                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          STATE V. BRYNER


  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).


                                  STATE OF NEBRASKA, APPELLEE,
                                                  V.

                                  CURTIS J. BRYNER, APPELLANT.


                             Filed October 25, 2016.    No. A-15-1193.


       Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
       F. Matthew Aerni, of Berry Law Firm, for appellant.
       Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.


       MOORE, Chief Judge, and PIRTLE, Judge, and MCCORMACK, Retired Justice.
       MOORE, Chief Judge.
                                         INTRODUCTION
        Curtis J. Bryner appeals from his conviction in the district court for Lancaster County for
possession of marijuana with intent to deliver. Bryner asserts that the district court erred in finding
that he was not unreasonably seized following the traffic stop and in failing to suppress the
evidence obtained subsequent to the traffic stop. Because we find no error by the district court, we
affirm.
                                          BACKGROUND
        Following a traffic stop on January 9, 2015, during which marijuana was discovered in
Bryner’s vehicle, a complaint was filed charging Bryner with possession of marijuana with intent
to deliver, a Class III felony pursuant to Neb. Rev. Stat. § 28-416(1),(2)(b) (Cum. Supp. 2014).
See, also Neb. Rev. Stat. § 28-405 (Cum. Supp. 2014). Class III felonies were punishable at the




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time of the offense by up to 20 years’ imprisonment, a $25,000 fine, or both, with a minimum
penalty of 1 year imprisonment. Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2014).
         Bryner filed a motion to suppress all evidence obtained after the conclusion of the January
9 traffic stop. On May 19, 2015, a hearing was held on the motion to suppress. The State offered
into evidence the video recording of the traffic stop and subsequent events. Testimony was given
by two law enforcement officers and Bryner. The following evidence was adduced at the
suppression hearing.
                                          TRAFFIC STOP
        During the morning of January 9, 2015, Deputy Jason Mayo of the Lancaster County
Sheriff’s Office, while stationed in his police cruiser along the interstate, observed a red Nissan
being driven in excess of the speed limit. After visually estimating the vehicle to be speeding,
Mayo pulled behind the vehicle and obtained two speed readings, the first at 75 m.p.h. and the
second at 70 m.p.h. The vehicle was traveling through a 55 m.p.h. construction zone.
        Mayo activated the cruiser’s lights and pulled the vehicle over. During this time, Mayo
also called Deputy Henkel, a police canine handler, who arrived at the scene shortly thereafter.
Mayo contacted Henkel because both deputies worked together on the interstate and sometimes
call upon each other during traffic stops.
        The traffic stop was recorded by an in-car video camera contained within Mayo’s cruiser,
with audio supplied through microphones worn on Mayo’s person and located within the cruiser.
Mayo approached the vehicle and made contact with the driver, Bryner. Mayo requested that
Bryner accompany him back to the police cruiser to fill out paperwork pertaining to the traffic
violation. Bryner sat in the front seat of the cruiser.
        While in the cruiser, Mayo ran a check on Bryner’s license, checked for any outstanding
warrants, made small talk with Bryner regarding the weather, and asked several questions
concerning his trip over the next couple of minutes. Also during this time, Henkel arrived at the
scene, checked something on the vehicle, spoke to Mayo, and returned to his police cruiser.
        During this conversation, Bryner provided various information to Mayo. Bryner stated that
he lived in Happy Camp, California. Mayo noted in his subsequent investigation report that this
region of California is known for growth and trafficking of high grade marijuana. Mayo asked
Bryner what the closest large city was to his residence, to which he replied Medford, Oregon.
Mayo reported recognizing this area from prior policing experience as a location where marijuana
is commonly produced and trafficked.
        Bryner told Mayo he was employed as an in-home caregiver for two individuals in
California. He claimed to be traveling on a 2-week vacation to Chicago, Illinois and Oklahoma
City, Oklahoma to visit family.
        Mayo observed that the vehicle was a rental, and had a “lived in look” based on the
presence of food wrappers. The vehicle appeared to contain only a single backpack, with no other
luggage visible. Mayo determined during the stop that the vehicle was only being rented for one
week. Mayo later testified that rental cars are often used to transport drugs.
        Mayo left his cruiser and checked something on the vehicle, spoke with Henkel, then
returned to the cruiser. Upon returning to the cruiser, Mayo spoke with Bryner regarding speed



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limits between Lincoln and Omaha, issued a warning to Bryner, then discussed various aspects of
the warning. Mayo concluded the traffic stop by asking Bryner if he had any questions about the
warning, and then handing him the paperwork. Mayo did not expressly inform Bryner that he was
free to leave at this time.
                                REQUEST TO REMAIN AND ANSWER
                                    ADDITIONAL QUESTIONS
        Immediately after giving Bryner the warning, Mayo asked Bryner if he would be willing
to answer a few additional questions. Specifically, Mayo asked Bryner, “before you roll out can I
ask you a couple really quick questions real fast before you go?” Mayo stated that Bryner had
“been more than decent” with him, and asked if Bryner would be “cool with that.” Bryner replied
by stating “yeah.” Mayo expressed to Bryner that he has the opportunity to speak with all kinds of
people, and that very rarely are they involved in something illegal. However, Mayo explained that
he has to ask, as it is his job.
        First, Mayo asked if Bryner was transporting any large amounts of cocaine,
methamphetamine, or heroin, which Bryner denied. Next, Mayo asked if Bryner was transporting
large amounts of marijuana. Mayo claims that Bryner “paused and almost choked” before saying
no. Mayo then asked if Bryner had any large amounts of money. Bryner replied that he just had a
debit card and laughed.
                            REQUESTS TO CONDUCT VEHICLE SEARCH
                                  AND POLICE CANINE SNIFF

        Following this line of questioning, Mayo told Bryner he appreciated his time, then
requested consent from Bryner to do a quick search of the vehicle for any of the aforementioned
items. Bryner replied that Mayo did not need to search the vehicle.
        Mayo asked Bryner if he was responsible for everything in the vehicle. Bryner replied
“yeah my bags.” Mayo had previously noticed three fingermarks on the trunk of the vehicle, which
appeared fresh when compared to the dirt on the vehicle. Based on this observation, Mayo asked
if Bryner had been in the trunk, mentioning the finger marks, which Bryner denied. Bryner stated
that the marks were not his. Mayo then clarified that Bryner did not want him to search the vehicle,
which Bryner confirmed. Mayo noted in his subsequent report that Bryner was “extremely nervous
and shaking” while Mayo spoke to him about the contents of the vehicle.
        Following these denials by Bryner of consent to search the vehicle, Mayo asked Bryner if
he would be opposed to having a trained police canine walk around the exterior of the vehicle,
mentioning that the canine detects the odor of narcotics. Bryner consented, stating that “[Mayo]
could do that.” Henkel proceeded to walk the police dog around the vehicle. On the third lap around
the vehicle, the dog alerted to the presence of narcotics in the trunk. Henkel informed Bryner that
the canine indicated there was an odor of narcotics coming from the trunk, and Bryner admitted
there was marijuana in the trunk. Henkel and Mayo then searched the vehicle, locating 19
heat-sealed baggies of marijuana in the trunk, totaling to approximately 22 pounds.
        Mayo testified that if Bryner had declined to stay and speak further after the traffic stop
had concluded, he would have let him leave. However, after learning additional information during




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this post-stop conversation with Bryner, if Bryner had not consented to the police canine sniff,
Mayo would have detained him because he was suspicious that Bryner was involved in criminal
activity and believed that he had reasonable suspicion at this time to detain him. Bryner testified
that he did not feel free to leave after Mayo gave him the warning and began to ask additional
questions, or at any other point during his contact with Mayo.
         On September 8, 2015, the district court issued an order overruling the motion to suppress.
The court found that Bryner consented to additional questioning by Mayo after the traffic stop
concluded and consented to the police canine sniff and therefore Bryner was not unreasonably
seized.
         On October 21, 2015, a stipulated bench trial was held. The State offered into evidence the
traffic stop video, Mayo’s supplementary investigation report, and a lab report confirming that the
substance located in the vehicle was marijuana. Bryner objected to the admission of this evidence
on the same basis presented within his earlier motion to suppress. The district court overruled these
objections and received these exhibits into evidence. At the conclusion of this hearing, Bryner was
found guilty of the charged offense beyond a reasonable doubt. On December 17, 2015, Bryner
was sentenced to imprisonment for a period of 1 to 2 years.
         Bryner subsequently perfected this appeal.
                                   ASSIGNMENTS OF ERROR
       Bryner assigns, restated, that the district court erred in finding that he was not unreasonably
seized when (1) Mayo requested Bryner remain and answer additional questions after the traffic
stop was completed, and (2) Mayo requested to conduct a police canine sniff after Bryner denied
consent to search his vehicle.
                                    STANDARD OF REVIEW
        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. State v. Tyler, 291 Neb. 920, 870
N.W.2d 119 (2015).
        Likewise, we apply the same two-part analysis 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. Id.
                                            ANALYSIS
        The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska
Constitution protect individuals against unreasonable searches and seizures by the government.
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). It is well settled under the Fourth
Amendment that warrantless searches and seizures are per se unreasonable, subject to a few




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specifically established and well-delineated exceptions. State v. Tucker, 262 Neb. 940, 636 N.W.2d
853 (2001).
        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. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010). 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. Hedgcock, 277 Neb. 805, 765
N.W.2d 469 (2009).
        It is a longstanding principle of law in Nebraska that police-citizen encounters involving
no restraint of the liberty of the citizen involved, but, rather, the voluntary cooperation of the
citizen elicited through noncoercive questioning, do not rise to the level of a seizure. In re Clinton
G., 12 Neb. App. 178, 669 N.W.2d 467 (2003) (citing State v. Burdette, 259 Neb. 679, 611 N.W.2d
615 (2000)). Stated another way, a seizure does not occur simply because a law enforcement
officer approaches an individual and asks a few questions or requests permission to search an area,
even if the officer has no reason to suspect the individual is involved in criminal activity, provided
the officer does not indicate that compliance with his or her request is required. State v. Anderson,
258 Neb. 627, 605 N.W.2d 124 (2000), overruled on other grounds. See, also, State v. Hedgcock,
supra.
        The right to be free from unreasonable searches and seizures may be waived by consent of
the citizen. State v. Reinpold, 284 Neb. 950, 824 N.W.2d 713 (2013). In order for a consent to
search to be effective, it must be a free and unconstrained choice and not the product of a will
overborne. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012). Consent must be given
voluntarily and not as the result of duress or coercion, whether express, implied, physical, or
psychological. State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005). Mere submission to
authority is insufficient to establish consent to a search. Tucker, supra.
        The Fourth Amendment does not require that a lawfully seized defendant be advised that
he or she is legally “free to go” before the defendant’s consent to search will be recognized as
voluntary. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000). An officer need not give any
warning to a citizen that he or she may freely refuse a request to search. Id.
        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. Turner, 23 Neb. App. 897, 880
N.W.2d 403 (2016) (citing State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997)). The burden is
upon the government to prove that a consent to search was voluntarily given. Turner, supra. (citing
State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990)).
                          ADDITIONAL QUESTIONING AFTER TRAFFIC STOP
       Bryner argues that once the traffic stop was completed, the authority for the initial seizure
ended. He asserts that the request to remain in the police cruiser to answer additional questions
was a new seizure, because a reasonable person would not feel free to leave under such




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circumstances. Further, Bryner contends that this seizure was unreasonable, in part because Mayo
had no reasonable suspicion to justify detaining Bryner for the purpose of additional questioning.
         The State in turn argues that because Bryner voluntarily consented to remain in the cruiser
following the conclusion of the traffic stop, there was no unreasonable seizure under the Fourth
Amendment. The State asserts that a reasonable person in Bryner’s position would have felt free
to decline the request for additional questioning and leave.
         Upon our review of record, we find that the district court did not err in concluding Bryner
waived the right to be free from unreasonable seizure. Regardless of whether Mayo’s actions
following the traffic stop amounted to a seizure, Bryner’s clear, voluntary consent to answer
additional questions amounted to such a waiver.
         The totality of the circumstances, particularly as shown through the recording admitted at
trial, contain no indication that Bryner’s consent was the result of duress or coercion. Mayo
concluded the traffic stop by providing Bryner with a warning and corresponding paperwork.
Mayo then asked if Bryner would be willing to answer additional questions, to which he agreed.
Mayo’s tone of voice was friendly and non-confrontational. Because Bryner’s consent was given
voluntarily, he waived any argument that he was unreasonably seized.
         The district court’s finding that Bryner voluntarily consented to further questioning
following the traffic stop was not clearly erroneous.
         Bryner’s first assignment of error is without merit.
                            REQUESTS FOR CONSENT TO SEARCH AND
                               CONDUCT POLICE CANINE SNIFF
        Bryner argues that he was also unreasonably seized when, after he twice denied consent to
search the vehicle, Mayo asked if he would consent to a police canine sniff. Bryner asserts that his
consent to the dog sniff was invalid, because such consent was a mere submission to authority.
Furthermore, Bryner claims that Mayo lacked reasonable suspicion such that would allow
detention in the absence of valid consent.
        The State responds by arguing that Bryner voluntarily consented to the police canine sniff,
based in part on the casual and nonthreatening tone utilized by Mayo during his requests for
consent. Alternatively, the State asserts that even if the consent was invalid, Mayo had reasonable
suspicion sufficient to detain Bryner at the point of requesting a dog sniff. See Anderson, 258 Neb.
at 635. (when no seizure occurs, such as in the event that voluntary consent is given, reasonable
suspicion is not required).
        Upon our review of record, we find that the district court did not err in concluding Bryner
waived the right to be free from unreasonable seizure when he consented to Mayo’s request to
perform a dog sniff.
        Bryner’s consent to the dog sniff was not a mere submission to authority. There is no
indication from the record that this decision was the result of Bryner’s will being overborne or
influenced by duress or coercion. Bryner previously denied Mayo’s requests to personally search
the vehicle, which denials were honored. Between the denials of consent to search the vehicle and
Mayo’s request to perform the dog sniff, his tone remained polite and unthreatening. Further, the
length of time during which the questioning and requests for consent occurred was short. Based



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upon these circumstances, Bryner could have reasonably believed that a denial of the request to
allow the dog sniff would be honored.
        Lastly, because Bryner’s consent was valid, it is unnecessary for this court to consider
whether reasonable suspicion existed justifying the detention of Bryner during this period. See
Flores v. Flores-Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015) (an appellate court is not
obligated to engage in an analysis that is not necessary to adjudicate the case and controversy
before it).
        The district court’s finding that Bryner voluntarily consented to the police canine sniff was
not clearly erroneous.
        Bryner’s second assignment of error is without merit.
                                          CONCLUSION
       Upon our review, we find that the district court did not err in denying Bryner’s motion to
suppress. Bryner consented to answering additional questions and the administering of a police
canine sniff after the traffic stop. Therefore, we affirm.
                                                                                      AFFIRMED.




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