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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF GEM M.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF GEM M., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

GEM M., APPELLANT.

Filed April 14, 2020. No. A-19-701.

Appeal from the Separate Juvenile Court of Lancaster County: REGGIE L. RYDER, Judge. 

Affirmed.

Joe Nigro, Lancaster County Public Defender, and Amy J. Peters for appellant.

Patrick F. Condon, Lancaster County Attorney, and Danielle Kerr for appellee.

PIRTLE, BISHOP, and ARTERBURN, Judges.

PIRTLE, Judge.

INTRODUCTION

Gem M. appeals from an order of adjudication by the Separate Juvenile Court of Lancaster 

County finding that he was a juvenile as defined by Neb. Rev. Stat. § 43-247(1) (Reissue 2016). 

Gem argues that the juvenile court erred in overruling his motion to suppress evidence and 

statements obtained by law enforcement officials on the basis that his Fourth Amendment right 

against unreasonable searches and seizures and Fifth Amendment privilege against compelled 

self-incrimination were violated. For the reasons that follow, we affirm.
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BACKGROUND

Gem, a juvenile, was adjudicated for possession of drug paraphernalia in violation of Neb. 

Rev. Stat. § 28-441 (Cum. Supp. 2018). The adjudication was the result of a petition filed by the 

State, alleging that Gem had violated § 28-441 by possessing, with the intent to use, drug 

paraphernalia to manufacture, inject, ingest, inhale, or otherwise introduce into the human body a 

controlled substance.

Prior to the adjudication hearing, Gem filed a motion to suppress evidence and statements 

obtained as a result of the warrantless stop and search of his person on the date alleged in the 

State’s petition. A hearing was held on Gem’s motion to suppress on April 24, 2019.

At the hearing, the State called Officer Shane Alesch with the Lincoln Police Department 

(LPD). Alesch testified that he regularly receives training on identifying suspects and drugs or 

drug paraphernalia. Alesch has been a police officer since May 1997, approximately 23 years.

Alesch testified that he was dispatched to 3111 North Hill Road in Lincoln, Nebraska, on 

October 30, 2018, after receiving a call for a possible burglary in progress. He testified that the 

call came out at 11:22 a.m. and he arrived on scene within a few minutes. The call stemmed from 

a report by a resident at the address that they had heard scraping on the door and believed someone 

was trying to break in. The witness observed the individual take off running to the west. The only 

description of the suspect provided was that the suspect was wearing a gray hoodie or sweatshirt.

When Alesch arrived on scene, he observed one individual in the area walking to the north. 

He testified that the individual was approximately 75 yards from the apartment building. At that 

point, Alesch got out of his cruiser, made contact with the individual, and asked him what he was 

doing. The individual responded that he was on his way to North Star High School (North Star). 

At that point, Alesch identified the individual from his student I.D. as Gem.

Alesch testified that after he identified the individual as Gem, he asked Gem if he could 

pat him down. Gem responded “yes” and Alesch conducted a pat-down search. During the 

pat-down, Alesch felt a hard object in Gem’s left front pocket and, from his training and 

experience, determined the object to be a narcotics pipe. Alesch asked Gem if the object was a 

“drug pipe” and Gem responded “yes.” Alesch then removed the pipe and Gem stated that it had 

come from a friend.

Alesch testified that he initially approached Gem because he was the only party within the 

area after responding to the possible burglary call, and because Gem was wearing a gray sweatshirt 

or hoodie, matching the reporting party’s description of the suspect. Gem denied any involvement 

in the possible burglary and stated that he was coming from a “Dollar General” store and on his 

way back to North Star.

Alesch did not recall Gem ever requesting to leave or end the encounter, nor telling Gem 

that he was not free to leave. Alesch did not read Miranda warnings to Gem due to still being in 

the early stages of the burglary investigation. He testified that the pat-down was conducted for his 

safety, to determine whether Gem had any weapons on his person. Alesch did not have reason to 

believe that Gem did not freely consent to the search, nor that Gem was unwilling to talk to him.

On cross-examination, Alesch estimated that three other officers responded to the scene 

where he had stopped Gem. He testified that all of the officers were identifiable as law enforcement 
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and arrived in marked police cruisers. He further testified that he believed Gem was wearing a 

backpack at the time, but had no visible weapons or burglary tools. He also conceded that he had 

not witnessed Gem commit any crime.

Alesch indicated that, upon arriving at the scene, he parked his police cruiser approximately 

20 yards in front of Gem. Alesch testified that Gem cooperated by waiting for him while he spoke 

to other officers arriving at the scene. Alesch was unable to say for certain whether he had asked 

Gem to identify himself and explain what he was doing in the area before or after the other officers 

had arrived. He did not recall Gem indicating that he was attempting to catch a bus at North Star 

when he was stopped. He also could not say with certainty whether the pat-down of Gem occurred 

prior to the other officers leaving the scene.

Alesch testified that he did not specifically advise Gem that he did not have to agree to the 

pat-down. No weapons were discovered on Gem during the pat-down. Alesch further testified that 

he did not advise Gem of his Miranda rights prior to asking whether the object in his pocket was 

a “smoking” or “drug” pipe.

The juvenile parent notification and referral form indicated that Alesch made phone contact 

with Gem’s mother at 11:58 a.m. He recalled making the phone call while still at the scene, or 

shortly thereafter. He testified that the entire encounter with Gem lasted “very close to a half hour.”

Alesch testified that the initial dispatch call was made at 11:22 a.m. His report indicated 

11:41 a.m. as the approximate time of the incident. Alesch acknowledged that Officer Denny, the 

primary responding officer on the burglary call, did not mention the paraphernalia in his incident 

report. Alesch testified that he located the pipe “fairly into the process” of his contact with Gem. 

Alesch testified that he reported 11:42 a.m. as the time Gem was ultimately cited.

On redirect examination, Alesch testified that it is standard practice to conduct a search for 

officer safety to determine whether an individual is possessing weapons or other objects of that 

nature that are not visible. He indicated that, due to the safety concerns, the pat-down would have 

occurred within the first few minutes of his contact with Gem.

After the conclusion of Alesch’s testimony, the State rested its presentation of evidence on 

the motion to suppress. Gem took the stand in his own defense.

Gem testified that he recalled three officers, including Alesch, being present on the 

October 30 incident where he was stopped. He testified that Alesch pulled up and parked his police 

cruiser approximately 15 yards directly in front of him, blocking the path he had been walking. 

Gem recalled Alesch asking him to remain where he was, which he did. Gem testified that after 

asking him to stay put, Alesch went and spoke with another officer at the scene before returning 

to speak with him.

Once Alesch returned, he asked Gem about his identity and what he was doing in the area. 

Gem explained that he was on his way back to North Star from a nearby Dollar General in order 

to catch a bus to his class at Southeast Community College (SCC). Gem testified that he told 

Alesch “multiple times” that he was trying to catch the bus. Gem also indicated that he told Alesch 

that he was running late, but nevertheless stayed put and cooperated.

Gem estimated he had been at the scene for “a good 30 to 40 minutes” before he was 

searched. He expressly disputed Alesch’s testimony that the search had taken place immediately 

upon contact. According to Gem, the search did not take place until after the other law enforcement 
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had already completely left the area near the apartment complex. Gem also testified that he asked 

whether he could leave three or four times but was told to wait until the officers could “figure out 

what [was] going on with the situation.” Gem testified that each time he asked whether he could 

leave he explained that he was running late to catch the bus. Gem noted that he did not feel as 

though he was free to leave at any point before or during the search.

Gem testified that after the other two officers left he believed he was cleared of any 

suspicion regarding the burglary. Gem again asked Alesch if he was free to leave, but again was 

told to stay put while Alesch “figure[d] things out.”

Gem testified that when Alesch asked him whether he would permit him to conduct a 

search of his person Gem responded that he was busy and had to go. Gem specifically denied 

consenting or agreeing to the search. Instead, Gem recalled Alesch stating that he was cleared of 

any suspicion regarding the burglary case, but nonetheless was asked by Alesch to submit to a 

search.

After Alesch conducted the pat-down, he asked Gem whether the object in his pocket was 

a “smoking pipe.” Gem testified that Alesch never informed him that he did not have to speak to 

him, nor that he did not have to agree to the search. Gem once again denied giving permission to 

Alesch to conduct the search.

Gem testified that after the search, and upon leaving the scene, he immediately made a 

phone call to his mother. Gem testified that his mother had already been informed of the incident 

by the time he called her. Gem estimated that it was approximately 12:12 p.m. by the time he called 

his mother, due to the fact he had already missed his bus to his class. He estimated that from the 

time law enforcement arrived, until he was free to leave, was approximately 50 minutes to an hour.

On cross-examination, Gem testified that he believed his bus was scheduled for 11:40 a.m. 

Gem clarified that when he saw the bus leave North Star he was still being questioned by Alesch 

and was not yet told he was free to leave. He testified that the search occurred “in the last ten 

minutes” of his encounter with Alesch at around 11:50 a.m. Gem testified that he was finally free 

to leave approximately ten minutes after the search took place, around noon.

Gem testified that as soon as Alesch stopped him he was informed that there had been a 

possible attempted burglary involving someone wearing a gray jacket and that he was told to stay 

put until the officers could confirm he was not involved. He testified that a second law enforcement 

officer arrived five to seven minutes after Alesch.

On redirect examination, Gem clarified that he did inform Alesch that he did not wish to 

be searched. Nevertheless, Alesch proceeded with the search and Gem cooperated. Gem did not 

feel as though he could physically refuse the search, so he ultimately cooperated. Nevertheless, he 

testified that he never gave explicit affirmative consent to the search.

After the conclusion of Gem’s testimony, the defense called Gem’s mother, Holly, to 

testify. Holly testified that on October 30, 2018, she received a phone call from Alesch regarding 

the incident involving her son. Holly testified that Alesch asked her whether Gem was on his way 

to catch a bus to SCC and she confirmed that he was.

After Holly’s testimony, Gem’s attorney rested her presentation of evidence on the motion 

to suppress. The State presented a closing argument, contending that Gem consented to the search 
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of his person. In the alternative, the State argued that there was reasonable suspicion that Gem was 

involved in the burglary and the pat-down was therefore warranted on the grounds of officer safety.

Gem’s attorney presented a closing argument on the motion to suppress, arguing that 

Alesch violated Gem’s constitutional right against unreasonable searches and seizures and 

privilege against compelled self-incrimination. Gem’s attorney first argued that Gem had been 

“seized” within the meaning of the Fourth Amendment, that such was unreasonable, and any 

evidence obtained as a result was fruit of the unlawful detention. Gem’s attorney next argued that 

even if the stop did not amount to a “seizure” under the Fourth Amendment, it exceeded the 

boundaries of a permissible “Terry Stop.” Gem’s attorney also argued that Gem did not knowingly 

and voluntarily consent to a search of his person. Finally, Gem’s attorney argued that any 

statements solicited from Gem should be suppressed as a violation of his Fifth and Fourteenth 

Amendment privilege against compelled self-incrimination.

At the conclusion of closing arguments, the court took the matter under advisement. On 

May 3, 2019, the juvenile court issued an order overruling Gem’s motion to suppress both the 

physical evidence and statements made by Gem in the course of the stop and search.

The juvenile court first found that there was a lawful basis to stop Gem as an investigatory 

stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) based on Gem’s 

proximity in time and location to the possible burglary in-progress call that had come in minutes 

earlier. The court found that Alesch had “specific and articulable facts sufficient to give rise to 

reasonable suspicion that [Gem], at the time of the contact, ha[d] committed or was committing a 

crime[.]” The juvenile court weighed the credibility of the witnesses and found Alesch’s timeline 

of events to be more credible, as “it would make little to no sense for [Alesch] to want to search 

[Gem] at the end of the encounter[.]”

The juvenile court also found that Gem voluntarily consented to the search of his person. 

The court noted that while the search likely met the requirements under the plain-feel doctrine, it 

was satisfied that Gem’s consent was made freely and voluntarily and there was no need to further 

analyze the plain-feel exception to the search warrant requirement.

The juvenile court also found that Gem’s Fifth Amendment privilege against compelled 

self-incrimination had not been violated by Alesch’s failure to provide Gem with Miranda

warnings. The court noted that Gem was not in custody nor deprived of his freedom of action when 

asked whether the object in his pocket was a drug pipe, and therefore the question was permissible 

and Gem’s response in the affirmative was not subject to suppression.

After previously overruling Gem’s motion to suppress, a formal hearing was held on the 

State’s petition on June 17, 2019. The State introduced exhibit 1, a stipulation that Alesch would 

have testified consistent with his testimony at the suppression hearing had he been called, as well 

as a stipulation to Gem’s birthdate and that the events giving rise to the petition took place in 

Lancaster County, Nebraska. The State also introduced exhibit 2, the pipe that was recovered from 

the search of Gem.

The court found that the State had met its burden of proof regarding the allegations in its 

petition, that Gem had possessed drug paraphernalia in violation of § 28-441, and adjudicated Gem 

pursuant to § 43-247(1). This appeal followed.
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ASSIGNMENTS OF ERROR

Gem asserts that the juvenile court erred in overruling his motion to suppress evidence and 

statements. Specifically, Gem assigns, consolidated and restated, that (1) law enforcement officials 

conducted an unreasonable search and seizure in violation of his Fourth Amendment rights; (2) 

even if Gem consented to the search, the evidence and statements solicited are “fruit of the 

poisonous tree” and should be suppressed; and (3) Gem’s statements to law enforcement officials 

were obtained in violation of Miranda and his Fifth Amendment privilege against compelled 

self-incrimination.

STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches its conclusions 

independently of the juvenile court’s findings. In re Interest of Giavonni P., 304 Neb. 580, 935 

N.W.2d 631 (2019). When the evidence is in conflict, however, an appellate court may give weight 

to the fact that the lower court observed the witnesses and accepted one version of the facts over 

the other. In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018).

A trial court’s ruling on a motion to suppress based on the Fourth Amendment, apart from 

determination of reasonable suspicion to conduct investigatory stops and probable cause to 

perform warrantless searches, is upheld on appeal unless its findings of fact are clearly erroneous. 

In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012). The ultimate determinations of 

reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless 

search are reviewed de novo, and findings of fact are reviewed for clear error, giving due weight 

to the inferences drawn from those facts by the trial judge. Id.

In reviewing a motion to suppress a confession based on the claimed involuntariness of the 

statement, including claims that it was procured in violation of 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. With regard to historical facts, we review 

the trial court’s findings for clear error. Whether those facts suffice to meet the constitutional 

standards, however, is a question of law, which we review independently of the trial court’s 

determination. In re Interest of Miah S., 290 Neb. 607, 861 N.W.2d 406 (2015).

ANALYSIS

Gem generally assigns that the juvenile court erred in overruling his motion to suppress 

evidence and statements. He contends that his Fourth Amendment right against unreasonable 

searches and seizures, and Fifth Amendment privilege against compelled self-incrimination, were 

violated and the evidence leading to his adjudication therefore should have been suppressed. We 

disagree.

FOURTH AMENDMENT SEARCH AND SEIZURE

Gem first argues that the juvenile court should have found that the contact by law 

enforcement exceeded the permissible scope and duration of a Terry stop and, therefore, amounted 

to an unlawful arrest unsupported by probable cause. In the alternative, Gem argues that even if 

law enforcement’s contact with him did not amount to a custodial arrest, the requirements of an 
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investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), were 

not met. For the reasons set forth below, we find that the conduct of law enforcement in this case 

did not violate Gem’s Fourth Amendment rights.

The Fourth Amendment of the U.S. Constitution and Article I, § 7, of the Nebraska 

Constitution guarantee against unreasonable searches and seizures. State v. Wiedeman, 286 Neb. 

193, 835 N.W.2d 698 (2013); U.S. Const. Amend. IV; Neb. Const. art. I, sec. 7. The Fourth 

Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but 

upon probable cause, supported by Oath or affirmation, and particularly describing the 

place to be searched, and the person or things to be seized.

To determine whether an encounter between an officer and a citizen reaches the level of a 

seizure under the Fourth Amendment to the U.S. Constitution, an appellate court employs the 

analysis set forth in State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993), which describes 

the three levels, or tiers, of police-citizen encounters. State v. Shiffermiller, 302 Neb. 245, 922 

N.W.2d 763 (2019). The first tier involves no restraint of the liberty of the citizen involved, but, 

rather, the voluntary cooperation of the citizen is elicited through noncoercive questioning. Id. This 

type of contact does not rise to the level of a seizure and therefore is outside the realm of Fourth 

Amendment protection. Id.

The second category, the investigatory stop, as defined by the U.S. Supreme Court in Terry

v. Ohio, supra, is limited to brief, nonintrusive detention during a frisk for weapons or preliminary 

questioning. State v. Shiffermiller, supra. 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. State v. Shiffermiller, 

supra.

The third type of encounter, an arrest, is characterized by a highly intrusive or lengthy 

search or detention. Id. The Fourth Amendment requires that an arrest be justified by probable 

cause to believe that a person has committed or is committing a crime. State v. Shiffermiller, supra.

In this case, the juvenile court found, and we agree, that the encounter between Gem and 

law enforcement officers falls under the second category, the investigatory stop. Gem disputes this 

characterization, claiming that the scope and duration of his encounter amounted to an unlawful 

arrest unsupported by probable cause. We disagree.

We acknowledge that the Nebraska Supreme Court has expressed “there is often a gray 

area between investigatory detentions and arrests.” State v. Shiffermiller, 302 Neb. at 255, 922 

N.W.2d at 773. The Supreme Court stated, in State v. Wells, 290 Neb. 186, 197, 859 N.W.2d 316, 

327 (2015) (quoting United States v. Jones, 759 F.2d 633 (8th Cir. 1985)), that whether a detention 

is reasonable under the circumstances depends on a multitude of factors including:

“‘[T]he number of officers and police cars involved, the nature of the crime and whether 

there is reason to believe the suspect might be armed, the strength of the officers’

articulable, objective suspicions, the erratic behavior of or suspicious movements by the 
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persons under observation, and the need for immediate action by officers and lack of 

opportunity for them to have made the stop in less threatening circumstances.’”

In this case, it is uncontroverted that Alesch responded to a dispatch call for a possible 

burglary in-progress within minutes of the call. The reporting party heard scraping at their door, 

and damage to the door was discovered. The limited information within the initial dispatch call 

did not indicate one way or another whether the suspect was armed and dangerous. Upon arrival 

at the apartment complex from which the report was made, Alesch noticed only one individual in 

the nearby vicinity, later identified as Gem, who also matched the description of wearing a “gray 

hoodie or sweatshirt” given by the reporting party. Approximately two or three officers arrived, in 

marked police cruisers, shortly after Alesch. However, Alesch was the only one to make direct 

contact with Gem while the other officers investigated the possible burglary. Alesch testified, and 

the juvenile court found credible, that he conducted a brief pat-down search within minutes of first 

making contact with Gem in order to determine whether Gem had any weapons on his person. 

During the pat-down, Alesch felt a hard object that he determined, from his 23 years of experience 

with the LPD, likely to be a drug pipe.

Based on these facts, and giving the appropriate weight to the fact that the juvenile court 

observed the witnesses and accepted Alesch’s version of the facts over Gem’s, we find that 

Alesch’s pat-down search was a brief, nonintrusive investigatory stop under Terry and did not 

amount to a full custodial arrest requiring probable cause.

As previously mentioned, an investigatory stop “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.” State v. Shiffermiller, 302 Neb. 245, 254, 922 N.W.2d 763, 

773 (2019). “When conducting an investigatory stop, an officer must employ ‘“the least intrusive 

means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”’”

State v. Wells, 290 Neb. at 195, 859 N.W.2d at 326 (quoting Florida v. Royer, 460 U.S. 491, 103 

S. Ct. 1319, 75 L. Ed. 2d 229 (1983)).

In this case, Alesch responded to a possible burglary in-progress call within minutes. Upon 

arrival at the scene, he noticed Gem, who matched the description given by the reporting party, as 

the only person within the vicinity. Gem was walking approximately 75 yards north of the 

apartment complex where the call had been made. Alesch stopped Gem, when he was still 

suspected of the possible burglary, and conducted a pat-down search within “the first few minutes”

of making contact to ensure Gem did not have any weapons on his person. During the pat-down, 

Alesch located a “hard object” that, based on his experience, he determined was likely a drug pipe. 

Based on these facts, and the uncertainty of whether Gem was armed and dangerous, we find that 

Alesch’s conduct in performing the investigatory stop, and subsequent search for officer safety, 

was reasonable in both scope and duration and did not exceed the bounds of the Fourth 

Amendment.

The juvenile court also found, and Gem argues that such finding was in error, that Gem 

voluntarily consented to the search of his person when asked by Alesch whether he could perform 

the pat-down. However, we need not address the issue of consent because we have already 

determined that Alesch’s conduct was reasonable under the progeny of Terry v. Ohio, 392 U.S. 1, 
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88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and the Fourth Amendment, irrespective of whether 

consent was given. An appellate court is not obligated to engage in an analysis that is not necessary 

to adjudicate the case and controversy before it. State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 

(2019).

FRUIT OF POISONOUS TREE DOCTRINE

Gem next argues that even if we were to find that the search by Alesch was consensual, the

physical evidence and statements should nevertheless be suppressed as “fruit of the poisonous 

tree.” However, this argument is wholly contingent on a finding that Gem’s Fourth Amendment 

rights were violated. The “fruit of the poisonous tree” doctrine provides that “[e]vidence obtained 

as the direct or indirect ‘fruit’ of an illegal search or seizure, ‘the poisonous tree,’ is inadmissible 

in a state prosecution and must be excluded.” In re Interest of Ashley W., 284 Neb. 424, 440, 821 

N.W.2d 706, 720 (2012) (emphasis supplied). We have already determined that the conduct of law 

enforcement in this case was reasonable as a lawful Terry stop, and that Gem’s Fourth Amendment 

rights were not violated. Because there was no “poisonous tree,” it follows that there is no tainted 

fruit to exclude. This argument fails.

FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION

Gem’s final assignment of error is that certain statements he made in the presence of law 

enforcement should be excluded because they were obtained in violation of Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and his Fifth Amendment privilege against 

self-incrimination. We disagree.

In Miranda v. Arizona, supra, the U.S. Supreme Court set forth certain procedural 

safeguards “to protect individuals from the ‘inherently compelling pressures’ of custodial 

interrogation.” State v. Rogers, 277 Neb. 37, 49, 760 N.W.2d 35, 49 (2009) (quoting Miranda v. 

Arizona, supra). These warnings include the right to remain silent and to have an attorney present 

at questioning. State v. Rogers, supra. At the core of Miranda is protection of the Fifth Amendment 

privilege against self-incrimination. See Miranda v. Arizona, 384 U.S. at 444 (“the prosecution 

may not use statements . . . stemming from custodial interrogation of the defendant unless it 

demonstrates the use of procedural safeguards effective to secure the privilege against 

self-incrimination”).

The safeguards provided by Miranda come into play whenever a person in custody is 

subjected to either express questioning or its functional equivalent. State v. Landis, 281 Neb. 139, 

794 N.W.2d 151 (2011). Miranda warnings are required only when there has been such a 

restriction on one’s freedom as to render one “in custody.” Id. A person is in custody for purposes 

of Miranda when there is a formal arrest or a restraint on one’s freedom of movement to the degree 

associated with such an arrest. Id.

It is undisputed that Alesch never gave Gem Miranda warnings at any point during their 

interaction. It is also undisputed that upon conducting the pat-down, and locating the “hard object”

in Gem’s pocket, Alesch asked Gem whether the item was a “drug pipe” or a “smoking pipe.”

“Interrogation” under Miranda refers not only to express questioning, but also to any words or 

actions on the part of the police, other than those normally attendant to arrest and custody, that the 
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police should know are reasonably likely to elicit an incriminating response from the suspect. State 

v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010). Surely Alesch’s question to Gem whether the 

object in his pocket was a “drug pipe” or “smoking pipe” falls under this definition.

Nevertheless, in this case, the juvenile court determined that Gem was not in custody when 

questioned and was not otherwise deprived of his freedom of action in any significant way. We 

agree. The record indicates that the conversation between Gem and Alesch took place in the open 

in the parking lot of an apartment complex. Gem was not placed in handcuffs or otherwise 

restricted in movement. Alesch was also the only law enforcement officer to make direct contact 

with Gem. While there is conflicting testimony regarding whether Gem indicated that he was 

running late to catch a bus to class, and whether he asked to leave, the juvenile court found credible 

Alesch’s testimony that Gem did not request to leave and voluntarily responded to Alesch’s 

questioning. When the evidence is in conflict, an appellate court may give weight to the fact that 

the lower court observed the witnesses and accepted one version of the facts over the other. In re 

Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018). Because we agree that Gem was not 

subject to the restraint of freedom ordinarily associated with a traditional arrest, we find that Gem’s 

Fifth Amendment privilege against self-incrimination was not violated, and this argument fails.

CONCLUSION

We find that the juvenile court did not err in overruling Gem’s motion to suppress evidence 

and statements. Accordingly, the judgment of the juvenile court adjudicating Gem pursuant to 

§ 43-247(1) is affirmed.

AFFIRMED.