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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

STATE v. DEGARMO

Cite as 305 Neb. 680

State of Nebraska, appellee, v. 

David E. Degarmo, appellant.

___ N.W.2d ___

Filed May 1, 2020. No. S-19-015.

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: 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. Constitutional Law: Search and Seizure: Blood, Breath, and Urine 

Tests. The Fourth Amendment prohibits unreasonable searches and 

seizures, and it is well-established that the taking of a blood, breath, or 

urine sample is a search.

4. Search and Seizure: Warrantless Searches. Searches without a valid 

warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions.

5. Warrantless Searches. The warrantless search exceptions Nebraska has 

recognized 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/

07/10/2020 12:08 AM CDT
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STATE v. DEGARMO

Cite as 305 Neb. 680

6. Constitutional Law: Search and Seizure: Duress. Generally, 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.

7. Warrantless Searches: Duress. Consent for a warrantless search must 

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

express, implied, physical, or psychological.

8. 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.

9. 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.

10. Police Officers and Sheriffs: Warrantless Searches. While there is 

no requirement that police must always inform citizens of their right to 

refuse when seeking permission to conduct a warrantless consent search, 

knowledge of the right to refuse is a factor to be considered in the voluntariness analysis.

11. Police Officers and Sheriffs: Search Warrants. 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 Lancaster County, 

Andrew R. Jacobsen, Judge, on appeal thereto from the 

County Court for Lancaster County, Thomas E. Zimmerman, 

Judge. Judgment of District Court affirmed.

Mark E. Rappl for appellant.

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

Mariah J. Nickel for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

David E. Degarmo was convicted of driving under the influence based largely on the testimony of a certified drug recognition expert who concluded Degarmo was under the influence 

of marijuana. A subsequent chemical test of Degarmo’s urine 

confirmed the presence of marijuana. Degarmo challenges the 

admission at trial of the results of the warrantless urine test, 
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STATE v. DEGARMO

Cite as 305 Neb. 680

relying on the U.S. Supreme Court’s opinion in Birchfield v. 

North Dakota.

 1 Because we conclude Degarmo consented to 

the urine test and the results were thus admissible, we do not 

address the Birchfield issue.

I. FACTS

1. Traffic Stop

On the morning of December 26, 2016, Degarmo was driving on a highway in Lancaster County, Nebraska, when he was 

stopped by Lancaster County Deputy Sheriff Jeremy Schwarz 

for an expired registration. Degarmo was the only occupant of 

the vehicle. Schwarz noticed the odor of burnt marijuana coming from inside Degarmo’s vehicle, and he asked Degarmo to 

accompany him back to his cruiser.

Schwarz patted Degarmo down before placing him in the 

cruiser and found a baggie containing a small amount of marijuana in Degarmo’s front pocket. While seated inside the cruiser 

with Degarmo, Schwarz again smelled marijuana and noticed 

Degarmo had slow speech and bloodshot eyes. Degarmo admitted that, within the prior 20 minutes, he had smoked a “pinch” 

of marijuana in his vehicle before he began driving. Schwarz 

subsequently searched Degarmo’s vehicle and found a marijuana pipe in the center console. The pipe contained both burnt 

and unburnt marijuana. Schwarz noticed Degarmo had a distinct green hue on his tongue with heat-raised taste buds, which 

Schwarz testified are indicators of recent marijuana inhalation. 

Schwarz also observed Degarmo to be relaxed and calm and to 

have fluttering eyelids, and he testified those were also signs 

of marijuana ingestion.

2. Field Sobriety Tests

Based on his observations, Schwarz decided to administer 

field sobriety tests. He conducted a horizontal gaze nystagmus 

test, a vertical gaze nystagmus test, an eye convergence test, 

1 Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 

560 (2016).
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a “modified Romberg test,” a walk-and-turn test, and a onelegged stand test. Degarmo did not show any signs of impairment on the nystagmus tests, but Schwarz testified that is not 

unusual when the suspected impairment is due to marijuana. 

Degarmo showed signs of impairment on all of the remaining tests.

After conducting the field sobriety tests, Schwarz had 

Degarmo return to the cruiser and took his pulse, which measured at 140 beats per minute. Schwarz testified an average 

normal pulse is 60 to 90 beats per minute. Schwarz arrested 

Degarmo for driving under the influence and took him to a 

detoxification center in Lincoln, Nebraska, for a drug recognition evaluation (DRE). A DRE is a nationally standardized 

protocol for identifying drug intoxication. 2

3. Drug Recognition Evaluation

Schwarz, who is a certified DRE expert, conducted 

the DRE. It was performed in a testing room with only 

Schwarz and Degarmo present. Most of the DRE was video 

recorded, and Degarmo waived his Miranda rights prior to the 

examination.

(a) Breath Test

At the beginning of the DRE, Schwarz requested a breath 

sample from Degarmo. In doing so, he read part A of a standardized postarrest chemical test advisement to Degarmo. This 

form provided:

You are under arrest for operating or being in actual 

physical control of a motor vehicle while under the 

influence of alcoholic liquor or drugs. Pursuant to law, 

I am requiring you to submit to a chemical test or tests 

of your breath or urine to determine the concentration of 

alcohol or drugs in your breath or urine.

Refusal to submit to such test or tests is a separate 

crime for which you may be charged.

2 See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
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I have the authority to direct whether the test or 

tests shall be of your breath or urine and may direct 

that more than one test be given.

A. Request for test: I hereby direct a test of your 

ü breath ___ urine to determine the ü alcohol ___ 

drug content.

Schwarz checked the blank space in front of “breath” and 

“alcohol” on the advisement, and both Schwarz and Degarmo 

signed the advisement form at 11:08 a.m. Schwarz testified that 

when he went through the form, he explained to Degarmo that 

it pertained only to testing for alcohol ingestion. Degarmo’s 

breath test was completed at 11:27 a.m. and showed no alcohol 

in his system.

(b) Opinion of Impairment

After taking the breath test, Schwarz conducted the remainder of the DRE according to the standardized protocol. 3

Schwarz testified, summarized, that Degarmo showed impairment consistent with use of marijuana on most of the DRE 

tests he administered. Schwarz further testified that the tests 

on which Degarmo showed no impairment were tests on which 

marijuana use would not be expected to result in impairment. 

Schwarz formed the opinion that Degarmo was under the influence of marijuana and was unable to safely operate a motor 

vehicle. After forming this opinion, Schwarz asked Degarmo to 

consent to a urine test.

(c) Urine Test

In connection with requesting consent for a urine test, 

Schwarz read Degarmo another standardized form. This form 

was entitled “Consent to Search for Blood/Urine Alcohol or 

Drug Evidence,” and it provided:

I, David E. Degarmo, located at 721 K St., Lancaster 

County, Nebraska, have been informed of my constitutional right not to have a search made of my blood or 

3 See id.
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Cite as 305 Neb. 680

urine, which is under my control, without a search warrant. I also have been informed of and understand my 

right to refuse to consent to such search. I understand that 

if I refuse to give consent to search my blood or urine, a 

search warrant for my blood or urine will be sought. With 

this understanding, I hereby authorize [Deputy] Schwarz, 

who had identified himself/herself as a law enforcement 

officer in the State of Nebraska, to conduct a search of 

my body for blood or urine for alcohol and/or drugs. I 

understand that such a search may include the drawing of 

my blood and/or the collection of my urine. I understand 

that this may be used as evidence against me in criminal proceedings.

I have read and/or have been read this form; I understand it; and I give the officer permission to search my 

blood or urine. This permission is being given voluntarily 

and without threats or promises of any kind.

After this consent to search form was read to him, Degarmo 

signed and dated the form at 12:04 p.m., and he provided the 

requested urine sample. The signed consent to search form was 

received into evidence at trial without objection.

Degarmo’s urine sample was sent to the Nebraska State 

Patrol Crime Laboratory for testing. The test results confirmed 

the presence of the metabolite for tetrahydrocannabinol (the 

active drug in marijuana) in Degarmo’s urine.

4. Motion to Suppress

Degarmo was charged in the county court for Lancaster 

County with driving under the influence (one prior conviction), 

possession of 1 ounce or less of marijuana, and possession of 

drug paraphernalia. He moved to suppress the results of the 

urine test, arguing that he did not voluntarily consent to the 

test and that the urine sample was obtained without a warrant 

in violation of Birchfield,

 4 his rights under the 4th and 14th 

Amendments to the U.S. Constitution, and article I, § 7, of the 

4 See Birchfield, supra note 1.
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Cite as 305 Neb. 680

Nebraska Constitution. The county court denied the motion to 

suppress, reasoning in part that Degarmo “freely, voluntarily, 

knowingly and intelligently” gave consent for the urine test 

by signing the consent to search form. The matter proceeded 

to trial.

5. Trial

During the jury trial, Schwarz generally testified to the 

events as set out above. He also testified that after conducting all but the final step of the DRE (the urine test), it was his 

opinion that Degarmo was under the influence of marijuana 

and was not able to safely operate a motor vehicle. He testified that he formed his opinion on the cause and extent of 

Degarmo’s impairment prior to conducting the urine test, and 

he described the urine test in this case as “confirmation” or 

“corroborat[ion]” of his opinion on Degarmo’s impairment.

The toxicologist who tested Degarmo’s urine sample also 

testified at trial. She explained the urine testing process and 

testified that she performed the test in accordance with “Title 

177.” Over Degarmo’s objection, the toxicologist testified that 

her testing showed the active drug metabolite for marijuana 

was present in Degarmo’s urine. Her report to that effect was 

received into evidence, also over Degarmo’s objection. The 

toxicologist admitted that it was not scientifically possible 

to determine impairment based only on the presence of drug 

metabolites in urine, and she explained that the purpose of 

urine testing was simply to “corroborate the drug recognition evaluator’s opinion” as to the substance contributing to 

any impairment.

Degarmo testified in his own defense. As relevant to the 

issues on appeal, he admitted that on the morning he was 

stopped by Schwarz, he had smoked a small amount of marijuana inside his vehicle before driving.

6. Verdicts and Sentences

The jury found Degarmo guilty on all three charges. On 

the conviction for driving under the influence, Degarmo was 
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STATE v. DEGARMO

Cite as 305 Neb. 680

sentenced to 45 days in jail, fined $500, and his license was 

revoked for 18 months. On the conviction for possession of 

marijuana, Degarmo was fined $300. And on the conviction for possession of drug paraphernalia, Degarmo was 

fined $25.

7. Appeal to District Court

Degarmo filed a timely appeal through new court-appointed 

counsel. He assigned error to the admission of the warrantless 

urine test result. The district court, sitting as an intermediate 

court of appeals, affirmed. 5 In doing so, it examined the totality of the circumstances and found that Degarmo voluntarily 

consented to the urine test. Degarmo appealed again, and we 

granted his petition to bypass the Court of Appeals.

II. ASSIGNMENT OF ERROR

Degarmo assigns that the district court erred in affirming 

the county court’s order overruling his motion to suppress the 

results of the urine test.

III. 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, 

an appellate court applies a two-part standard of review. 6

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. 7

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

reviewing whether a consent to search was voluntary. 8 As to 

the historical facts or circumstances leading up to a consent 

5 See State v. Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019).

6 State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).

7 Id.

8 State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).
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STATE v. DEGARMO

Cite as 305 Neb. 680

to search, we review the trial court’s findings for clear error. 9

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. 10 And where the facts are largely undisputed, the 

ultimate question is an issue of law. 11

IV. ANALYSIS

[3-5] The Fourth Amendment prohibits unreasonable 

searches and seizures, and it is well-established that the taking of a blood, breath, or urine sample is a search. 12 Searches 

without a valid warrant are per se unreasonable, subject only 

to a few specifically established and well-delineated exceptions. 13 The warrantless search exceptions Nebraska has recognized 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. 14

Both the county court and the district court devoted considerable analysis to whether the search incident to arrest exception can apply to a urine test after the U.S. Supreme Court’s 

decision in Birchfield.

 15 This case does not require us to answer 

that question. As explained below, we conclude that Degarmo 

voluntarily consented to the search of his urine and that his 

motion to suppress was properly overruled. As such, we do not 

address the applicability of any other recognized exception to 

the warrant requirement.

9 Id.

10 Id.

11 Id.

12 See, Birchfield, supra note 1; Skinner v. Railway Labor Executives’ Assn., 

489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); Schmerber v. 

California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

13 State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

14 Id.

15 See Birchfield, supra note 1.
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STATE v. DEGARMO

Cite as 305 Neb. 680

1. Legal Standard and 

Historical Facts

As a threshold matter, we emphasize that our analysis in 

this case is focused exclusively on whether Degarmo voluntarily gave consent for the search of his urine. 16 We thus do 

not address whether, in the wake of the U.S. Supreme Court’s 

holding in Birchfield, Degarmo can also be deemed to have 

impliedly consented to the urine test pursuant to Nebraska’s 

implied consent laws. 17

[6-9] Generally, 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. 18 Consent must be 

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

whether express, implied, physical, or psychological. 19 The 

determination of whether the facts and circumstances constitute a voluntary consent to a search, satisfying the Fourth 

Amendment, is a question of law. 20 Whether consent to a 

search was voluntary is to be determined from the totality of 

the circumstances surrounding the giving of consent. 21

Here, the county court made several findings of historical 

fact related to its determination that Degarmo voluntarily consented to the urine test. It found that Degarmo was in custody 

at the time, having been arrested on suspicion of driving under 

the influence of drugs and transported to a detoxification center for purposes of a DRE. It found that as part of the DRE, 

Schwarz read Degarmo part A of the postarrest chemical test 

16 See State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017) (concluding 

Birchfield did not categorically invalidate warrantless blood draw based 

on actual consent when driver was incorrectly advised he was required to 

consent or face criminal penalties and finding totality of circumstances test 

proper).

17 See Neb. Rev. Stat. § 60-6,197(1) and (3) (Cum. Supp. 2018).

18 Schriner, supra note 8.

19 Id.

20 Id.

21 Id. See, also, Hoerle, supra note 16.
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advisement form and directed a test of his breath, and that 

Degarmo signed part A of that form at 11:08 a.m. It found 

that about an hour later, Schwarz read Degarmo the consent to 

search form asking for permission to search his urine, and that 

Degarmo signed that form at 12:04 p.m. It noted Degarmo’s 

testimony that he signed the forms because he understood 

that he was going to be “guilty no matter what.” It also noted 

Degarmo’s testimony that he felt “belittled” during the entire 

course of the DRE.

Degarmo does not challenge any of these findings of historical fact, and we agree they are supported by the record and not 

clearly erroneous. After considering the totality of the circumstances, both the county court and the district court concluded 

that Degarmo voluntarily consented to the search of his urine. 

Because this determination presents a question of law, we consider it independently. 22

2. Totality of Circumstances

As stated, whether consent to a warrantless search was 

voluntary is to be determined from the totality of the circumstances surrounding the giving of consent. On appeal, 

Degarmo advances two reasons why his written consent to the 

urine test was not voluntary. First, he argues his consent was 

“coerced out of him by a claim of lawful authority.” 23 Next, 

he argues his consent was not voluntary because he was “in 

a police-dominated atmosphere.” 24 We address each argument 

in turn.

In arguing that his consent was coerced by a claim of lawful authority, Degarmo claims that after he read and signed the 

postarrest chemical test advisement form (which directed him 

to submit to a breath test), he was left with the “‘impression’” 

that if he did not also sign the consent to search form and agree 

to a search of his urine, that he “‘was going to be guilty no 

22 Schriner, supra note 8.

23 Brief for appellant at 20.

24 Id.
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matter what.’” 25 We find this argument unavailing in light of 

the plain language of the consent to search form.

[10] The consent to search form expressly advised Degarmo 

that he had a constitutional right not to have a search made 

of his blood or urine without a search warrant, and the form 

unequivocally stated that Degarmo had a right to refuse to 

consent to such a search. While there is no requirement that 

police must always inform citizens of their right to refuse when 

seeking permission to conduct a warrantless consent search, 

knowledge of the right to refuse is a factor to be considered in 

the voluntariness analysis. 26 Here, the fact that Degarmo was 

told he had a constitutional right to refuse a warrantless search 

of his urine is a factor that weighs heavily in favor of finding 

his consent to such a search was voluntary.

[11] The consent to search form also told Degarmo that if he 

refused to give consent to search his blood or urine, then officers would seek a search warrant. In his reply brief, Degarmo 

suggests that the threat of being “detained even further for the 

possible issuance of a search warrant” 27 was itself coercive, but 

we disagree. As we explained in State v. Tucker,

 28 “A statement 

of a law enforcement agent that, absent a consent to search, a 

warrant can be obtained does not constitute coercion.”

Having considered the language of the postarrest chemical 

test advisement form in conjunction with the plain language 

of the consent to search form, we reject Degarmo’s suggestion 

that an objectively reasonable person would be left with the 

impression he or she had to consent.

Nor are we persuaded by Degarmo’s claim that his consent was coerced simply by being “in a police-dominated 

atmosphere.” 29 Degarmo suggests his consent to the urine 

25 Id.

26 See United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed. 

2d 242 (2002).

27 Reply brief for appellant at 3.

28 State v. Tucker, 262 Neb. 940, 948, 636 N.W.2d 853, 860 (2001).

29 Brief for appellant at 20.
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search was not voluntary because he “had been arrested, placed 

in handcuffs, put into a police cruiser, driven to detox, [and] 

subjected to various tests.” 30 All these are factors to consider in 

a totality of the circumstances analysis, but having done so, we 

do not agree with Degarmo that any of these factors vitiate the 

voluntariness of his written consent.

The U.S. Supreme Court has held the “fact of custody alone 

has never been enough in itself to demonstrate a coerced confession or consent to search.” 31 And this court has similarly 

recognized that “[t]he mere fact that the individual is in police 

custody, standing alone, does not invalidate the consent if, 

in fact, it was voluntarily given.” 32 Here, the record shows 

Degarmo’s arrest and transport to a detox center were part of a 

routine DRE investigation, which was video recorded. There is 

no evidence that police conducted either the arrest or the DRE 

in a threatening or coercive manner. 33

Having considered the totality of the circumstances, we 

determine Degarmo’s written consent to the warrantless search 

of his urine was voluntary and not coerced. The motion to suppress was properly denied by the county court, and that denial 

was properly affirmed by the district court.

V. CONCLUSION

Because Degarmo voluntarily consented to the warrantless 

search of his urine, the search fell within a recognized exception to the warrant requirement. Finding no error in the district 

court’s decision to affirm the county court’s overruling of 

Degarmo’s motion to suppress, we affirm.

Affirmed.

30 Brief for appellant at 20-21.

31 United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d 

598 (1976).

32 State v. Christianson, 217 Neb. 445, 449, 348 N.W.2d 895, 898 (1984).

33 See Schriner, supra note 8 (finding consent for warrantless search was 

voluntary when there was no evidence of police pressure and police body 

camera recorded interaction).