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www.nebraska.gov/apps-courts-epub/
07/19/2019 01:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                 STATE v. SCHRINER
                                                 Cite as 303 Neb. 476




                                        State of Nebraska, appellee, v.
                                        Clint W. Schriner, appellant.
                                                    ___ N.W.2d ___

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

                 1. Constitutional Law: Search and Seizure: Motions to Suppress:
                    Appeal and Error. In reviewing a trial court’s ruling on a motion to
                    suppress based on a claimed violation of the Fourth Amendment or
                    the safeguards established by the U.S. Supreme Court in Miranda v.
                    Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an
                    appellate court applies a two-part standard of review. Regarding histori-
                    cal facts, an appellate court reviews the trial court’s findings for clear
                    error. But whether those facts trigger or violate Fourth Amendment or
                    Fifth Amendment protections is a question of law that an appellate court
                    reviews independently of the trial court’s determination.
                 2. Constitutional Law: Search and Seizure: Appeal and Error. When
                    reviewing whether a consent to search was voluntary, as to the historical
                    facts or circumstances leading up to a consent to search, an appellate
                    court reviews the trial court’s findings for clear error. However, whether
                    those facts or circumstances constituted a voluntary consent to search,
                    satisfying the Fourth Amendment, is a question of law, which an appel-
                    late court reviews independently of the trial court. And where the facts
                    are largely undisputed, the ultimate question is an issue of law.
                 3. Police Officers and Sheriffs. There are three tiers of police encounters
                    under Nebraska law.
                 4. Constitutional Law: Police Officers and Sheriffs: Search and
                    Seizure. The first tier of police-citizen encounters involves no restraint
                    of the liberty of the citizen involved, but, rather, the voluntary coopera-
                    tion of the citizen is elicited through noncoercive questioning. This type
                    of contact does not rise to the level of a seizure and therefore is outside
                    the realm of Fourth Amendment protection.
                 5. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
                    Investigative Stops: Search and Seizure: Words and Phrases. The
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                              STATE v. SCHRINER
                              Cite as 303 Neb. 476

      second category of police-citizen encounters, the investigatory stop,
      as defined by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88
      S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive
      detention during a frisk for weapons or preliminary questioning. This
      type of encounter is considered a “seizure” sufficient to invoke Fourth
      Amendment safeguards, but because of its less intrusive character
      requires only that the stopping officer have specific and articulable facts
      sufficient to give rise to reasonable suspicion that a person has commit-
      ted or is committing a crime.
 6.   Constitutional Law: Criminal Law: Police Officers and Sheriffs:
      Arrests: Search and Seizure: Probable Cause. The third type of
      police-citizen encounters, arrests, is characterized by highly intrusive
      or lengthy search or detention. The Fourth Amendment requires that an
      arrest be justified by probable cause to believe that a person has com-
      mitted or is committing a crime.
 7.   Constitutional Law: Search and Seizure. A seizure in the Fourth
      Amendment context occurs only if, in view of all the circumstances sur-
      rounding the incident, a reasonable person would have believed that he
      or she was not free to leave.
 8.   ____: ____. In addition to situations where an officer directly tells a sus-
      pect that he or she is not free to go, circumstances indicative of a seizure
      may include the threatening presence of several officers, the display of a
      weapon by an officer, some physical touching of the citizen’s person, or
      the use of language or tone of voice indicating the compliance with the
      officer’s request might be compelled.
 9.   Constitutional Law: Miranda Rights. Miranda warnings are required
      only where there has been such a restriction on one’s freedom as to ren-
      der one “in custody.”
10.   Arrests: Words and Phrases. Being in custody does not require an
      arrest, but refers to situations where a reasonable person in the defend­
      ant’s situation would not have felt free to leave and, thus, would feel
      the restraint on freedom of movement of the degree associated with a
      formal arrest.
11.   Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
      Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), pro-
      hibits the use of statements derived during custodial interrogation unless
      the prosecution demonstrates the use of procedural safeguards that are
      effective to secure the privilege against self-incrimination.
12.   Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
      For purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
      Ed. 2d 694 (1966), interrogation refers not only to express questioning,
      but also to any words or actions on the part of the police that the police
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                       303 Nebraska R eports
                              STATE v. SCHRINER
                              Cite as 303 Neb. 476

       should know are reasonably likely to elicit an incriminating response
       from the suspect.
13.    Miranda Rights: Evidence. Statements made in a conversation initiated
       by the accused or spontaneously volunteered by the accused are not the
       result of interrogation and are admissible.
14.    Constitutional Law: Warrantless Searches: Search and Seizure.
       Warrantless searches and seizures are per se unreasonable under the
       Fourth Amendment, subject to a few established and well-delineated
       exceptions.
15.    Warrantless Searches. One well-recognized exception to the warrant
       requirement is a search undertaken with consent.
16.    Constitutional Law: Search and Seizure: Duress. To be effective
       under the Fourth Amendment, consent to a search must be a free and
       unconstrained choice, and not the product of a will overborne. Consent
       must be given voluntarily and not as the result of duress or coercion,
       whether express, implied, physical, or psychological.
17.    Constitutional Law: Search and Seizure. The determination of whether
       the facts and circumstances constitute a voluntary consent to a search,
       satisfying the Fourth Amendment, is a question of law.
18.    Search and Seizure. Whether consent to a search was voluntary is to be
       determined from the totality of the circumstances surrounding the giving
       of consent.
19.    Police Officers and Sheriffs: Search Warrants: Search and Seizure.
       A statement of a law enforcement agent that, absent a consent to search,
       a warrant can be obtained does not constitute coercion.

  Appeal from the District Court for Richardson County: Julie
D. Smith, Judge. Affirmed.
      Steven J. Mercure, of Nestor & Mercure, for appellant.
   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
      Freudenberg, J.
                     NATURE OF CASE
   Clint W. Schriner was charged with and convicted of manu-
facturing a controlled substance (marijuana) within 1,000 feet
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          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
                       STATE v. SCHRINER
                       Cite as 303 Neb. 476

of a school under Neb. Rev. Stat. § 28-416 (Reissue 2016),
a Class II felony, and possession of a controlled substance
(methamphetamine) under § 28-416, a Class IV felony. The
district court sentenced Schriner to 1 to 5 years’ imprison-
ment and 2 to 2 years’ imprisonment respectively, to be served
consecutively. Schriner appeals his convictions, solely assert-
ing that the lower court erred in denying his motion to sup-
press based upon alleged violations of his Fourth Amendment
and Fifth Amendment rights during his encounter with law
enforcement.

                        BACKGROUND
                             A rrest
   In October 2016, Richardson County Deputy Sheriff
Jonathan Kirkendall was serving civil papers in Humboldt,
Nebraska, when he noticed a strong odor of marijuana.
Kirkendall was told by local residents that the smell was com-
ing from a neighboring house.
   After speaking to these residents, Kirkendall confirmed that
the odor was emanating from the identified house. He then
approached the house and knocked on the door. Schriner
answered the door in his pajamas and came outside to his
porch area. When doing so, Schriner shut the door behind him
and locked himself out of his house.
   When Kirkendall first made contact with Schriner, he
observed that there was an overwhelming odor of marijuana
being emitted both from within Schriner’s residence and from
Schriner’s person. When asked about the odor, Schriner admit-
ted that he had recently smoked marijuana.
   Kirkendall then asked Schriner to remain on the porch while
Kirkendall called the sheriff to inquire as to how to proceed.
Schriner asked whether he could go inside to get dressed, to
which Kirkendall replied, “‘Not right now, Sir.’” Schriner then
started toward the door, and Kirkendall again asked Schriner
to stay out of the residence.
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        STATE v. SCHRINER
                        Cite as 303 Neb. 476

   While on the telephone with the sheriff, Kirkendall asked
Schriner for consent to search the house. Schriner refused
to give consent. Kirkendall told Schriner that the next step
was to “request a search warrant,” to which Schriner replied,
“‘Fine. Do what you gotta do.’” At that point, Schriner again
attempted to go back inside the house, but Kirkendall told him
that he was not allowed to go back inside the house for fear
that Schriner would destroy evidence.
   Schriner, while still standing on his front porch, used his
cell phone to call his sister and told her he was being detained
by law enforcement. Specifically, Schriner said, “Hey hun,
I got . . . a cop at my door saying because he smells weed
outside . . . I’m like detained outside my house right now. . . .
And he’s . . . talking to the sheriff right now.” Schriner testi-
fied that in that moment, he believed he was being detained.
However, Kirkendall never told Schriner that he was not free
to leave.
   Schriner asked Kirkendall if a search warrant was going to
be granted. Kirkendall responded that the sheriff was “going to
write one.” At that point, Schriner started asking for leniency.
He asked Kirkendall whether he would “cut [him] a break if
[he] let [him] in” and whether he would “look the other way
for 5 minutes, while [he got] rid of something.” That “some-
thing,” per Schriner, was a small amount of methamphetamine
that he did not want to get charged with.
   After Schriner disclosed that he had methamphetamine in
his residence, Kirkendall discussed with Schriner the pos-
sibility of his cooperating on the methamphetamine “aspect
of [the situation].” At the same time, Kirkendall again started
speaking on the telephone with the sheriff. While Kirkendall
was on the telephone, Schriner said that “the neighbors are
watching right now” and asked Kirkendall, “Can we go inside
the house? Let’s just go inside the house. Might as well, you’re
getting a fucking search warrant.”
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                       STATE v. SCHRINER
                       Cite as 303 Neb. 476

   Schriner also said that he wanted to call his sister to
inform her that he was probably going to be arrested. To that,
Kirkendall replied, “No, that, that’s not, that’s not what I’m
doing.” Schriner was surprised by this response and invited
Kirkendall into the residence to “talk about it.” Kirkendall
accepted the invitation to enter the residence.
   Schriner spent approximately 15 minutes trying to get
back inside his house. He finally managed to get back inside
by removing a windowpane from the back door and manu-
ally unlocking it. Upon entering the residence, Schriner led
Kirkendall throughout the house, showing him his marijuana
grow operation, his various pieces of drug paraphernalia, and
the small amount of methamphetamine in his possession. In all,
Schriner had approximately 65 marijuana plants, the equipment
to grow them, numerous other pieces of drug paraphernalia,
and baggies of methamphetamine.
   Kirkendall told Schriner that he was going to arrest him, but
before actually doing so, Kirkendall let Schriner change his
clothes, smoke a cigarette, make various telephone calls, and
say good-bye to his pets. Kirkendall and Schriner then walked
outside, where Schriner was handcuffed and placed in the
patrol vehicle. Kirkendall and another officer then collected
the evidence from the house.
   Throughout his interaction with law enforcement, with-
out being questioned, Schriner made a number of statements
regarding his current situation with law enforcement and the
drugs in his possession. Kirkendall generally reacted by indi-
cating he had heard the statements. Kirkendall asked a few
questions in response to some of Schriner’s remarks. Many of
the volunteered statements made by Schriner were incriminat-
ing. Notably, after being handcuffed and placed in Kirkendall’s
patrol vehicle, Schriner made a number of incriminating state-
ments including, “I was growing some weed,” “They tend to
frown on that,” “It helps my back,” and “You guys can just
lose that meth; you don’t know how much I appreciate that.”
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             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                          STATE v. SCHRINER
                          Cite as 303 Neb. 476

                      Motion to Suppress
   Based on the evidence, the State charged Schriner with
manufacturing a controlled substance (marijuana) within 1,000
feet of a school under § 28-416, a Class II felony; possession
of a controlled substance (methamphetamine) under § 28-416,
a Class IV felony; and possession of drug paraphernalia under
Neb. Rev. Stat. § 28-441 (Reissue 2016), an infraction.
   Prior to trial, Schriner moved to suppress the physi-
cal evidence seized from his house as well as any state-
ments made to law enforcement during his interaction with
Kirkendall. Schriner argued that suppression was warranted
based on alleged violations of his Fourth Amendment and Fifth
Amendment rights. Schriner argued that the suppression was
warranted because (1) he was unlawfully seized, in violation
of the Fourth Amendment; (2) his statements were improperly
obtained under Miranda v. Arizona,1 in violation of the Fifth
Amendment; and (3) his consent to the search was coerced,
based on Kirkendall’s indication that he had a search warrant,
in violation of the Fourth Amendment.
   At the hearing, Kirkendall testified as described above, not-
ing that Schriner was not arrested until after he led Kirkendall
throughout the house; that he did not give Miranda warnings
to Schriner during the contact; and that he never told Schriner
that he had a search warrant or that one would be granted. In
addition to this testimony, the State offered into evidence a
1-hour video recording from Kirkendall’s body camera of the
interaction. The recording was received into evidence with-
out objection.
   Schriner testified at the hearing that he felt like he was
detained early during his interaction with Kirkendall and that
he allowed Kirkendall inside his residence only because he
thought a search warrant was being issued.

1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
    (1966).
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          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
                       STATE v. SCHRINER
                       Cite as 303 Neb. 476

   The district court granted in part and overruled in part
Schriner’s motion to suppress. The district court granted
a portion of Schriner’s request to suppress his statements
involving a short exchange after Schriner had been informed
that he was going to be arrested. Specifically, Kirkendall
asked Schriner the following questions while Schriner was
handcuffed and placed in the back of Kirkendall’s patrol
vehicle: “Alright, what’s this used for?”; “To smoke oil?”; “Is
there any oil in it?”; and “Do you have any additional oil any-
where else?” The district court concluded that these questions
by Kirkendall were part of a custodial interrogation with-
out Miranda warnings. Thus, the court sustained Schriner’s
motion to suppress as to his responses to the specific ques-
tions listed above.
   The district court overruled the remainder of Schriner’s
motion because the court concluded that (1) the initial sei-
zure of Schriner was appropriate, (2) Schriner’s other state-
ments were not made during a custodial interrogation, and
(3) Schriner’s consent to the search of his residence was not
a result of coercion, intimidation, or any improper promises
or threats.
                              Trial
   At a bench trial, the State called three witnesses to tes-
tify. Kirkendall again testified about his observations during
his encounter with Schriner on the day of the arrest and that
Schriner’s house was located approximately 689 feet from
a nearby school. The State also called an evidence custo-
dian and a forensic scientist to testify about the various sub-
stances recovered from Schriner’s house. The footage from
Kirkendall’s body camera was admitted into evidence over
Schriner’s objection.
   During trial, Schriner repeatedly renewed his objections
regarding physical evidence and Schriner’s statements during
his encounter with Kirkendall on the same grounds as pre-
sented in his motion to suppress. After repeatedly overruling
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        STATE v. SCHRINER
                        Cite as 303 Neb. 476

Schriner’s objections, the district court granted a standing
objection to preserve the issues for appeal.
   During his defense, Schriner asserted an entrapment by
estoppel claim. He argued that the signs indicating that his resi-
dence was located in a school zone were misplaced. Schriner
also presented evidence that he relied on those signs when
he purchased his house in 2013 and that he would not have
bought the house had he known it was located in a drug-free
zone. Further, Schriner called Schriner’s attorney’s law clerk
to testify. She testified that there were numerous “Drug Free
Zone” signs around the school and that Schriner’s house fell
outside their perimeter. In the same vein, Schriner testified
that he would not have bought the house had he known it was
located in a drug-free zone. However, on cross-examination,
Schriner admitted that he owned and lived in the house at
issue, he was growing marijuana inside, and he had pos-
sessed methamphetamine.
                    Verdicts and Sentencing
   Following trial, the district court rejected Schriner’s entrap-
ment by estoppel defense and found Schriner guilty of both
the manufacturing charge and the possession charge. The State
dismissed the paraphernalia charge.
   At a subsequent sentencing hearing, the district court sen-
tenced Schriner to 1 to 5 years’ imprisonment on the manufac-
turing conviction and 2 to 2 years’ imprisonment on the pos-
session of methamphetamine conviction, with those sentences
to be served consecutively.
                 ASSIGNMENTS OF ERROR
   Schriner assigns that the district court erred by overruling
his motion to suppress physical evidence and statements used
against him at trial for the following reasons: (1) Law enforce-
ment unlawfully detained and unreasonably seized Schriner
and thereby violated his Fourth Amendment rights; (2) law
enforcement did not read Schriner his Miranda rights after
he was arrested and thereby violated his Fifth Amendment
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                      303 Nebraska R eports
                             STATE v. SCHRINER
                             Cite as 303 Neb. 476

right against self-incrimination; and (3) Schriner’s consent to
the search of his home was not freely and voluntarily given
and was the exploitation of the prior Fourth Amendment
violation.
                   STANDARD OF REVIEW
   [1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment
or the safeguards established by the U.S. Supreme Court in
Miranda, an appellate court applies a two-part standard of
review.2 Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error.3 But whether those
facts trigger or violate Fourth Amendment or Fifth Amendment
protections is a question of law that an appellate court reviews
independently of the trial court’s determination.4
   [2] Likewise, we apply the same two-part analysis when
reviewing whether a consent to search was voluntary.5 As to
the historical facts or circumstances leading up to a consent
to search, we review the trial court’s findings for clear error.6
However, whether those facts or circumstances constituted a
voluntary consent to search, satisfying the Fourth Amendment,
is a question of law, which we review independently of the
trial court.7 And where the facts are largely undisputed, the
ultimate question is an issue of law.8
                          ANALYSIS
   The facts of this case are not in dispute. Rather, the central
issues of the case relate to the constitutionality of Schriner

2
    State v. Khalil, 25 Neb. App. 449, 908 N.W.2d 97 (2018). See, also, State
    v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
3
    State v. Khalil, supra note 2.
4
    Id.
5
    State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).
6
    Id.
7
    Id.
8
    Id.
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                        303 Nebraska R eports
                               STATE v. SCHRINER
                               Cite as 303 Neb. 476

and law enforcement’s interaction and the subsequent search
of Schriner’s residence. Schriner assigns that the district
court erred by overruling his motion to suppress physical
evidence and statements used against him at trial for the fol-
lowing reasons: (1) Law enforcement unlawfully detained
and unreasonably seized Schriner and thereby violated his
Fourth Amendment rights, (2) law enforcement did not read
Schriner his Miranda rights after he was arrested and thereby
violated his Fifth Amendment right against self-incrimination,
and (3) Schriner’s consent to the search of his home was not
freely and voluntarily given and was the exploitation of the
prior Fourth Amendment violation. We disagree and find
that the district court properly resolved Schriner’s motion
to suppress.
               Challenged Seizure or Detention
   First, Schriner argues that his initial encounter with law
enforcement quickly transformed into a de facto custodial
arrest and unreasonable seizure when Schriner was “restrained,
confined[,] and detained” on his front porch.9 In sum, Schriner
argues that he reasonably believed he was not free to leave dur-
ing the encounter and that Kirkendall lacked sufficient cause to
detain him. Accordingly, Schriner contends that the court erred
in overruling in part his motion to suppress.
   The State maintains that law enforcement in this case com-
plied with the Fourth Amendment. The State argues that the
contact between law enforcement and Schriner “began as a
tier-one police-citizen encounter and evolved into a tier-three
police-citizen encounter” upon Schriner’s being taken outside
and handcuffed by Kirkendall.10 We agree with the State.
   [3-6] There are three tiers of police encounters under
Nebraska law. The first tier of police-citizen encounters
involves no restraint of the liberty of the citizen involved,
but, rather, the voluntary cooperation of the citizen is elicited

 9
     See brief for appellant at 13.
10
     See brief for appellee at 13.
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                       303 Nebraska R eports
                             STATE v. SCHRINER
                             Cite as 303 Neb. 476

through noncoercive questioning.11 This type of contact does
not rise to the level of a seizure and therefore is outside the
realm of Fourth Amendment protection. The second category,
the investigatory stop, as defined by the U.S. Supreme Court
in Terry v. Ohio,12 is limited to brief, nonintrusive deten-
tion during a frisk for weapons or preliminary questioning.13
This type of encounter is considered a “seizure” sufficient
to invoke Fourth Amendment safeguards, but because of its
less intrusive character requires only that the stopping officer
have specific and articulable facts sufficient to give rise to
reasonable suspicion that a person has committed or is com-
mitting a crime.14 The third type of police-citizen encounters,
arrests, is characterized by highly intrusive or lengthy search
or detention.15 The Fourth Amendment requires that an arrest
be justified by probable cause to believe that a person has
committed or is committing a crime.16 Only the second and
third tiers of police-citizen encounters are seizures sufficient
to invoke the protections of the Fourth Amendment to the
U.S. Constitution.17
   [7,8] A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he or
she was not free to leave.18 In addition to situations where an
officer directly tells a suspect that he or she is not free to go,
circumstances indicative of a seizure may include the threaten-
ing presence of several officers, the display of a weapon by an

11
     State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019).
12
     Id.
13
     Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See,
     also, State v. Shiffermiller, supra note 11.
14
     State v. Shiffermiller, supra note 11.
15
     Id.
16
     Id.
17
     Id.
18
     State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).
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                             STATE v. SCHRINER
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officer, some physical touching of the citizen’s person, or the
use of language or tone of voice indicating the compliance with
the officer’s request might be compelled.19
   Based on the record before us, the contact began when
Kirkendall approached Schriner’s house and Schriner answered
his door. Thereafter, Kirkendall asked Schriner questions
regarding the odor of marijuana, which Schriner voluntarily
answered. During this early portion of the encounter, Schriner
admitted to having recently smoked marijuana. Schriner
contends that he was unreasonably seized under the Fourth
Amendment at this point. We disagree and find that this contact
was merely a first-tier police-citizen encounter, which, as noted
above, does not implicate the Fourth Amendment.
   Later in the encounter, Schriner was instructed by Kirkendall
not to go back into his residence. Kirkendall testified that he
did not permit Schriner to enter his residence at this point in
order to prevent the loss of evidence while seeking a search
warrant. However, Schriner does not point to any evidence
that suggests that Kirkendall told Schriner that he was not
free to leave during his encounter with law enforcement on
his front porch. Schriner was free to move about the porch
and leave the porch at any time. In fact, when Schriner stated
that he intended to call his sister again to inform her that
he was being arrested, Kirkendall replied, “That’s not what
I’m doing.”
   Schriner was free to leave the porch at any time. He sim-
ply was not allowed to enter his house. Even if we found
that Schriner was being detained on his porch, by the time
Kirkendall prohibited Schriner from going back into his resi-
dence, Schriner had already admitted to smoking and possess-
ing marijuana. This, coupled with Schriner’s neighbors’ report
and the strong odor of marijuana, provided sufficient evi-
dence to support not only reasonable suspicion, but probable
cause to justify Schriner’s arrest.20 This temporary restraint

19
     Id.
20
     See State v. Vermuele, 241 Neb. 923, 492 N.W.2d 24 (1992).
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of Schriner while he was on his porch was not inappropriate
under the Fourth Amendment.
   In Illinois v. McArthur,21 the U.S. Supreme Court held that
police officers did not violate the Fourth Amendment when
they detained a man outside his trailer home for approxi-
mately 2 hours while other officers obtained a search warrant.
In that case, police had probable cause to believe the man’s
home contained drugs, and they had good reason to fear that
unless restrained, the man would destroy the drugs before they
returned with a warrant.22 The officers neither searched the
trailer home nor arrested the man before obtaining a warrant,
and they restrained the man for a “limited period of time.”23
The U.S. Supreme Court explained that it had “upheld tempo-
rary restraints where needed to preserve evidence until police
could obtain a warrant” and noted it had found no case in
which it had “held unlawful a temporary seizure that was sup-
ported by probable cause and was designed to prevent the loss
of evidence while the police diligently obtained a warrant in a
reasonable period of time.”24
   Based on the analysis above, we find that the temporary
seizure of Schriner, which was designed to prevent the loss
of evidence and which continued for a reasonable period of
time while law enforcement diligently obtained a search war-
rant, was not unlawful. Although a warrant was not ultimately
obtained because, as we will discuss below, Schriner eventu-
ally consented to the search, the same principles found in
McArthur apply.
   We conclude as a matter of law that the district court did
not err in its resolution of Schriner’s motion to suppress on
the basis of an improper seizure and arrest in violation of the
Fourth Amendment.

21
     Illinois v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838
     (2001).
22
     Id.
23
     Id., 531 U.S. at 332.
24
     Id., 531 U.S. at 334.
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                     Challenged Statements
   [9,10] Next, Schriner argues that his statements to law
enforcement were improperly obtained under Miranda,25 in
violation of the Fifth Amendment, and that the district court
erred in overruling in part his motion to suppress on that basis.
Miranda warnings are required only where there has been such
a restriction on one’s freedom as to render one “in custody.”26
Being in custody does not require an arrest, but refers to situ-
ations where a reasonable person in the defendant’s situation
would not have felt free to leave and, thus, would feel the
restraint on freedom of movement of the degree associated
with a formal arrest.27
   [11] Miranda prohibits the use of statements derived during
custodial interrogation unless the prosecution demonstrates the
use of procedural safeguards that are effective to secure the
privilege against self-incrimination.28 Miranda requires law
enforcement to give a particular set of warnings to a person
in custody before interrogation: that he has the right to remain
silent, that any statement he makes may be used as evidence
against him, and that he has the right to an attorney, either
retained or appointed.29
   [12,13] For purposes of Miranda, interrogation “refers not
only to express questioning, ‘but also to any words or actions
on the part of the police . . . that the police should know are
reasonably likely to elicit an incriminating response from the
suspect.’”30 But it is well founded that statements made in a
conversation initiated by the accused or spontaneously volun-
teered by the accused are not the result of interrogation and

25
     Miranda v. Arizona, supra note 1.
26
     State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).
27
     See State v. Rogers, 277 Neb. 37, 760 N.W.2d. 35 (2009).
28
     State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).
29
     Id.
30
     See State v. Bauldwin, 283 Neb. 678, 700, 811 N.W.2d 267, 286 (2012)
     (ellipsis in original) (quoting State v. Rogers, supra note 27).
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                             STATE v. SCHRINER
                             Cite as 303 Neb. 476

are admissible.31 Put more broadly, any statement given freely
and voluntarily without compelling influences is admissible
in evidence.32
   We find that Schriner was not in custody for the purposes
of Miranda and the Fifth Amendment at any point prior to his
formal arrest. Further, based on the evidence before us, includ-
ing the body-camera recording of the entire encounter, Schriner
freely volunteered a number of incriminating statements during
his interaction with Kirkendall. Beginning very early on in the
interaction, Schriner made several incriminating statements to
Kirkendall that were not in response to words or actions by
Kirkendall that were reasonably likely to elicit an incriminat-
ing response. For example, after Schriner’s initial admission
to having used marijuana, Schriner asked Kirkendall whether
he would “cut [him] a break if [he] let [him] in” and whether
he would “look the other way for 5 minutes, while [he got]
rid of something.” And after Schriner, unsolicited, disclosed
that he had methamphetamine in his residence, Kirkendall dis-
cussed with Schriner the possibility of his cooperating on the
methamphetamine “aspect of [the situation].” Following his
formal arrest, Schriner made comments such as “I was grow-
ing some weed,” “It helps my back,” and “You guys can just
lose that meth; you don’t know how much I appreciate that.”
None of these statements were responsive to an interrogation.
Rather, Kirkendall was often collecting evidence and speaking
to another officer while Schriner was speaking.
   These statements were admissible. The district court did
not err in denying in part Schriner’s motion to suppress on
Miranda grounds.

                Challenged Consensual Search
   Lastly, Schriner assigns that the district court erred in deny-
ing in part his motion to suppress because Schriner did not

31
     State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
32
     State v. Dallmann, supra note 26.
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                          303 Nebraska R eports
                                 STATE v. SCHRINER
                                 Cite as 303 Neb. 476

freely and voluntarily consent to the search of his residence.
Specifically, Schriner argues that his consent was coerced, in
violation of the Fourth Amendment, based on Kirkendall’s
indication that he had a search warrant. We find no merit in
this contention.
   [14,15] Warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject to a few estab-
lished and well-delineated exceptions.33 One well-recognized
exception to the warrant requirement is a search undertaken
with consent.34
   [16-18] To be effective under the Fourth Amendment, con-
sent to a search must be a free and unconstrained choice, and
not the product of a will overborne.35 Consent must be given
voluntarily and not as a result of duress or coercion, whether
express, implied, physical, or psychological.36 The determina-
tion of whether the facts and circumstances constitute a volun-
tary consent to a search, satisfying the Fourth Amendment, is
a question of law.37 Whether consent to a search was voluntary
is to be determined from the totality of the circumstances sur-
rounding the giving of consent.38
   [19] In State v. Tucker,39 we held that consent was not
coerced where officers repeatedly asked a suspect for permis-
sion to enter his apartment to look for illegal items and threat-
ened to get a search warrant, eventually leading the suspect
to step back from the door with his arms raised and his hands
upward and outward.40 We noted in Tucker that in situations

33
     State v.   Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).
34
     See id.
35
     State v.   Tucker, 262 Neb. 940, 636 N.W.2d 853 (2001).
36
     Id.
37
     State v.   Modlin, supra note 5.
38
     Id.
39
     State v.   Tucker, supra note 35.
40
     See id.
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                       303 Nebraska R eports
                              STATE v. SCHRINER
                              Cite as 303 Neb. 476

where the searching officer has stated that he could obtain or
was in the process of getting a warrant, the courts have never
found such a statement coercive per se. Rather, the courts have
generally looked at the statement made by the officer to deter-
mine if it was coercive in the particular factual situation.41 We
also held that “[a] statement of a law enforcement agent that,
absent a consent to search, a warrant can be obtained does not
constitute coercion.”42
   Considering the totality of the circumstances, we find that
Schriner’s consent was voluntary and not coerced. There is no
evidence of police pressure. Kirkendall’s body-camera record-
ing shows that Schriner acted voluntarily and not due to
duress or coercion. As the district court noted in its order on
Schriner’s motion to suppress, Kirkendall never told Schriner
that he already had a search warrant, but, rather, only that the
sheriff was going to “write” one. That does not undermine the
validity of Schriner’s subsequent consent. We find that there is
no evidence in the record to support Schriner’s contentions that
Kirkendall “misrepresented that a warrant was presently being
written” and that Kirkendall “falsely asserted that he already
had a warrant.”43
   Consequently, we find that there was no Fourth Amendment
violation in relation to the validity of Schriner’s consent to the
search of his residence, and we accordingly conclude that the
district court did not err in denying in part Schriner’s motion to
suppress on this basis.
                         CONCLUSION
   For the reasons set forth above, we affirm the decision of the
district court.
                                                     A ffirmed.

41
     Id.
42
     Id. at 948, 636 N.W.2d at 860.
43
     See brief for appellant at 21.
