State v. Bond ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/12/2016 09:05 AM CDT
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Decisions of the Nebraska Court of A ppeals
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STATE v. BOND
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State of Nebraska, appellee, v.
Shannon K. Bond, appellant.
___ N.W.2d ___
Filed April 12, 2016. No. A-15-478.
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. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Constitutional Law: Search and Seizure. It is well settled under
the Fourth Amendment that warrantless searches and seizures are per
se unreasonable, subject to a few specifically established and well-­
delineated exceptions.
4. ____: ____. 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.
5. Police Officers and Sheriffs: Search and Seizure. In addition to situ-
ations where an officer directly tells a suspect that he or she is not free
to go, circumstances indicative of a seizure may include the threatening
presence of several officers, the display of a weapon by an officer, some
physical touching of the citizen’s person, or the use of language or tone
of voice indicating that compliance with the officer’s request might
be compelled.
6. Search and Seizure: Duress. Consent to search must be voluntarily
given and not the result of duress or coercion, whether express, implied,
physical, or psychological.
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7. ____: ____. In examining all the surrounding circumstances to deter-
mine if in fact a consent to search was coerced, account must be taken
of subtly coercive police questions, as well as the possibly vulnerable
subjective state of the person who consents.
8. Search and Seizure. Where both occupants of a jointly occupied prem-
ises are physically present, the consent of one occupant to a search is
insufficient when the other occupant objects to the search.
9. ____. The determination of whether consent to search is voluntarily
given is a question of fact to be determined from the totality of the
circumstances.
10. Search and Seizure: Proof. The burden is upon the government to
prove that a consent to search was voluntarily given.
11. Sentences: Probation and Parole. When a court sentences a defendant
to probation, it may impose any conditions of probation that are autho-
rized by statute.
Appeal from the District Court for Hall County: William T.
Wright, Judge. Affirmed.
Vicky A. Kenney and Matthew A. Works, Deputy Hall
County Public Defenders, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Bishop, Judge.
Following a bench trial in the district court for Hall County,
Shannon K. Bond was convicted of possession of a controlled
substance (methamphetamine), a Class IV felony, see Neb.
Rev. Stat. § 28-416(3) (Cum. Supp. 2014), and sentenced to
4 years’ probation. She appeals, contending the district court
erred in failing to suppress evidence seized during an alleg-
edly unconstitutional search of her apartment. She argues that
without the evidence, there was insufficient evidence to estab-
lish her guilt. She also contends the district court improperly
imposed a term of probation prohibiting her from having any
contact with her boyfriend, Paul J. Turner, who was convicted
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of drug-related offenses in a consolidated trial with Bond.
We affirm.
BACKGROUND
On January 21, 2014, Bond was charged by information in
the district court for Hall County with possession of metham-
phetamine. In a separate information filed in the district court
for Hall County on the same date, Turner was charged with
possession of methamphetamine, possession of drug parapher-
nalia, and possession of 1 ounce or less of marijuana. Bond’s
and Turner’s offenses allegedly occurred on December 3, 2013,
in Hall County, Nebraska.
On May 28, 2014, Bond filed a motion to suppress evi-
dence seized during an allegedly unconstitutional search of
the apartment she shared with Turner. She further requested
that any statements she made be suppressed, alleging the
statements were not freely and voluntarily made. On May
14, Turner had filed a nearly identical motion to suppress in
his case.
Bond and Turner, both of whom were represented by coun-
sel, agreed to a consolidated evidentiary hearing on their
motions to suppress; the hearing was held on July 17, 2014.
Investigator Sarah Mann of the Grand Island Police Department
testified as follows: On December 2, 2013, she went to an
address on North Walnut Street in Grand Island, Nebraska,
in response to a child abuse hotline intake indicating pos-
sible drug use in front of minor children at the address. Upon
arriving, she knocked on the door and heard no response. She
returned around 1 p.m. the next day, December 3, with Chelsea
Willden, an employee of the Nebraska Department of Health
and Human Services (DHHS). Investigator Mann realized the
door on which she had knocked the prior day led to a staircase,
and she opened the door and ascended the stairs. At the top of
the stairs was the door to an apartment. She knocked on the
door and heard a male voice say, “Come in.” She continued
knocking, and Turner opened the door.
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According to Investigator Mann, she identified herself and
Willden, explained they had received a complaint, and asked
if they could “come in and chat with him about it.” Turner
said yes and invited them inside. Mann and Willden talked to
Turner about the allegations, and then Bond exited a bedroom
and joined the conversation. Mann and Willden explained the
allegations to Bond. At some point during this interaction,
Investigator Mann saw an individual whom she identified
as Dennis Castro sitting in the living room; she learned that
Castro had a warrant for his arrest and requested a patrol unit
to transport Castro to the jail. Waiting for the patrol unit “took
up some time.”
After Castro was transported away, Royal Kottwitz, another
investigator with the Grand Island Police Department, noticed
a backpack on the living room floor. (On cross-examination,
Mann clarified that Investigator Kottwitz was with her and
Willden when they arrived at the apartment on December 3,
2013.) Neither Bond nor Turner knew who owned the back-
pack, and both agreed it could be searched. Upon opening
the backpack, Investigator Mann located among other items
a hypodermic needle, a small baggie of what appeared to be
marijuana, and a glass pipe with white residue. Based on her
training and experience, Investigator Mann believed the glass
pipe was a “meth pipe.”
Investigator Mann explained that after finding the items in
the backpack, there was a discussion about consent to search
the apartment. Bond wanted to give consent, but Turner did
not. There was a discussion “amongst officers” about whether
to seek a search warrant. Bond then asked if she could go
to the bathroom and asked Investigator Mann to accompany
her. In the bathroom, Bond “was pretty worked up” and
told Investigator Mann she would give up “everything” and
“wanted to know if that would kind of make all this go away.”
Investigator Mann told Bond she could not answer that ques-
tion because she did not know what Bond had. The two women
left the bathroom, and Bond led Investigator Mann into the
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bedroom, where Bond pulled two pipes and a baggie out of
her purse. Bond handed the pipes to Investigator Mann and
said, “This is my marijuana pipe,” and, “This is my meth
pipe.” The baggie had a white residue that appeared to be
methamphetamine.
After Bond handed the items to her, Investigator Mann told
Bond she still wanted to search the apartment. They returned to
the living room, and Bond conversed with Turner. According to
Investigator Mann, Bond and Turner could not agree whether
to give consent and “kind of went back and forth.” Every now
and then, Investigator Mann would tell them “time’s ticking”
and ask for a decision. Eventually, Investigator Mann informed
Bond and Turner she was leaving to apply for a search war-
rant, but Bond asked her to wait. After Bond and Turner still
could not reach a decision, Investigator Mann said “time’s up”
and left to seek a search warrant.
Investigator Mann testified that Officer Wesley Tjaden
arrived to “stand by to make sure no evidence was destroyed”
while she sought a search warrant. Investigator Mann returned
to the police department and had nearly completed her warrant
application when Officer Tjaden called to inform her Bond
and Turner had decided to consent to the search. Investigator
Mann, who had not completed the warrant application, returned
to the apartment, and Bond and Turner verbally consented to
a search and signed consent-to-search forms. The forms were
received into evidence; Bond signed her form at 4:05 p.m.,
and Turner signed his form at 4:10 p.m.
During the subsequent search of the apartment, Investigator
Mann located a makeup or cosmetic bag containing drug para-
phernalia and what she believed to be methamphetamine. The
bag was located in a magazine rack in the master bedroom,
on the side of the bed that Bond indicated was hers. In the
nightstand on the other side of the bed, Investigator Kottwitz
located a glass marijuana pipe, a marijuana grinder, two bro-
ken glass pipes, and a “blue pencil torch.” Other drug-related
items were located in other places in the master bedroom,
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including a baggie containing a white crystalline substance
on the desk and folded up tinfoil with white residue in the
trash can.
Investigator Mann testified that after locating the items dur-
ing the search, she gave Turner warnings pursuant to Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), and that he signed a form waiving his rights. The form
was received into evidence and indicated Turner signed the
form at 5:15 p.m. When Investigator Mann then asked Turner
if the items in the magazine rack were his, Bond spoke up and
said they were hers. Investigator Mann placed Bond and Turner
under arrest.
On cross-examination, Investigator Mann testified that
prior to going to Bond and Turner’s apartment, she and
Willden interviewed Turner’s 10- and 11-year-old sons at their
schools. Neither boy reported witnessing drug use at home.
Investigator Mann also spoke with the boys’ mother (who was
not Bond), and the mother expressed concern that Bond and
Turner were “currently using.” The mother, who had custody
of the boys, did not know what occurred during the boys’ vis-
its with Turner.
Also on cross-examination, Investigator Mann explained that
the door on which she knocked on December 2, 2013, was “an
outside door off the sidewalk of the business district” in Grand
Island. Although she did not recall there being a doorbell, she
was shown her police report in which she reported that she
rang a doorbell next to the outside door. When she returned
on December 3, she realized that because the apartment was
in a business district, the door must lead to a staircase to the
upstairs apartment. When she opened the door, she saw an
enclosed staircase leading to another door. The stairs did not
appear to be the interior of someone’s home. She did not recall
seeing any personal belongings on the stairs.
Investigator Mann also explained that when she discussed
the allegations of the hotline report with Bond and Turner, they
showed her the children’s sleeping area and Bond and Turner’s
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food supply in the kitchen. Nothing Investigator Mann saw
caused her concern over the children’s care.
Still on cross-examination, Investigator Mann estimated that
when Bond and Turner were discussing whether to consent to a
search of the apartment, she inquired three to four times as to
whether they had made a decision.
Officer Tjaden testified that on December 3, 2013, he was
called to an apartment on North Walnut Street in Grand Island
to arrest Castro and transport him to jail. After he trans-
ported Castro, he returned to the apartment to “stand at the
residence” while Investigator Mann obtained a search warrant.
After Investigator Mann left, the only persons in the apartment
were Officer Tjaden, Bond, and Turner. Officer Tjaden stood
in the doorway of the living room, and Bond and Turner sat on
the couch in the living room. Neither Bond nor Turner asked
or attempted to leave, and the officer did not tell them they
were not free to do so. Officer Tjaden observed Bond “beg-
ging and pleading” with Turner to give consent to search the
apartment. The officer never discussed the subject of consent
to search with them. At some point, Bond and Turner told the
officer they had decided to give consent to search. He radioed
Investigator Mann to return to the apartment. Officer Tjaden
estimated he was at the apartment for 45 minutes to 1 hour
during the time Investigator Mann was preparing her search
warrant application.
On cross-examination, Officer Tjaden recalled seeing “stuff
lined up on either side of the stairwell,” but he did not remem-
ber what it was. He also testified he was 6 feet 3 inches tall
and weighed close to 260 pounds. While in the apartment,
he was in full uniform with his service weapon displayed on
his person.
The State rested, and Bond and Turner called Willden as
their first witness. Willden’s testimony concerning the events
of December 2 and 3, 2013, was largely consistent with
Investigator Mann’s testimony. However, she testified that
Bond answered the apartment door, not Turner as Investigator
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Mann testified. Willden testified that following the visit to
the apartment, DHHS closed the investigation into the hotline
report as “unfounded.”
Bond and Turner next called Investigator Kottwitz. He testi-
fied that when he arrived at the apartment with Investigator
Mann and Willden on December 3, 2013, they were unsure
whether the street-level door “led to the residence or led to
multiple apartments on the second level.” Investigator Kottwitz
testified he opened the unlocked door and saw a stairway lead-
ing to a second door. He recalled seeing “minimal property” on
the stairs. The remainder of his testimony was consistent with
Investigator Mann’s testimony.
On August 14, 2014, the court entered a written order over-
ruling Bond’s and Turner’s motions to suppress. The court
found that when the investigators and Willden approached the
apartment for purposes of inquiring about the hotline report,
they were engaging in a “‘knock and talk’” and did not require
a warrant. The court further found that while one might argue
the stairway was part of the “‘curtilage’” of the apartment,
there was no indication Bond and Turner had a reasonable
expectation of privacy in the stairway, and the evidence sug-
gested it was expected for a visitor to climb the stairway and
knock on the upstairs door. The court noted Turner’s lack of
surprise when Investigator Mann knocked on the upstairs door,
given that Turner’s response was “‘come in.’”
Turning to the issue of consent to search, the court found
that either Bond or Turner consented to the initial entry into
the apartment. The court then found that Bond and Turner
consented to the search of the backpack and that Bond invited
Investigator Mann to the bathroom and bedroom, where Bond
gave Investigator Mann drug paraphernalia and items with
drug residue on them. Even though Turner had not consented
to a search of the apartment at that time, the court noted that
Turner was not the target of a search when Investigator Mann
accompanied Bond to these areas and that Bond had “‘common
authority’” over the apartment.
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Addressing the ultimate search of the entire apartment, the
court found it to be the only “potentially problematic” search.
The court noted Bond and Turner did not sign the consent-
to-search forms until law enforcement officials had been in
and out of the apartment for approximately 3 hours. This time
period was prolonged due to Castro’s arrest, the discussion
between Bond and Turner regarding consenting to the search,
and Investigator Mann’s departure to seek a search warrant.
The court found that “the vast majority of the time officers
spent in the residence was the result of Bond’s efforts to
secure Turner’s consent.” Furthermore, the court found that
“[i]f anyone overbore Turner’s will, it was Bond, not the offi-
cers in question.” The court upheld the consensual search of
the apartment. The court also found that any statements made
by Bond and Turner either were volunteered without custo-
dial inquiry or followed the voluntary waiver of rights under
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
At Bond and Turner’s request, the matter proceeded to a
consolidated bench trial on December 22, 2014. Investigators
Mann and Kottwitz testified consistently with their testimony
at the suppression hearing. In addition, a forensic scientist from
the Nebraska State Patrol crime laboratory testified concerning
her testing of the suspected drugs seized from the apartment,
which tested positive for marijuana and methamphetamine.
After an evidence technician provided testimony concerning
the chain of custody, the drugs and drug paraphernalia seized
from the apartment were received into evidence.
The court found Bond guilty of possession of methamphet-
amine and requested preparation of a presentence investiga-
tion report (PSR). At a sentencing hearing on May 6, 2015,
the court stated it had reviewed the PSR, which indicated that
in August 2008, Bond was convicted of delivery or posses-
sion with intent to deliver an exceptionally hazardous drug
(drug not specified), a Class II felony, and was sentenced to
4 to 5 years’ imprisonment; in 2007, she was convicted of
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shoplifting; and in March 2004, she was arrested for posses-
sion of a controlled substance (drug not specified), but the
charge was dismissed after she completed drug court. The PSR
reflected that Bond scored at high risk for recidivism using
the “Level of Service/Case Management Inventory”; moder-
ate to high risk for alcohol or drug abuse using the “Simple
Screening Instrument”; and in the “problem risk” range on
the “Substance Abuse Questionnaire” in the areas of alcohol
and drugs. A chemical dependency analysis was attached to
the PSR; the counselor who completed the analysis recom-
mended that Bond complete intensive outpatient treatment for
substance abuse.
At the sentencing hearing, after Bond’s counsel argued
in favor of a term of probation, the court offered Bond an
opportunity for allocution. After Bond began discussing the
“things in this case that aren’t right,” the court interrupted,
stating it was particularly concerned with Bond’s substance
abuse problem and wanted to know why it should not sen-
tence her to prison. Bond said she would go to prison if the
court felt “that’s where [she] need[ed] to be.” The court then
asked some specific questions concerning Bond’s substance
abuse, including whether she was still living with Turner, who
was a long-term drug addict. Bond indicated that Turner had
recently moved out. She said she knew “it’s what’s best for
[her],” apparently referring to distancing herself from Turner.
She went on to explain that for “probably” the past year,
Turner would “come and go” and “he slept in the front room”
while Bond slept in the bedroom. Bond said “it was really
not a relationship.” The court indicated it did not believe
Bond “would ever make it on probation” unless she had no
contact with Turner. When the court asked Bond if she would
be able to comply with a term of probation requiring her to
have no contact with Turner, Bond responded, “It would be
very hard”; she later said she “would have to” comply with
such a provision, although she could not “shut off [her] feel-
ings.” The court indicated that the alternative to probation was
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to sentence Bond to prison “with the hope” that she would
receive treatment.
At the conclusion of the sentencing hearing, the court sen-
tenced Bond to 4 years’ probation. One of the terms was that
Bond “[n]ot associate with individuals having a known crimi-
nal record,” except by permission of the probation officer, or
“any person in possession of non-prescribed controlled sub-
stances to include family and significant others and specifically
. . . Turner.” Bond’s terms of probation also included that she
serve 90 days in jail; complete intensive outpatient counseling;
not consume alcohol or drugs; submit to chemical drug testing
at the probation officer’s request; serve an immediate 72-hour
jail sanction for any positive drug test, curfew violation, or
refusal to test; and complete a variety of classes.
Bond timely appealed to this court.
ASSIGNMENTS OF ERROR
Bond assigns that (1) there was insufficient evidence to sus-
tain her conviction, (2) the court erred in failing to suppress
“prejudicial evidence of Bond’s possession of a controlled
substance after a prolonged search and seizure of her person
and home,” and (3) the court erred in prohibiting Bond from
having contact with her “long term boyfriend, . . . Turner, dur-
ing the pendency of her probation” because it is not reason-
ably related to her offense and is “an unlawful intrusion on
her life.”
Bond’s only argument in support of her first assignment
of error is that without the evidence seized during the search
of the apartment, there was insufficient evidence to establish
her guilt; she does not contend that the evidence, if properly
admitted, was insufficient. Therefore, the success of Bond’s
first assignment of error hinges on her second assignment
of error.
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,
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we apply a two-part standard of review. State v. Wells, 290
Neb. 186, 859 N.W.2d 316 (2015). Regarding historical facts,
we review the trial court’s findings for clear error. Id. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination. Id.
[2] We will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
court. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence. State v. Rieger, 286 Neb. 788, 839 N.W.2d
282 (2013).
ANALYSIS
Evidence Seized During
Search of Apartment.
Bond challenges the search of her and Turner’s apartment
on a number of grounds. She contends that after Investigator
Mann and Willden interviewed Turner’s sons, they should
have ceased their investigation into the hotline report of
possible drug use in front of the children; she maintains
law enforcement did not have probable cause to continue
the investigation beyond that point. She further argues the
investigators “without authorization entered what should be
considered a porch area wherein they should not have entered
without invitation.” Brief for appellant at 16. She contends the
3-hour period during which law enforcement was in the apart-
ment prior to obtaining consents to search was an unreason-
able and “excessively long seizure and detention.” Id. Bond
asserts her and Turner’s wills were overborne, resulting in
coerced consents.
The State responds that Bond failed to preserve her objec-
tion to the evidence seized during the search. The State points
out that after the district court overruled Bond’s motion to
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suppress, Bond failed to object to the admission of some of
the drug evidence at trial. We note that Bond renewed her
motion to suppress at trial and requested a continuing objec-
tion based on her motion to suppress. However, the district
court would not allow a continuing objection and instructed
Bond she needed to object to individual lines of testimony.
The record is replete with objections; however, as the State
points out, Bond failed to object to every single line of tes-
timony concerning drug evidence seized from the apartment.
We need not decide whether this was sufficient to preserve the
issue for appeal, because, whether or not Bond preserved the
issue, we conclude it was proper not to suppress the evidence
seized from the apartment, as we now explain.
[3] It is well settled under the Fourth Amendment that
warrantless searches and seizures are per se unreasonable,
subject to a few specifically established and well-delineated
exceptions. State v. Tucker, 262 Neb. 940, 636 N.W.2d 853
(2001). One well-recognized exception is a search undertaken
with consent. Wells, supra. To be effective under the Fourth
Amendment, consent must be voluntary; in other words, it
must be a free and unconstrained choice, not the result of
a will overborne. See Tucker, supra. In addition, where a
consensual search follows an illegal entry, as Bond alleges
occurred here, a court must determine whether the consent
was an exploitation of the prior illegality. See State v. Gorup,
279 Neb. 841, 782 N.W.2d 16 (2010). The search will be
upheld only if the State has shown a sufficient attenuation, or
break in the causal connection, between the illegal conduct
and the consent to search. See id. Because any illegality in the
investigators’ entry into the stairway or apartment will require
us to address the issue of attenuation, we address the legality
of the entries before addressing the voluntariness of the con-
sents to search.
We begin with the entry into the stairway leading to the
upstairs apartment door. The Nebraska Supreme Court has
explained that the degree of privacy society is willing to
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accord an apartment hallway depends on the facts, such as
whether there is an outer door locked to the street which
limits access, the number of residents using the hallway, the
number of units in the apartment complex, and the presence
or absence of no trespassing signage. State v. Ortiz, 257 Neb.
784, 600 N.W.2d 805 (1999). In this case, the upstairs apart-
ment was located in a business district and the street-level
door was unlocked. However, the street-level door led to one
apartment only; thus, the stairway was not shared among
multiple tenants. Bond suggests the enclosed stairway “should
be considered a porch area” in which she and Turner had an
expectation of privacy, brief for appellant at 16, and we see
no reason not to accept her invitation to treat it as such for
purposes of argument.
“The front porch is the classic exemplar of an area adjacent
to the home and ‘to which the activity of home life extends.’”
Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1415, 185
L. Ed. 2d 495 (2013), quoting Oliver v. United States, 466
U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). Although
a front porch is therefore a constitutionally protected area,
a police officer does not engage in an “unlicensed physical
intrusion” by entering that area to knock on the front door.
Jardines, 133 S. Ct. at 1415. See, also, Kentucky v. King, 563
U.S. 452, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) (law
enforcement officers not armed with warrant may knock on
door, because they do no more than any private citizen might
do). This is because a visitor, including a police officer, has
an implicit license to “approach the home by the front path,
knock promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave.” Jardines, 133 S. Ct. at 1415.
It is only when an officer exceeds the scope of that license,
such as by using a trained police dog to search the front porch
for incriminating evidence, that a Fourth Amendment violation
occurs. See Jardines, supra.
When the investigators and Willden ascended the stairs and
knocked on the apartment door with the hopes of speaking to
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Bond and Turner about the hotline report, they did nothing
to exceed the scope of their implicit license to approach the
door and knock. Any doubt about this conclusion is resolved
when one considers that Turner’s reaction to the knocking was
to say, “Come in,” which suggests Turner was not alarmed
to have visitors knocking on the upstairs door. Thus, even
assuming arguendo the enclosed stairway was the equivalent
of a porch area, as Bond suggests, no constitutional violation
occurred. See State v. Breuer, 577 N.W.2d 41 (Iowa 1998)
(holding that law enforcement officer without warrant did
not unreasonably invade suspect’s legitimate expectation of
privacy by opening unlocked outer door of apartment build-
ing and proceeding up stairway to apartment door). Although
Bond argues law enforcement did not have probable cause
to investigate her and Turner after an interview of Turner’s
sons did not substantiate the hotline report, no probable cause
is required for a “knock and talk” like the one that occurred
here. See King, supra (when law enforcement officers not
armed with warrant knock on door, they do no more than
any private citizen might do; no Fourth Amendment viola-
tion occurs).
We next address the entry into the apartment itself.
Generally, absent exigent circumstances, a law enforcement
officer must have a warrant or consent to enter a person’s
home. State v. Resler, 209 Neb. 249, 306 N.W.2d 918 (1981).
As stated, consent must be a free and unconstrained choice,
not the result of a will overborne. See State v. Tucker, 262
Neb. 940, 636 N.W.2d 853 (2001). Investigator Mann testi-
fied that after she knocked on the upstairs door and Turner
opened it, she identified herself and Willden, explained they
had received a complaint, and asked if they could “come
in and chat with him about it.” Turner said yes and invited
them inside. Investigator Kottwitz’ testimony was consist­
ent; however, Willden testified it was Bond who invited
them inside. Regardless of who extended the invitation,
there was no evidence that the entry into the apartment was
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anything but consensual; therefore, the entry into the apart-
ment was lawful.
We have concluded that the investigators’ entries into the
stairway and apartment were lawful; however, before we can
turn to the voluntariness of the consents to search, we must
address the legality of law enforcement’s presence in the
apartment for approximately 3 hours prior to obtaining the
consents to search. If law enforcement’s presence in the apart-
ment for this period constituted an unreasonable and “exces-
sively long seizure and detention,” as Bond contends, brief
for appellant at 16, we will be required to determine whether
there was a sufficient attenuation between the illegal seizure
and the consents to search. See State v. Gorup, 279 Neb. 841,
782 N.W.2d 16 (2010) (where consensual search follows ille-
gal police conduct, court must determine whether consent was
exploitation of prior illegality).
[4,5] Generally, a seizure in the Fourth Amendment context
occurs only if, in view of all the circumstances surrounding
the incident, a reasonable person would have believed that
he or she was not free to leave. State v. Hedgcock, 277 Neb.
805, 765 N.W.2d 469 (2009). A seizure may occur where an
officer directly tells a suspect that he or she is not free to go;
in addition, “circumstances indicative of a seizure may include
the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the citizen’s
person, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” Id.
at 815, 765 N.W.2d at 479.
At a minimum, no Fourth Amendment seizure occurred dur-
ing Bond and Turner’s initial interaction with the investigators
and Willden. The interaction consisted of a lawful entry into
the apartment, noncoercive questioning regarding the hotline
report, and observation of the children’s sleeping area and
Bond and Turner’s food supply. No reasonable person would
have believed he or she was not free to leave during this con-
sensual encounter.
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Likewise, no Fourth Amendment seizure of Bond and
Turner occurred when Investigator Mann learned Castro had
a warrant for his arrest and requested a patrol unit to transport
Castro to jail. According to Investigator Mann, this process
“took up some time”; however, Bond and Turner had no rea-
son to believe they were not free to leave merely because
Castro was being arrested on a warrant unrelated to the hotline
report investigation.
It was only after Castro was removed from the apartment
that the tenor of Bond and Turner’s interaction with the inves-
tigators changed. After Castro was removed, Investigator
Kottwitz observed a backpack, of which neither Bond nor
Turner claimed ownership; inside the backpack, which
Bond and Turner agreed could be searched, Investigator
Mann found drug paraphernalia and suspected methamphet-
amine. There was then a discussion about consent to search
the apartment and a discussion “amongst officers” about
whether to seek a search warrant. Bond, who unlike Turner
wanted to consent to a search of the apartment, requested
that Investigator Mann accompany her to the bathroom. In
the bathroom, Bond told Investigator Mann she would give
up “everything” and “wanted to know if that would kind
of make all this go away.” After Investigator Mann told
Bond she could not answer because she did not know what
Bond had, Bond led her to the bedroom, where she handed
the investigator a marijuana pipe, a methamphetamine pipe,
and a baggie with suspected methamphetamine. Investigator
Mann told Bond she still wanted to search the apartment,
and the two returned to the living room, where Bond dis-
cussed with Turner whether to give consent. Bond and Turner
could not agree, and Investigator Mann interrupted three
or four times, each time telling them “time’s ticking” and
asking for a decision. Eventually, Investigator Mann said
“time’s up” and left to seek a search warrant while Officer
Tjaden stood by in the apartment “to make sure no evidence
was destroyed.”
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Even assuming a seizure occurred during the prolonged
interaction that culminated with Officer Tjaden standing by
while Investigator Mann left to seek a search warrant, no
Fourth Amendment violation occurred. In Illinois v. McArthur,
531 U.S. 326, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001), the
U.S. Supreme Court held that police officers did not violate
the Fourth Amendment when they detained a man outside his
trailer home for approximately 2 hours while other officers
obtained a search warrant. In that case, police had probable
cause to believe the man’s home contained drugs; they had
good reason to fear that, unless restrained, the man would
destroy the drugs before they returned with a warrant; they
neither searched the trailer home nor arrested the man before
obtaining a warrant; and they restrained the man for a “lim-
ited period of time” of 2 hours. Id., 531 U.S. at 332. The
Court explained that it had “upheld temporary restraints where
needed to preserve evidence until police could obtain a war-
rant,” id., 531 U.S. at 334, 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,” id.
In the present case, unlike in McArthur, supra, police
did not restrain Bond and Turner outside of their apartment
while another officer obtained a warrant; instead, after the
investigators lawfully entered the apartment with the consent
of Bond and/or Turner, Officer Tjaden stood inside the resi-
dence observing Bond and Turner while Investigator Mann
left to obtain a warrant. However, we see no reason to treat
the alleged seizure of Bond and Turner inside their apartment
differently than the seizure that occurred outside the trailer
home in McArthur. As in McArthur, when Investigator Mann
left to obtain a search warrant, the investigators had probable
cause to believe the apartment contained drugs. Further, it
was reasonable for Investigator Mann to believe that if she
left Bond and Turner unsupervised in the apartment while
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she obtained a warrant, the two would destroy any remaining
evidence of drugs. Additionally, although Bond character-
izes the alleged detention as “excessively long,” brief for
appellant at 16, it was approximately the same length as, if
not shorter than, the detention in McArthur. Considering the
totality of the circumstances, we conclude the investigators’
conduct, assuming it constituted a Fourth Amendment sei-
zure, was reasonable.
Because we have concluded the investigators’ conduct prior
to obtaining consents to search was not illegal, we need not
address the issue of attenuation. Accordingly, we turn to the
issue of the voluntariness of the consents to search.
[6-8] Consent to search must be voluntarily given and not
the result of duress or coercion, whether express, implied,
physical, or psychological. See State v. Tucker, 262 Neb. 940,
636 N.W.2d 853 (2001). In examining all the surrounding
circumstances to determine if in fact a consent to search was
coerced, account must be taken of subtly coercive police ques-
tions, as well as the possibly vulnerable subjective state of
the person who consents. State v. Prahin, 235 Neb. 409, 455
N.W.2d 554 (1990). Mere submission to authority is insuf-
ficient. Tucker, supra. Where, as here, both occupants of a
jointly occupied premises are physically present, the consent
of one occupant to a search is insufficient when the other
occupant objects to the search. Georgia v. Randolph, 547 U.S.
103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006). See, also,
Fernandez v. California, ___ U.S. ___, 134 S. Ct. 1126, 188
L. Ed. 2d 25 (2014) (declining to extend Randolph, supra,
to situation where objecting occupant is absent when another
occupant consents).
[9,10] The determination of whether consent to search is
voluntarily given is a question of fact to be determined from
the totality of the circumstances. State v. Ready, 252 Neb.
816, 565 N.W.2d 728 (1997). The burden is upon the govern-
ment to prove that a consent to search was voluntarily given.
Prahin, supra.
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The district court’s finding that Bond voluntarily consented
to the search of the apartment was not clearly erroneous. From
the moment the issue of consent to search the apartment arose,
Bond wanted to consent to the search; it was only Turner who
was reluctant. There is no evidence that police pressured or
coerced Bond to consent to a search. Rather, the evidence
clearly established that Bond was eager to cooperate with the
investigators and even voluntarily handed Investigator Mann
her marijuana pipe, her methamphetamine pipe, and a baggie
with suspected methamphetamine. Bond’s consent to the search
was voluntary.
Regarding Turner’s consent to the search, the district court
found that “[i]f anyone overbore Turner’s will, it was Bond,
not the officers in question”; this finding was not clearly erro-
neous. There was little to no evidence that the investigators or
Officer Tjaden pressured Turner into consenting to a search of
the apartment. At most, the investigators discussed the issue
of consent to search with Bond and Turner and told them
they were leaving to obtain a search warrant after the two
could not agree on whether to consent. In Tucker, supra, the
Nebraska Supreme Court held that consent was not coerced
where officers repeatedly asked a suspect for permission to
enter his apartment to look for illegal items and threatened
to get a search warrant, eventually leading the suspect to
step back from the door with his arms raised and his hands
upward and outward. Here, there was much less evidence of
police pressure; in fact, when Turner ultimately agreed to
consent to a search, the only law enforcement officer pres-
ent in the apartment was Officer Tjaden, who was standing
by and never discussed the issue of consents to search with
the two suspects. Turner consented after Bond begged and
pleaded with him, not upon the prompting of any police offi-
cer. The district court properly upheld the consensual search
of the apartment.
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No Contact Condition of Probation.
Bond argues the court erred in imposing a condition of pro-
bation prohibiting her from having any contact with Turner.
She maintains she and Turner have been in a relationship for
8 years and that the PSR did not indicate she and Turner used
drugs together. She contends the provision is overbroad and
unrelated to her crime.
The State responds that Bond either invited the alleged error
or waived the issue. The State points out that Bond told the
court she would comply with a no-contact provision if one
was imposed and notes she did not object to such a provision
at the sentencing hearing. Although we recognize that during
allocution, Bond indicated she “would have to” comply with a
no-contact term of probation if one was imposed, we also note
she stated “[i]t would be very hard” and explained she could
not “shut off [her] feelings.” We decline to characterize this
as inviting the error of which she complains or of waiving the
issue for purposes of appeal. Therefore, we address the issue
on the merits.
As an initial matter, we note that the language of the
no-contact provision is ambiguous. The provision states that
Bond shall “[n]ot associate with individuals having a known
criminal record, on parole or probation except, by permis-
sion of the Probation Officer or any person in possession of
non-­prescribed controlled substances to include family and
significant others and specifically . . . Turner.” The provi-
sion could be read as an absolute prohibition on contact with
Turner; apparently, both Bond and the State have read it this
way. However, it could also be read as prohibiting contact
with Turner only if he is in possession of nonprescribed
controlled substances; under this reading, if Turner is not in
possession of nonprescribed controlled substances, then Bond
may have contact with him with her probation officer’s per-
mission (since Turner has a known criminal record). We need
not resolve the ambiguity, however, because even assuming
the provision imposes an absolute prohibition on contact
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with Turner, we conclude the provision was proper, as we
now explain.
[11] In State v. Rieger, 286 Neb. 788, 839 N.W.2d 282
(2013), the Nebraska Supreme Court vacated a term of proba-
tion that prohibited a defendant from having contact with her
husband. The defendant had been convicted of false reporting
after telling police she had caused her son’s bruising, when in
fact her husband had caused it. On appeal, she contended the
no-contact provision violated her fundamental rights inher-
ent in the marital relationship and was not reasonably related
to her rehabilitation. The court outlined the applicable law
as follows:
When a court sentences a defendant to probation, it
may impose any conditions of probation that are autho-
rized by statute. . . . The applicable statute provides that
“[w]hen a court sentences an offender to probation, it
shall attach such reasonable conditions as it deems nec-
essary or likely to insure that the offender will lead a
law-abiding life.” These include requiring the offender to
“meet his or her family responsibilities,” to “refrain from
frequenting unlawful or disreputable places or consort-
ing with disreputable persons,” and to “satisfy any other
conditions reasonably related to the rehabilitation of the
offender.” We construe these provisions to authorize a
no-contact condition of probation when it is reasonable
and necessary to the rehabilitative goals of probation.
Rieger, 286 Neb. at 792-93, 839 N.W.2d at 286, quoting Neb.
Rev. Stat. § 29-2262 (Cum. Supp. 2012). The court further
explained that when a term of probation prohibits or restricts
a probationer’s contact with a spouse, the term should be
narrowly tailored and reasonably related to the rehabilitative
proc­ess. Rieger, supra.
The court in Rieger, supra, held that the provision prohibit-
ing the defendant from having contact with her husband did
not satisfy these requirements. It determined there was no
evidence the provision was necessary to protect the defendant
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from her husband, and it was unclear from the record whether
the provision was necessary to protect the defendant’s chil-
dren. Id. Also, the broad no-contact provision was not nar-
rowly tailored, since less rigorous restrictions could have been
imposed to protect the children if necessary. Id.
The present case is distinguishable from Rieger in key
respects. Significantly, Bond is not married to Turner.
Furthermore, Bond informed the court at the sentencing hear-
ing that Turner had recently moved out of the apartment and
that prior to that, for “probably” the past year, Turner would
“come and go” and Bond and Turner would sleep in separate
rooms. Bond explained “it was really not a relationship.” We
do not believe that this “on again, off again” relationship is
entitled to the same constitutional protections as the marriage
in Rieger.
More important, however, the no-contact provision in the
present case serves an important rehabilitative purpose, unlike
the no-contact provision in Rieger, supra. As Bond’s PSR
revealed, she has a long history of substance abuse and a sig-
nificant drug-related criminal history. The PSR indicated Bond
was at high risk for recidivism and was in need of substance
abuse treatment. Although Bond contends the PSR did not indi-
cate she and Turner used drugs together, this is disingenuous;
the search of Bond and Turner’s apartment revealed drugs and
drug paraphernalia in the bedroom they shared at the time of
the search. It is difficult to imagine Bond achieving the goal
of rehabilitation in such an environment. The no-contact pro-
vision, in combination with the other terms of probation that
were focused on addressing Bond’s substance abuse problem,
was reasonably related to the rehabilitative process.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court for Hall County.
A ffirmed.