State v. Schriner , 303 Neb. 476 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/16/2019 12:07 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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    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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    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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    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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    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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    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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    STATE v. SCHRINER
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    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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    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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    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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    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. Ct. 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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    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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    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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    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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    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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    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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    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.