Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/26/2020 09:09 AM CDT




                                                        - 680 -
                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                 STATE v. DEGARMO
                                                  Cite as 305 Neb. 680




                                        State of Nebraska, appellee, v.
                                         David E. Degarmo, appellant.
                                                    ___ N.W.2d ___

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

                 1. Constitutional Law: Search and Seizure: Motions to Suppress:
                    Appeal and Error. In reviewing a trial court’s ruling on a motion to
                    suppress based on a claimed violation of the Fourth Amendment, an
                    appellate court applies a two-part standard of review. Regarding histori-
                    cal 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 indepen-
                    dently 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 histori-
                    cal facts or circumstances leading up to a consent to search, an appel-
                    late court reviews the trial court’s findings for clear error. However,
                    whether those facts or circumstances constituted a voluntary consent
                    to search, satisfying the Fourth Amendment, is a question of law,
                    which an appellate court reviews independently of the trial court. And
                    where the facts are largely undisputed, the ultimate question is an issue
                    of law.
                 3. Constitutional Law: Search and Seizure: Blood, Breath, and Urine
                    Tests. The Fourth Amendment prohibits unreasonable searches and
                    seizures, and it is well-established that the taking of a blood, breath, or
                    urine sample is a search.
                 4. Search and Seizure: Warrantless Searches. Searches without a valid
                    warrant are per se unreasonable, subject only to a few specifically estab-
                    lished and well-delineated exceptions.
                 5. Warrantless Searches. The warrantless search exceptions Nebraska has
                    recognized include: (1) searches undertaken with consent, (2) searches
                    under exigent circumstances, (3) inventory searches, (4) searches of
                    evidence in plain view, and (5) searches incident to a valid arrest.
                                   - 681 -
           Nebraska Supreme Court Advance Sheets
                    305 Nebraska Reports
                            STATE v. DEGARMO
                             Cite as 305 Neb. 680

 6. Constitutional Law: Search and Seizure: Duress. Generally, to be
    effective under the Fourth Amendment, consent to a search must be a
    free and unconstrained choice, and not the product of a will overborne.
 7. Warrantless Searches: Duress. Consent for a warrantless search must
    be given voluntarily and not as a result of duress or coercion, whether
    express, implied, physical, or psychological.
 8. Constitutional Law: Search and Seizure. The determination of whether
    the facts and circumstances constitute a voluntary consent to a search,
    satisfying the Fourth Amendment, is a question of law.
 9. Search and Seizure. Whether consent to a search was voluntary is to be
    determined from the totality of the circumstances surrounding the giving
    of consent.
10. Police Officers and Sheriffs: Warrantless Searches. While there is
    no requirement that police must always inform citizens of their right to
    refuse when seeking permission to conduct a warrantless consent search,
    knowledge of the right to refuse is a factor to be considered in the vol-
    untariness analysis.
11. Police Officers and Sheriffs: Search Warrants. A statement of a law
    enforcement agent that, absent a consent to search, a warrant can be
    obtained does not constitute coercion.

  Appeal from the District Court for Lancaster County,
Andrew R. Jacobsen, Judge, on appeal thereto from the
County Court for Lancaster County, Thomas E. Zimmerman,
Judge. Judgment of District Court affirmed.
   Mark E. Rappl for appellant.
 Douglas J. Peterson, Attorney General, Nathan A. Liss, and
Mariah J. Nickel for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Stacy, J.
   David E. Degarmo was convicted of driving under the influ-
ence based largely on the testimony of a certified drug recogni-
tion expert who concluded Degarmo was under the influence
of marijuana. A subsequent chemical test of Degarmo’s urine
confirmed the presence of marijuana. Degarmo challenges the
admission at trial of the results of the warrantless urine test,
                                   - 682 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                            STATE v. DEGARMO
                             Cite as 305 Neb. 680

relying on the U.S. Supreme Court’s opinion in Birchfield v.
North Dakota. 1 Because we conclude Degarmo consented to
the urine test and the results were thus admissible, we do not
address the Birchfield issue.
                             I. FACTS
                         1. Traffic Stop
   On the morning of December 26, 2016, Degarmo was driv-
ing on a highway in Lancaster County, Nebraska, when he was
stopped by Lancaster County Deputy Sheriff Jeremy Schwarz
for an expired registration. Degarmo was the only occupant of
the vehicle. Schwarz noticed the odor of burnt marijuana com-
ing from inside Degarmo’s vehicle, and he asked Degarmo to
accompany him back to his cruiser.
   Schwarz patted Degarmo down before placing him in the
cruiser and found a baggie containing a small amount of mari-
juana in Degarmo’s front pocket. While seated inside the cruiser
with Degarmo, Schwarz again smelled marijuana and noticed
Degarmo had slow speech and bloodshot eyes. Degarmo admit-
ted that, within the prior 20 minutes, he had smoked a “pinch”
of marijuana in his vehicle before he began driving. Schwarz
subsequently searched Degarmo’s vehicle and found a mari-
juana pipe in the center console. The pipe contained both burnt
and unburnt marijuana. Schwarz noticed Degarmo had a dis-
tinct green hue on his tongue with heat-raised taste buds, which
Schwarz testified are indicators of recent marijuana inhalation.
Schwarz also observed Degarmo to be relaxed and calm and to
have fluttering eyelids, and he testified those were also signs
of marijuana ingestion.
                     2. Field Sobriety Tests
   Based on his observations, Schwarz decided to administer
field sobriety tests. He conducted a horizontal gaze nystagmus
test, a vertical gaze nystagmus test, an eye convergence test,
1
    Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
    560 (2016).
                                   - 683 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                            STATE v. DEGARMO
                             Cite as 305 Neb. 680

a “modified Romberg test,” a walk-and-turn test, and a one-
legged stand test. Degarmo did not show any signs of impair-
ment on the nystagmus tests, but Schwarz testified that is not
unusual when the suspected impairment is due to marijuana.
Degarmo showed signs of impairment on all of the remain-
ing tests.
   After conducting the field sobriety tests, Schwarz had
Degarmo return to the cruiser and took his pulse, which mea-
sured at 140 beats per minute. Schwarz testified an average
normal pulse is 60 to 90 beats per minute. Schwarz arrested
Degarmo for driving under the influence and took him to a
detoxification center in Lincoln, Nebraska, for a drug recog-
nition evaluation (DRE). A DRE is a nationally standardized
protocol for identifying drug intoxication. 2
             3. Drug Recognition Evaluation
   Schwarz, who is a certified DRE expert, conducted
the DRE. It was performed in a testing room with only
Schwarz and Degarmo present. Most of the DRE was video
recorded, and Degarmo waived his Miranda rights prior to the
examination.
                        (a) Breath Test
   At the beginning of the DRE, Schwarz requested a breath
sample from Degarmo. In doing so, he read part A of a stan-
dardized postarrest chemical test advisement to Degarmo. This
form provided:
        You are under arrest for operating or being in actual
     physical control of a motor vehicle while under the
     influence of alcoholic liquor or drugs. Pursuant to law,
     I am requiring you to submit to a chemical test or tests
     of your breath or urine to determine the concentration of
     alcohol or drugs in your breath or urine.
        Refusal to submit to such test or tests is a separate
     crime for which you may be charged.
2
    See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
                                - 684 -
              Nebraska Supreme Court Advance Sheets
                       305 Nebraska Reports
                         STATE v. DEGARMO
                          Cite as 305 Neb. 680

         I have the authority to direct whether the test or
      tests shall be of your breath or urine and may direct
      that more than one test be given.
         A. Request for test: I hereby direct a test of your
       ü breath ___ urine to determine the ü alcohol ___
      drug content.
Schwarz checked the blank space in front of “breath” and
“alcohol” on the advisement, and both Schwarz and Degarmo
signed the advisement form at 11:08 a.m. Schwarz testified that
when he went through the form, he explained to Degarmo that
it pertained only to testing for alcohol ingestion. Degarmo’s
breath test was completed at 11:27 a.m. and showed no alcohol
in his system.

                   (b) Opinion of Impairment
   After taking the breath test, Schwarz conducted the remain-
der of the DRE according to the standardized protocol. 3
Schwarz testified, summarized, that Degarmo showed impair-
ment consistent with use of marijuana on most of the DRE
tests he administered. Schwarz further testified that the tests
on which Degarmo showed no impairment were tests on which
marijuana use would not be expected to result in impairment.
Schwarz formed the opinion that Degarmo was under the influ-
ence of marijuana and was unable to safely operate a motor
vehicle. After forming this opinion, Schwarz asked Degarmo to
consent to a urine test.

                        (c) Urine Test
  In connection with requesting consent for a urine test,
Schwarz read Degarmo another standardized form. This form
was entitled “Consent to Search for Blood/Urine Alcohol or
Drug Evidence,” and it provided:
       I, David E. Degarmo, located at 721 K St., Lancaster
    County, Nebraska, have been informed of my constitu-
    tional right not to have a search made of my blood or
3
    See id.
                                    - 685 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                             STATE v. DEGARMO
                              Cite as 305 Neb. 680

     urine, which is under my control, without a search war-
     rant. I also have been informed of and understand my
     right to refuse to consent to such search. I understand that
     if I refuse to give consent to search my blood or urine, a
     search warrant for my blood or urine will be sought. With
     this understanding, I hereby authorize [Deputy] Schwarz,
     who had identified himself/herself as a law enforcement
     officer in the State of Nebraska, to conduct a search of
     my body for blood or urine for alcohol and/or drugs. I
     understand that such a search may include the drawing of
     my blood and/or the collection of my urine. I understand
     that this may be used as evidence against me in crimi-
     nal proceedings.
        I have read and/or have been read this form; I under-
     stand it; and I give the officer permission to search my
     blood or urine. This permission is being given voluntarily
     and without threats or promises of any kind.
After this consent to search form was read to him, Degarmo
signed and dated the form at 12:04 p.m., and he provided the
requested urine sample. The signed consent to search form was
received into evidence at trial without objection.
   Degarmo’s urine sample was sent to the Nebraska State
Patrol Crime Laboratory for testing. The test results confirmed
the presence of the metabolite for tetrahydrocannabinol (the
active drug in marijuana) in Degarmo’s urine.
                    4. Motion to Suppress
   Degarmo was charged in the county court for Lancaster
County with driving under the influence (one prior conviction),
possession of 1 ounce or less of marijuana, and possession of
drug paraphernalia. He moved to suppress the results of the
urine test, arguing that he did not voluntarily consent to the
test and that the urine sample was obtained without a warrant
in violation of Birchfield, 4 his rights under the 4th and 14th
Amendments to the U.S. Constitution, and article I, § 7, of the
4
    See Birchfield, supra note 1.
                               - 686 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                        STATE v. DEGARMO
                         Cite as 305 Neb. 680

Nebraska Constitution. The county court denied the motion to
suppress, reasoning in part that Degarmo “freely, voluntarily,
knowingly and intelligently” gave consent for the urine test
by signing the consent to search form. The matter proceeded
to trial.
                             5. Trial
   During the jury trial, Schwarz generally testified to the
events as set out above. He also testified that after conduct-
ing all but the final step of the DRE (the urine test), it was his
opinion that Degarmo was under the influence of marijuana
and was not able to safely operate a motor vehicle. He testi-
fied that he formed his opinion on the cause and extent of
Degarmo’s impairment prior to conducting the urine test, and
he described the urine test in this case as “confirmation” or
“corroborat[ion]” of his opinion on Degarmo’s impairment.
   The toxicologist who tested Degarmo’s urine sample also
testified at trial. She explained the urine testing process and
testified that she performed the test in accordance with “Title
177.” Over Degarmo’s objection, the toxicologist testified that
her testing showed the active drug metabolite for marijuana
was present in Degarmo’s urine. Her report to that effect was
received into evidence, also over Degarmo’s objection. The
toxicologist admitted that it was not scientifically possible
to determine impairment based only on the presence of drug
metabolites in urine, and she explained that the purpose of
urine testing was simply to “corroborate the drug recogni-
tion evaluator’s opinion” as to the substance contributing to
any impairment.
   Degarmo testified in his own defense. As relevant to the
issues on appeal, he admitted that on the morning he was
stopped by Schwarz, he had smoked a small amount of mari-
juana inside his vehicle before driving.
                 6. Verdicts and Sentences
   The jury found Degarmo guilty on all three charges. On
the conviction for driving under the influence, Degarmo was
                                   - 687 -
            Nebraska Supreme Court Advance Sheets
                     305 Nebraska Reports
                            STATE v. DEGARMO
                             Cite as 305 Neb. 680

sentenced to 45 days in jail, fined $500, and his license was
revoked for 18 months. On the conviction for possession of
marijuana, Degarmo was fined $300. And on the convic-
tion for possession of drug paraphernalia, Degarmo was
fined $25.
                 7. Appeal to District Court
   Degarmo filed a timely appeal through new court-appointed
counsel. He assigned error to the admission of the warrantless
urine test result. The district court, sitting as an intermediate
court of appeals, affirmed. 5 In doing so, it examined the total-
ity of the circumstances and found that Degarmo voluntarily
consented to the urine test. Degarmo appealed again, and we
granted his petition to bypass the Court of Appeals.
                 II. ASSIGNMENT OF ERROR
   Degarmo assigns that the district court erred in affirming
the county court’s order overruling his motion to suppress the
results of the urine test.
                 III. STANDARD OF REVIEW
   [1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 6
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 7
   [2] Likewise, we apply the same two-part analysis when
reviewing whether a consent to search was voluntary. 8 As to
the historical facts or circumstances leading up to a consent
5
    See State v. Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019).
6
    State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).
7
    Id.
8
    State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).
                                     - 688 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                              STATE v. DEGARMO
                               Cite as 305 Neb. 680

to search, we review the trial court’s findings for clear error. 9
However, whether those facts or circumstances constituted a
voluntary consent to search, satisfying the Fourth Amendment,
is a question of law, which we review independently of the
trial court. 10 And where the facts are largely undisputed, the
ultimate question is an issue of law. 11
                           IV. ANALYSIS
   [3-5] The Fourth Amendment prohibits unreasonable
searches and seizures, and it is well-established that the tak-
ing of a blood, breath, or urine sample is a search. 12 Searches
without a valid warrant are per se unreasonable, subject only
to a few specifically established and well-delineated excep-
tions. 13 The warrantless search exceptions Nebraska has rec-
ognized include: (1) searches undertaken with consent, (2)
searches under exigent circumstances, (3) inventory searches,
(4) searches of evidence in plain view, and (5) searches inci-
dent to a valid arrest. 14
   Both the county court and the district court devoted consid-
erable analysis to whether the search incident to arrest excep-
tion can apply to a urine test after the U.S. Supreme Court’s
decision in Birchfield. 15 This case does not require us to answer
that question. As explained below, we conclude that Degarmo
voluntarily consented to the search of his urine and that his
motion to suppress was properly overruled. As such, we do not
address the applicability of any other recognized exception to
the warrant requirement.
 9
     Id.
10
     Id.
11
     Id.
12
     See, Birchfield, supra note 1; Skinner v. Railway Labor Executives’ Assn.,
     489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); Schmerber v.
     California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
13
     State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
14
     Id.
15
     See Birchfield, supra note 1.
                                      - 689 -
              Nebraska Supreme Court Advance Sheets
                       305 Nebraska Reports
                               STATE v. DEGARMO
                                Cite as 305 Neb. 680

                     1. Legal Standard and
                         Historical Facts
   As a threshold matter, we emphasize that our analysis in
this case is focused exclusively on whether Degarmo volun-
tarily gave consent for the search of his urine. 16 We thus do
not address whether, in the wake of the U.S. Supreme Court’s
holding in Birchfield, Degarmo can also be deemed to have
impliedly consented to the urine test pursuant to Nebraska’s
implied consent laws. 17
   [6-9] Generally, to be effective under the Fourth Amendment,
consent to a search must be a free and unconstrained choice,
and not the product of a will overborne. 18 Consent must be
given voluntarily and not as a result of duress or coercion,
whether express, implied, physical, or psychological. 19 The
determination of whether the facts and circumstances con-
stitute a voluntary consent to a search, satisfying the Fourth
Amendment, is a question of law. 20 Whether consent to a
search was voluntary is to be determined from the totality of
the circumstances surrounding the giving of consent. 21
   Here, the county court made several findings of historical
fact related to its determination that Degarmo voluntarily con-
sented to the urine test. It found that Degarmo was in custody
at the time, having been arrested on suspicion of driving under
the influence of drugs and transported to a detoxification cen-
ter for purposes of a DRE. It found that as part of the DRE,
Schwarz read Degarmo part A of the postarrest chemical test
16
     See State v. Hoerle, 297 Neb. 840, 901 N.W.2d 327 (2017) (concluding
     Birchfield did not categorically invalidate warrantless blood draw based
     on actual consent when driver was incorrectly advised he was required to
     consent or face criminal penalties and finding totality of circumstances test
     proper).
17
     See Neb. Rev. Stat. § 60-6,197(1) and (3) (Cum. Supp. 2018).
18
     Schriner, supra note 8.
19
     Id.
20
     Id.
21
     Id. See, also, Hoerle, supra note 16.
                                         - 690 -
              Nebraska Supreme Court Advance Sheets
                       305 Nebraska Reports
                                  STATE v. DEGARMO
                                   Cite as 305 Neb. 680

advisement form and directed a test of his breath, and that
Degarmo signed part A of that form at 11:08 a.m. It found
that about an hour later, Schwarz read Degarmo the consent to
search form asking for permission to search his urine, and that
Degarmo signed that form at 12:04 p.m. It noted Degarmo’s
testimony that he signed the forms because he understood
that he was going to be “guilty no matter what.” It also noted
Degarmo’s testimony that he felt “belittled” during the entire
course of the DRE.
   Degarmo does not challenge any of these findings of histori-
cal fact, and we agree they are supported by the record and not
clearly erroneous. After considering the totality of the circum-
stances, both the county court and the district court concluded
that Degarmo voluntarily consented to the search of his urine.
Because this determination presents a question of law, we con-
sider it independently. 22
                 2. Totality of Circumstances
   As stated, whether consent to a warrantless search was
voluntary is to be determined from the totality of the cir-
cumstances surrounding the giving of consent. On appeal,
Degarmo advances two reasons why his written consent to the
urine test was not voluntary. First, he argues his consent was
“coerced out of him by a claim of lawful authority.” 23 Next,
he argues his consent was not voluntary because he was “in
a police-dominated atmosphere.” 24 We address each argument
in turn.
   In arguing that his consent was coerced by a claim of law-
ful authority, Degarmo claims that after he read and signed the
postarrest chemical test advisement form (which directed him
to submit to a breath test), he was left with the “‘impression’”
that if he did not also sign the consent to search form and agree
to a search of his urine, that he “‘was going to be guilty no
22
     Schriner, supra note 8.
23
     Brief for appellant at 20.
24
     Id.
                                    - 691 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                             STATE v. DEGARMO
                              Cite as 305 Neb. 680

matter what.’” 25 We find this argument unavailing in light of
the plain language of the consent to search form.
   [10] The consent to search form expressly advised Degarmo
that he had a constitutional right not to have a search made
of his blood or urine without a search warrant, and the form
unequivocally stated that Degarmo had a right to refuse to
consent to such a search. While there is no requirement that
police must always inform citizens of their right to refuse when
seeking permission to conduct a warrantless consent search,
knowledge of the right to refuse is a factor to be considered in
the voluntariness analysis. 26 Here, the fact that Degarmo was
told he had a constitutional right to refuse a warrantless search
of his urine is a factor that weighs heavily in favor of finding
his consent to such a search was voluntary.
   [11] The consent to search form also told Degarmo that if he
refused to give consent to search his blood or urine, then offi-
cers would seek a search warrant. In his reply brief, Degarmo
suggests that the threat of being “detained even further for the
possible issuance of a search warrant” 27 was itself coercive, but
we disagree. As we explained in State v. Tucker, 28 “A statement
of a law enforcement agent that, absent a consent to search, a
warrant can be obtained does not constitute coercion.”
   Having considered the language of the postarrest chemical
test advisement form in conjunction with the plain language
of the consent to search form, we reject Degarmo’s suggestion
that an objectively reasonable person would be left with the
impression he or she had to consent.
   Nor are we persuaded by Degarmo’s claim that his con-
sent was coerced simply by being “in a police-dominated
atmosphere.” 29 Degarmo suggests his consent to the urine
25
     Id.
26
     See United States v. Drayton, 536 U.S. 194, 122 S. Ct. 2105, 153 L. Ed.
     2d 242 (2002).
27
     Reply brief for appellant at 3.
28
     State v. Tucker, 262 Neb. 940, 948, 636 N.W.2d 853, 860 (2001).
29
     Brief for appellant at 20.
                                    - 692 -
             Nebraska Supreme Court Advance Sheets
                      305 Nebraska Reports
                             STATE v. DEGARMO
                              Cite as 305 Neb. 680

search was not voluntary because he “had been arrested, placed
in handcuffs, put into a police cruiser, driven to detox, [and]
subjected to various tests.” 30 All these are factors to consider in
a totality of the circumstances analysis, but having done so, we
do not agree with Degarmo that any of these factors vitiate the
voluntariness of his written consent.
   The U.S. Supreme Court has held the “fact of custody alone
has never been enough in itself to demonstrate a coerced con-
fession or consent to search.” 31 And this court has similarly
recognized that “[t]he mere fact that the individual is in police
custody, standing alone, does not invalidate the consent if,
in fact, it was voluntarily given.” 32 Here, the record shows
Degarmo’s arrest and transport to a detox center were part of a
routine DRE investigation, which was video recorded. There is
no evidence that police conducted either the arrest or the DRE
in a threatening or coercive manner. 33
   Having considered the totality of the circumstances, we
determine Degarmo’s written consent to the warrantless search
of his urine was voluntary and not coerced. The motion to sup-
press was properly denied by the county court, and that denial
was properly affirmed by the district court.
                       V. CONCLUSION
   Because Degarmo voluntarily consented to the warrantless
search of his urine, the search fell within a recognized excep-
tion to the warrant requirement. Finding no error in the district
court’s decision to affirm the county court’s overruling of
Degarmo’s motion to suppress, we affirm.
                                                    Affirmed.
30
     Brief for appellant at 20-21.
31
     United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d
     598 (1976).
32
     State v. Christianson, 217 Neb. 445, 449, 348 N.W.2d 895, 898 (1984).
33
     See Schriner, supra note 8 (finding consent for warrantless search was
     voluntary when there was no evidence of police pressure and police body
     camera recorded interaction).
