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Decisions of the Nebraska Court of Appeals

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STATE v. TURNER

Cite as 23 Neb. App. 897

State of Nebraska, appellee, v. 

Paul J. Turner, appellant.

___ N.W.2d ___

Filed April 12, 2016. No. A-15-472.

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. It is well settled under 

the Fourth Amendment that warrantless searches and seizures are per 

se unreasonable, subject to a few specifically established and welldelineated exceptions.

3. ____: ____. 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.

4. Police Officers and Sheriffs: Search and Seizure. 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 that compliance with the officer’s request might 

be compelled.

5. Search and Seizure: Duress. Consent to search must be voluntarily 

given and not the result of duress or coercion, whether express, implied, 

physical, or psychological.

6. ____: ____. In examining all the surrounding circumstances to determine if in fact a consent to search was coerced, account must be taken 

Nebraska Supreme Court Online Library

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

04/12/2016 09:05 AM CDT
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of subtly coercive police questions, as well as the possibly vulnerable 

subjective state of the person who consents.

7. Search and Seizure. Where both occupants of a jointly occupied premises are physically present, the consent of one occupant to a search is 

insufficient when the other occupant objects to the search.

8. ____. The determination of whether consent to search is voluntarily 

given is a question of fact to be determined from the totality of the 

circumstances.

9. Search and Seizure: Proof. The burden is upon the government to 

prove that a consent to search was voluntarily given.

Appeal from the District Court for Hall County: William T. 

Wright, Judge. Affirmed.

Charles R. Maser for appellant.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellee.

Moore, Chief Judge, and Inbody and Bishop, Judges.

Bishop, Judge.

Following a bench trial in the district court for Hall County, 

Paul J. Turner was convicted of possession of a controlled 

substance (methamphetamine), a Class IV felony, see Neb. 

Rev. Stat. § 28-416(3) (Cum. Supp. 2014); possession of drug 

paraphernalia, an infraction, see Neb. Rev. Stat. § 28-441 

(Reissue 2008); and possession of marijuana of 1 ounce or less, 

an infraction, see § 28-416(13)(a). He appeals, contending the 

district court erred in overruling his pretrial motion to suppress 

evidence seized during an allegedly unconstitutional search 

of his apartment. He further argues that without the evidence 

resulting from the search, there was insufficient evidence to 

establish his guilt. We affirm.

BACKGROUND

On January 21, 2014, Turner was charged by information 

in the district court for Hall County with possession of a 
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STATE v. TURNER

Cite as 23 Neb. App. 897

methamphetamine (count I), possession of drug paraphernalia (count II), and possession of 1 ounce or less of marijuana 

(count III). In a separate information filed in the district court 

for Hall County on the same date, Turner’s girlfriend, Shannon 

K. Bond, was charged with possession of methamphetamine. 

Turner’s and Bond’s offenses allegedly occurred on December 

3, 2013, in Hall County, Nebraska.

On May 14, 2014, Turner filed a motion to suppress evidence seized during an allegedly unconstitutional search of 

his apartment on December 3, 2013. He further requested 

that any statements he made be suppressed, alleging the 

statements were not freely and voluntarily made. On May 

28, 2014, Bond filed a nearly identical motion to suppress in 

her case.

Turner and Bond, both of whom were represented by counsel, agreed to a consolidated evidentiary hearing on their 

motions to suppress; the hearing was held on July 17, 2014. 

Investigator Sarah Mann of the Grand Island Police Department 

testified as follows: On December 2, 2013, she went to an 

address on North Walnut Street in Grand Island, Nebraska, 

in response to a child abuse hotline intake indicating possible drug use in front of minor children at the address. Upon 

arriving, she knocked on the door and heard no response. She 

returned around 1 p.m. the next day, December 3, with Chelsea 

Willden, an employee of the Nebraska Department of Health 

and Human Services (DHHS). Investigator Mann realized the 

door on which she had knocked the prior day led to a staircase, 

and she opened the door and ascended the stairs. At the top of 

the stairs was the door to an apartment. She knocked on the 

door and heard a male voice say, “Come in.” She continued 

knocking, and Turner opened the door.

According to Investigator Mann, she identified herself and 

Willden, explained they had received a complaint, and asked 

if they could “come in and chat with him about it.” Turner 

said yes and invited them inside. Mann and Willden talked to 

Turner about the allegations, and then Bond exited a bedroom 
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and joined the conversation. Mann and Willden explained the 

allegations to Bond. At some point during this interaction, 

Investigator Mann saw an individual whom she identified 

as Dennis Castro sitting in the living room; she learned that 

Castro had a warrant for his arrest and requested a patrol unit 

to transport Castro to the jail. Waiting for the patrol unit “took 

up some time.”

After Castro was transported away, Royal Kottwitz, another 

investigator with the Grand Island Police Department, noticed 

a backpack on the living room floor. (On cross-examination, 

Mann clarified that Investigator Kottwitz was with her and 

Willden when they arrived at the apartment on December 3, 

2013.) Neither Turner nor Bond knew who owned the backpack, and both agreed it could be searched. Upon opening 

the backpack, Investigator Mann located among other items 

a hypodermic needle, a small baggie of what appeared to be 

marijuana, and a glass pipe with white residue. Based on her 

training and experience, Investigator Mann believed the glass 

pipe was a “meth pipe.”

Investigator Mann explained that after finding the items in 

the backpack, there was a discussion about consent to search 

the apartment. Bond wanted to give consent, but Turner did 

not. There was a discussion “amongst officers” about whether 

to seek a search warrant. Bond then asked if she could go 

to the bathroom and asked Investigator Mann to accompany 

her. In the bathroom, Bond “was pretty worked up” and 

told Investigator Mann she would give up “everything” and 

“wanted to know if that would kind of make all this go away.” 

Investigator Mann told Bond she could not answer that question because she did not know what Bond had. The two women 

left the bathroom, and Bond led Investigator Mann into the 

bedroom, where Bond pulled two pipes and a baggie out of 

her purse. Bond handed the pipes to Investigator Mann and 

said, “This is my marijuana pipe,” and, “This is my meth 

pipe.” The baggie had a white residue that appeared to be 

methamphetamine.
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After Bond handed the items to her, Investigator Mann 

told Bond she still wanted to search the apartment. They 

returned to the living room, and Bond conversed with Turner. 

According to Investigator Mann, Turner and Bond could not 

agree whether to give consent and “kind of went back and 

forth.” Every now and then, Investigator Mann would tell 

them “time’s ticking” and ask for a decision. Eventually, 

Investigator Mann informed Turner and Bond she was leaving to apply for a search warrant, but Bond asked her to 

wait. After Turner and Bond still could not reach a decision, 

Investigator Mann said “time’s up” and left to seek a search 

warrant. Prior to leaving, she patted Turner down for weapons, 

but located none.

Investigator Mann testified that Officer Wesley Tjaden 

arrived to “stand by to make sure no evidence was destroyed” 

while she sought a search warrant. Investigator Mann returned 

to the police department and had nearly completed her warrant application when Officer Tjaden called to inform her 

that Turner and Bond had decided to consent to the search. 

Investigator Mann, who had not completed the warrant application, returned to the apartment, and Turner and Bond verbally 

consented to a search and signed consent-to-search forms. The 

forms were received into evidence; Bond signed her form at 

4:05 p.m., and Turner signed his form at 4:10 p.m.

During the subsequent search of the apartment, Investigator 

Mann located a makeup or cosmetic bag containing drug paraphernalia and what she believed to be methamphetamine. The 

bag was located in a magazine rack in the master bedroom, 

on the side of the bed that Bond indicated was hers. In the 

nightstand on the other side of the bed, Investigator Kottwitz 

located a glass marijuana pipe, a marijuana grinder, two broken glass pipes, and a “blue pencil torch.” Other drug-related 

items were located in other places in the master bedroom, 

including a baggie containing a white crystalline substance 

on the desk and folded up tinfoil with white residue in the 

trash can.
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Investigator Mann testified that after locating the items during the search, she gave Turner warnings pursuant to Miranda 

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

(1966), and that he signed a form waiving his rights. The form 

was received into evidence and indicated Turner signed the 

form at 5:15 p.m. When Investigator Mann then asked Turner 

if the items in the magazine rack were his, Bond spoke up and 

said they were hers. Investigator Mann placed Turner and Bond 

under arrest.

Upon further questioning, Investigator Mann testified that 

when she returned to the apartment after leaving to prepare the 

search warrant application, Officer Tjaden told her Turner had 

been “manipulating something in his pocket” the entire time 

she was gone. Investigator Mann asked for consent to search 

Turner’s person, and he denied consent. Later, either before 

or after Turner signed the consent-to-search form (Investigator 

Mann believed it was after but she was not sure), Turner “stuck 

his hands in his pocket real quick,” and the investigators asked 

him to remove his hands. At that point, Turner said he was 

going to empty his pockets, which he did. Turner pulled out a 

black bag with two glass pipes with white residue, two metal 

“pen pipes,” seven baggies with white residue, a baggie with a 

white crystalline substance, and two cell phones.

On cross-examination, Investigator Mann testified that 

prior to going to Turner and Bond’s apartment, she and 

Willden interviewed Turner’s 10- and 11-year-old sons at their 

schools. Neither boy reported witnessing drug use at home. 

Investigator Mann also spoke with the boys’ mother (who was 

not Bond), and the mother expressed concern that Turner and 

Bond were “currently using.” The mother, who had custody of 

the boys, did not know what occurred during the boys’ visits 

with Turner.

Also on cross-examination, Investigator Mann explained that 

the door on which she knocked on December 2, 2013, was “an 

outside door off the sidewalk of the business district” in Grand 

Island. Although she did not recall there being a doorbell, she 
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was shown her police report in which she reported that she 

rang a doorbell next to the outside door. When she returned 

on December 3, she realized that because the apartment was 

in a business district, the door must lead to a staircase to the 

upstairs apartment. When she opened the door, she saw an 

enclosed staircase leading to another door. The stairs did not 

appear to be the interior of someone’s home. She did not recall 

seeing any personal belongings on the stairs.

Investigator Mann also explained that when she discussed 

the allegations of the hotline report with Turner and Bond, they 

showed her the children’s sleeping area and Turner and Bond’s 

food supply in the kitchen. Nothing Investigator Mann saw 

caused her concern over the children’s care.

Still on cross-examination, Investigator Mann estimated that 

when Turner and Bond were discussing whether to consent to a 

search of the apartment, she inquired three to four times as to 

whether they had made a decision.

Officer Tjaden testified that on December 3, 2013, he was 

called to an apartment on North Walnut Street in Grand Island 

to arrest Castro and transport him to jail. After he transported Castro, he returned to the apartment to “stand at the 

residence” while Investigator Mann obtained a search warrant. 

After Investigator Mann left, the only persons in the apartment 

were Officer Tjaden, Turner, and Bond. Officer Tjaden stood 

in the doorway of the living room, and Turner and Bond sat on 

the couch in the living room. Neither Turner nor Bond asked 

or attempted to leave, and the officer did not tell them they 

were not free to do so. Officer Tjaden observed Bond “begging and pleading” with Turner to give consent to search the 

apartment. The officer never discussed the subject of consent 

to search with them. At some point, Turner and Bond told the 

officer they had decided to give consent to search. He radioed 

Investigator Mann to return to the apartment. Officer Tjaden 

estimated he was at the apartment for 45 minutes to 1 hour 

during the time Investigator Mann was preparing her search 

warrant application.
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On cross-examination, Officer Tjaden recalled seeing “stuff 

lined up on either side of the stairwell,” but he did not remember what it was. He also testified he was 6 feet 3 inches tall 

and weighed close to 260 pounds. While in the apartment, 

he was in full uniform with his service weapon displayed on 

his person.

The State rested, and Turner and Bond called Willden as 

their first witness. Willden’s testimony concerning the events 

of December 2 and 3, 2013, was largely consistent with 

Investigator Mann’s testimony. However, she testified that 

Bond answered the apartment door, not Turner as Investigator 

Mann testified. Willden testified that following the visit to 

the apartment, DHHS closed the investigation into the hotline 

report as “unfounded.”

Turner and Bond next called Investigator Kottwitz. He testified that when he arrived at the apartment with Investigator 

Mann and Willden on December 3, 2013, they were unsure 

whether the street-level door “led to the residence or led to 

multiple apartments on the second level.” Investigator Kottwitz 

testified he opened the unlocked door and saw a stairway leading to a second door. He recalled seeing “minimal property” on 

the stairs. The remainder of his testimony was consistent with 

Investigator Mann’s testimony.

On August 14, 2014, the court entered a written order overruling Turner’s and Bond’s motions to suppress. The court 

found that when the investigators and Willden approached the 

apartment for purposes of inquiring about the hotline report, 

they were engaging in a “‘knock and talk’” and did not require 

a warrant. The court further found that while one might argue 

the stairway was part of the “‘curtilage’” of the apartment, 

there was no indication Turner and Bond had a reasonable 

expectation of privacy in the stairway, and the evidence suggested it was expected for a visitor to climb the stairway and 

knock on the upstairs door. The court noted Turner’s lack of 

surprise when Investigator Mann knocked on the upstairs door, 

given that Turner’s response was “‘come in.’”
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Turning to the issue of consent to search, the court found 

that either Turner or Bond consented to the initial entry into 

the apartment. The court then found that Turner and Bond 

consented to the search of the backpack and that Bond invited 

Investigator Mann to the bathroom and bedroom, where Bond 

gave Investigator Mann drug paraphernalia and items with 

drug residue on them. Even though Turner had not consented 

to a search of the apartment at that time, the court noted that 

Turner was not the target of a search when Investigator Mann 

accompanied Bond to these areas and that Bond had “‘common 

authority’” over the apartment.

Addressing the ultimate search of the entire apartment, the 

court found it to be the only “potentially problematic” search. 

The court noted Turner and Bond did not sign the consentto-search forms until law enforcement officials had been in 

and out of the apartment for approximately 3 hours. This 

time period was prolonged due to Castro’s arrest, the discussion between Turner and Bond regarding consenting to the 

search, and Investigator Mann’s departure to seek a search 

warrant. The court found that “the vast majority of the time 

officers spent in the residence was the result of Bond’s efforts 

to secure Turner’s consent.” Furthermore, the court found that 

“[i]f anyone overbore Turner’s will, it was Bond, not the officers in question.” The court upheld the consensual search of 

the apartment.

The court also found no constitutional violations in Turner’s 

act of voluntarily emptying his pockets. In addition, the court 

found that any statements made by Turner and Bond either 

were volunteered without custodial inquiry or followed the 

voluntary waiver of rights under Miranda v. Arizona, 384 U.S. 

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

At Turner and Bond’s request, the matter proceeded to a 

consolidated bench trial on December 22, 2014. Investigators 

Mann and Kottwitz testified consistently with their testimony 

at the suppression hearing. In addition, a forensic scientist from 

the Nebraska State Patrol crime laboratory testified concerning 
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her testing of the suspected drugs seized from the apartment, 

which tested positive for marijuana and methamphetamine. 

After an evidence technician provided testimony concerning 

the chain of custody, the drugs and drug paraphernalia seized 

from the apartment were received into evidence.

The court found Turner guilty of possession of methamphetamine (count I), possession of drug paraphernalia (count 

II), and possession of 1 ounce or less of marijuana (count III). 

After the court sentenced Turner to 20 to 60 months’ imprisonment on count I, and fines of $100 each on counts II and III, 

Turner timely appealed to this court.

ASSIGNMENTS OF ERROR

Turner assigns (1) that “[t]here was insufficient evidence 

to sustain the conviction,” (2) that his motion to suppress 

“should have been sustained,” and (3) “[a]ny other improper 

evidentiary rulings that took place during the Trial.” Because 

Turner offers no argument in support of his third assignment 

of error, we do not consider it. See State v. Huston, 291 Neb. 

708, 868 N.W.2d 766 (2015) (to be considered by appellate 

court, alleged error must be specifically assigned and argued). 

Furthermore, Turner’s only argument in support of his first 

assignment of error is that without the evidence challenged 

in his motion to suppress, there was no evidence to prove his 

guilt of the offenses charged; he does not contend that the 

evidence, if properly admitted, was insufficient. Therefore, the 

success of Turner’s appeal hinges on his second assignment 

of error.

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, 

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

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

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

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

court’s determination. Id.

ANALYSIS

Turner challenges the search of his and Bond’s apartment 

on a number of grounds. He contends that after Investigator 

Mann and Willden interviewed Turner’s sons, they should 

have ceased their investigation into the hotline report of 

possible drug use in front of the children; he maintains law 

enforcement did not have probable cause to continue the 

investigation beyond that point. He further argues the investigators “without authorization entered what should be considered a porch area wherein they should not have entered 

without invitation.” Brief for appellant at 16. He contends the 

3-hour period during which law enforcement was in the apartment prior to obtaining consents to search was an unreasonable and “excessively long seizure and detention.” Id. Turner 

asserts his and Bond’s wills were overborne, resulting in 

coerced consents.

[2] It is well settled under the Fourth Amendment that 

warrantless searches and seizures are per se unreasonable, 

subject to a few specifically established and well-delineated 

exceptions. State v. Tucker, 262 Neb. 940, 636 N.W.2d 853 

(2001). One well-recognized exception is a search undertaken 

with consent. Wells, supra. To be effective under the Fourth 

Amendment, consent must be voluntary; in other words, it 

must be a free and unconstrained choice, not the result of 

a will overborne. See Tucker, supra. In addition, where a 

consensual search follows an illegal entry, as Turner alleges 

occurred here, a court must determine whether the consent 

was an exploitation of the prior illegality. See State v. Gorup, 

279 Neb. 841, 782 N.W.2d 16 (2010). The search will be 

upheld only if the State has shown a sufficient attenuation, or 

break in the causal connection, between the illegal conduct 

and the consent to search. See id. Because any illegality in the 

investigators’ entry into the stairway or apartment will require 
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us to address the issue of attenuation, we address the legality 

of the entries before addressing the voluntariness of the consents to search.

We begin with the entry into the stairway leading to the 

upstairs apartment door. The Nebraska Supreme Court has 

explained that the degree of privacy society is willing to 

accord an apartment hallway depends on the facts, such as 

whether there is an outer door locked to the street which 

limits access, the number of residents using the hallway, the 

number of units in the apartment complex, and the presence 

or absence of no trespassing signage. State v. Ortiz, 257 Neb. 

784, 600 N.W.2d 805 (1999). In this case, the upstairs apartment was located in a business district and the street-level 

door was unlocked. However, the street-level door led to one 

apartment only; thus, the stairway was not shared among multiple tenants. Turner suggests the enclosed stairway “should 

be considered a porch area” in which he and Bond had an 

expectation of privacy, brief for appellant at 16, and we see 

no reason not to accept his invitation to treat it as such for 

purposes of argument.

“The front porch is the classic exemplar of an area adjacent 

to the home and ‘to which the activity of home life extends.’” 

Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1415, 185 

L. Ed. 2d 495 (2013), quoting Oliver v. United States, 466 

U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). Although 

a front porch is therefore a constitutionally protected area, 

a police officer does not engage in an “unlicensed physical 

intrusion” by entering that area to knock on the front door. 

Jardines, 133 S. Ct. at 1415. See, also, Kentucky v. King, 563 

U.S. 452, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) (law 

enforcement officers not armed with warrant may knock on 

door, because they do no more than any private citizen might 

do). This is because a visitor, including a police officer, has 

an implicit license to “approach the home by the front path, 

knock promptly, wait briefly to be received, and then (absent 

invitation to linger longer) leave.” Jardines, 133 S. Ct. at 1415. 
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It is only when an officer exceeds the scope of that license, 

such as by using a trained police dog to search the front porch 

for incriminating evidence, that a Fourth Amendment violation 

occurs. See Jardines, supra.

When the investigators and Willden ascended the stairs and 

knocked on the apartment door with the hopes of speaking to 

Turner and Bond about the hotline report, they did nothing to 

exceed the scope of their implicit license to approach the door 

and knock. Any doubt about this conclusion is resolved when 

one considers that Turner’s reaction to the knocking was to say, 

“Come in,” which suggests Turner was not alarmed to have 

visitors knocking on the upstairs door. Thus, even assuming 

arguendo the enclosed stairway was the equivalent of a porch 

area, as Turner suggests, no constitutional violation occurred. 

See State v. Breuer, 577 N.W.2d 41 (Iowa 1998) (holding that 

law enforcement officer without warrant did not unreasonably 

invade suspect’s legitimate expectation of privacy by opening unlocked outer door of apartment building and proceeding 

up stairway to apartment door). Although Turner argues law 

enforcement did not have probable cause to investigate him 

and Bond after an interview of Turner’s sons did not substantiate the hotline report, no probable cause is required for a 

“knock and talk” like the one that occurred here. See King, 

supra (when law enforcement officers not armed with warrant 

knock on door, they do no more than any private citizen might 

do; no Fourth Amendment violation occurs).

We next address the entry into the apartment itself. Generally, 

absent exigent circumstances, a law enforcement officer must 

have a warrant or consent to enter a person’s home. State v. 

Resler, 209 Neb. 249, 306 N.W.2d 918 (1981). As stated, consent must be a free and unconstrained choice, not the result 

of a will overborne. See State v. Tucker, 262 Neb. 940, 636 

N.W.2d 853 (2001). Investigator Mann testified that after 

she knocked on the upstairs door and Turner opened it, she 

identified herself and Willden, explained they had received a 

complaint, and asked if they could “come in and chat with him 
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about it.” Turner said yes and invited them inside. Investigator 

Kottwitz’ testimony was consistent; however, Willden testified it was Bond who invited them inside. Regardless of who 

extended the invitation, there was no evidence that the entry 

into the apartment was anything but consensual; therefore, the 

entry into the apartment was lawful.

We have concluded that the investigators’ entries into the 

stairway and apartment were lawful; however, before we can 

turn to the voluntariness of the consents to search, we must 

address the legality of law enforcement’s presence in the apartment for approximately 3 hours prior to obtaining the consents 

to search. If law enforcement’s presence in the apartment for 

this period constituted an unreasonable and “excessively long 

seizure and detention,” as Turner contends, brief for appellant 

at 16, we will be required to determine whether there was a 

sufficient attenuation between the illegal seizure and the consents to search. See State v. Gorup, 279 Neb. 841, 782 N.W.2d 

16 (2010) (where consensual search follows illegal police conduct, court must determine whether consent was exploitation 

of prior illegality).

[3,4] Generally, 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. State v. Hedgcock, 277 Neb. 

805, 765 N.W.2d 469 (2009). A seizure may occur where an 

officer directly tells a suspect that he or she is not free to go; 

in addition, “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 that 

compliance with the officer’s request might be compelled.” Id. 

at 815, 765 N.W.2d at 479.

At a minimum, no Fourth Amendment seizure occurred during Turner and Bond’s initial interaction with the investigators 

and Willden. The interaction consisted of a lawful entry into 

the apartment, noncoercive questioning regarding the hotline 
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report, and observation of the children’s sleeping area and 

Turner and Bond’s food supply. No reasonable person would 

have believed he or she was not free to leave during this consensual encounter.

Likewise, no Fourth Amendment seizure of Turner and 

Bond occurred when Investigator Mann learned Castro had a 

warrant for his arrest and requested a patrol unit to transport 

Castro to jail. According to Investigator Mann, this process 

“took up some time”; however, Turner and Bond had no reason to believe they were not free to leave merely because 

Castro was being arrested on a warrant unrelated to the hotline 

report investigation.

It was only after Castro was removed from the apartment that the tenor of Turner and Bond’s interaction with the 

investigators changed. After Castro was removed, Investigator 

Kottwitz observed a backpack, of which neither Turner nor 

Bond claimed ownership; inside the backpack, which Turner 

and Bond agreed could be searched, Investigator Mann found 

drug paraphernalia and suspected methamphetamine. There 

was then a discussion about consent to search the apartment 

and a discussion “amongst officers” about whether to seek 

a search warrant. Bond, who unlike Turner wanted to consent to a search of the apartment, requested that Investigator 

Mann accompany her to the bathroom. In the bathroom, Bond 

told Investigator Mann she would give up “everything” and 

“wanted to know if that would kind of make all this go away.” 

After Investigator Mann told Bond she could not answer 

because she did not know what Bond had, Bond led her to the 

bedroom, where she handed the investigator a marijuana pipe, 

a methamphetamine pipe, and a baggie with suspected methamphetamine. Investigator Mann told Bond she still wanted to 

search the apartment, and the two returned to the living room, 

where Bond discussed with Turner whether to give consent. 

Turner and Bond could not agree, and Investigator Mann 

interrupted three or four times to tell them “time’s ticking” 

and asked for a decision. Eventually, Investigator Mann said 
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“time’s up” and left to seek a search warrant while Officer 

Tjaden stood by in the apartment “to make sure no evidence 

was destroyed.”

Even assuming a seizure occurred during the prolonged 

interaction that culminated with Officer Tjaden standing by 

while Investigator Mann left to seek a search warrant, no 

Fourth Amendment violation occurred. In Illinois v. McArthur, 

531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001), 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; they had 

good reason to fear that, unless restrained, the man would 

destroy the drugs before they returned with a warrant; they 

neither searched the trailer home nor arrested the man before 

obtaining a warrant; and they restrained the man for a “limited period of time” of 2 hours. Id., 531 U.S. at 332. The 

Court explained that it had “upheld temporary restraints where 

needed to preserve evidence until police could obtain a warrant,” id., 531 U.S. at 334, 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,” id.

In the present case, unlike in McArthur, supra, police 

did not restrain Turner and Bond outside of their apartment 

while another officer obtained a warrant; instead, after the 

investigators lawfully entered the apartment with the consent 

of Turner and/or Bond, Officer Tjaden stood inside the residence observing Turner and Bond while Investigator Mann 

left to obtain a warrant. However, we see no reason to treat 

the alleged seizure of Turner and Bond inside their apartment 

differently than the seizure that occurred outside the trailer 

home in McArthur. As in McArthur, when Investigator Mann 

left to obtain a search warrant, the investigators had probable 
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Cite as 23 Neb. App. 897

cause to believe the apartment contained drugs. Further, it 

was reasonable for Investigator Mann to believe that if she 

left Turner and Bond unsupervised in the apartment while 

she obtained a warrant, the two would destroy any remaining 

evidence of drugs. Additionally, although Turner characterizes the alleged detention as “excessively long,” brief for 

appellant at 16, it was approximately the same length as, if 

not shorter than, the detention in McArthur. Considering the 

totality of the circumstances, we conclude the investigators’ 

conduct, assuming it constituted a Fourth Amendment seizure, 

was reasonable.

Because we have concluded the investigators’ conduct prior 

to obtaining consents to search was not illegal, we need not 

address the issue of attenuation. Accordingly, we turn to the 

issue of the voluntariness of the consents to search.

[5-7] Consent to search must be voluntarily given and not 

the result of duress or coercion, whether express, implied, 

physical, or psychological. See State v. Tucker, 262 Neb. 940, 

636 N.W.2d 853 (2001). In examining all the surrounding 

circumstances to determine if in fact a consent to search was 

coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of 

the person who consents. State v. Prahin, 235 Neb. 409, 455 

N.W.2d 554 (1990). Mere submission to authority is insufficient. Tucker, supra. Where, as here, both occupants of a 

jointly occupied premises are physically present, the consent 

of one occupant to a search is insufficient when the other 

occupant objects to the search. Georgia v. Randolph, 547 U.S. 

103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006). See, also, 

Fernandez v. California, ___ U.S. ___, 134 S. Ct. 1126, 188 

L. Ed. 2d 25 (2014) (declining to extend Randolph, supra, 

to situation where objecting occupant is absent when another 

occupant consents).

[8,9] The determination of whether consent to search is 

voluntarily given is a question of fact to be determined from 

the totality of the circumstances. State v. Ready, 252 Neb. 
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816, 565 N.W.2d 728 (1997). The burden is upon the government to prove that a consent to search was voluntarily given. 

Prahin, supra.

The district court’s finding that Bond voluntarily consented 

to the search of the apartment was not clearly erroneous. From 

the moment the issue of consent to search the apartment arose, 

Bond wanted to consent to the search; it was only Turner who 

was reluctant. There is no evidence that police pressured or 

coerced Bond to consent to a search. Rather, the evidence 

clearly established that Bond was eager to cooperate with the 

investigators and even voluntarily handed Investigator Mann 

her marijuana pipe, her methamphetamine pipe, and a baggie 

with suspected methamphetamine. Bond’s consent to the search 

was voluntary.

Regarding Turner’s consent to the search, the district court 

found that “[i]f anyone overbore Turner’s will, it was Bond, 

not the officers in question”; this finding was not clearly 

erroneous. There was little to no evidence that the investigators or Officer Tjaden pressured Turner into consenting to a 

search of the apartment. At most, the investigators discussed 

the issue of consent to search with Turner and Bond and told 

them they were leaving to obtain a search warrant after the two 

could not agree on whether to consent. In Tucker, supra, the 

Nebraska Supreme Court 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. Here, there was much less evidence of police 

pressure; in fact, when Turner ultimately agreed to consent 

to a search, the only law enforcement officer present in the 

apartment was Officer Tjaden, who was standing by and never 

discussed the issue of consents to search with the two suspects. 

Turner consented after Bond begged and pleaded with him, not 

upon the prompting of any police officer. The district court 

properly upheld the consensual search of the apartment.
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Cite as 23 Neb. App. 897

Turner also raises some miscellaneous issues we must 

address. He contends that Investigator Mann searched his person on two occasions—once by patting him down for weapons 

prior to leaving to obtain a search warrant and once after she 

returned to the apartment. He contends “[t]hese searches are 

the fruits of the illegal entry and anything resulting from those 

searches is inadmissible.” Brief for appellant at 24. However, 

the evidence at the suppression hearing was that Investigator 

Mann’s first pat down of Turner revealed nothing. Investigator 

Mann further testified that after she returned to the apartment, 

Turner “stuck his hands in his pocket real quick,” and the 

investigators asked him to remove his hands. At that point, 

Turner said he was going to empty his pockets, which he 

did, revealing suspected drugs and drug paraphernalia. As the 

district court determined, Turner’s voluntary emptying of his 

pockets was not a Fourth Amendment search.

Turner also asserts that all statements he made prior to 

receiving warnings pursuant to Miranda v. Arizona, 384 U.S. 

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), resulted from 

custodial interrogation and should be suppressed (he does not 

identify any specific statements). Having reviewed the record, 

we conclude the district court properly determined that Turner 

did not make any statements resulting from custodial interrogation prior to the time he received warnings pursuant to 

Miranda, supra.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court for Hall County.

Affirmed.