including the body-camera recording of the entire encounter, Schriner 

freely volunteered a number of incriminating statements during 

his interaction with Kirkendall. Beginning very early on in the 

interaction, Schriner made several incriminating statements to 

Kirkendall that were not in response to words or actions by 

Kirkendall that were reasonably likely to elicit an incriminating response. For example, after Schriner’s initial admission 

to having used marijuana, Schriner 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.” And after Schriner, unsolicited, disclosed 

that he had methamphetamine in his residence, Kirkendall discussed with Schriner the possibility of his cooperating on the 

methamphetamine “aspect of [the situation].” Following his 

formal arrest, Schriner made comments such as “I was growing some weed,” “It helps my back,” and “You guys can just 

lose that meth; you don’t know how much I appreciate that.” 

None of these statements were responsive to an interrogation. 

Rather, Kirkendall was often collecting evidence and speaking 

to another officer while Schriner was speaking.

These statements were admissible. The district court did 

not err in denying in part Schriner’s motion to suppress on 

Miranda grounds.

Challenged Consensual S

Lastly, Schriner assigns that the district court erred in denying in part his motion to suppress because Schriner did not 

31 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

32 State v. Dallmann, supra note 26.
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freely and voluntarily consent to the search of his residence. 

Specifically, Schriner argues that his consent was coerced, in 

violation of the Fourth Amendment, based on Kirkendall’s 

indication that he had a search warrant. We find no merit in 

this contention.

[14,15] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, subject to a few established and well-delineated exceptions.33 One well-recognized 

exception to the warrant requirement is a search undertaken 

with consent.34

[16-18] 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.35 Consent must be given 

voluntarily and not as a result of duress or coercion, whether 

express, implied, physical, or psychological.36 The determination of whether the facts and circumstances constitute a voluntary consent to a search, satisfying the Fourth Amendment, is 

a question of law.37 Whether consent to a search was voluntary 

is to be determined from the totality of the circumstances surrounding the giving of consent.38

[19] In State v. Tucker,

39 we held that consent was not 

coerced where officers repeatedly asked a suspect for permission to enter his apartment to look for illegal items and threatened to get a search warrant, eventually leading the suspect 

to step back from the door with his arms raised and his hands 

upward and outward.40 We noted in Tucker that in situations 

33 State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).

34 See id.

35 State v. Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001).

36 Id.

37 State v. Modlin, supra note 5.

38 Id.

39 State v. Tucker, supra note 35.

40 See id.
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where the searching officer has stated that he could obtain or 

was in the process of getting a warrant, the courts have never 

found such a statement coercive per se. Rather, the courts have 

generally looked at the statement made by the officer to determine if it was coercive in the particular factual situation.41 We 

also held that “[a] statement of a law enforcement agent that, 

absent a consent to search, a warrant can be obtained does not 

constitute coercion.”42

Considering the totality of the circumstances, we find that 

Schriner’s consent was voluntary and not coerced. There is no 

evidence of police pressure. Kirkendall’s body-camera recording shows that Schriner acted voluntarily and not due to 

duress or coercion. As the district court noted in its order on 

Schriner’s motion to suppress, Kirkendall never told Schriner 

that he already had a search warrant, but, rather, only that the 

sheriff was going to “write” one. That does not undermine the 

validity of Schriner’s subsequent consent. We find that there is 

no evidence in the record to support Schriner’s contentions that 

Kirkendall “misrepresented that a warrant was presently being 

written” and that Kirkendall “falsely asserted that he already 

had a warrant.”43

Consequently, we find that there was no Fourth Amendment 

violation in relation to the validity of Schriner’s consent to the 

search of his residence, and we accordingly conclude that the 

district court did not err in denying in part Schriner’s motion to 

suppress on this basis.

CONCLUSION

For the reasons set forth above, we affirm the decision of the 

district court.

Affirmed

41 Id.

42 Id. at 948, 636 N.W.2d at 860.

43 See brief for appellant at 21.