State v. Turner ( 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
23 Nebraska A ppellate R eports
STATE v. TURNER
Cite as 23 Neb. Ct. App. 897
State of Nebraska, appellee, v.
Paul J. Turner, appellant.
___ N.W.2d ___
Filed April 12, 2016. No. A-15-472.
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. 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.
3. ____: ____. 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.
4. 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.
5. 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.
6. ____: ____. In examining all the surrounding circumstances to deter-
mine if in fact a consent to search was coerced, account must be taken
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of subtly coercive police questions, as well as the possibly vulnerable
subjective state of the person who consents.
7. 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.
8. ____. The determination of whether consent to search is voluntarily
given is a question of fact to be determined from the totality of the
circumstances.
9. Search and Seizure: Proof. The burden is upon the government to
prove that a consent to search was voluntarily given.
Appeal from the District Court for Hall County: William T.
Wright, Judge. Affirmed.
Charles R. Maser for appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Bishop, Judge.
Following a bench trial in the district court for Hall County,
Paul J. Turner was convicted of possession of a controlled
substance (methamphetamine), a Class IV felony, see Neb.
Rev. Stat. § 28-416(3) (Cum. Supp. 2014); possession of drug
paraphernalia, an infraction, see Neb. Rev. Stat. § 28-441
(Reissue 2008); and possession of marijuana of 1 ounce or less,
an infraction, see § 28-416(13)(a). He appeals, contending the
district court erred in overruling his pretrial motion to suppress
evidence seized during an allegedly unconstitutional search
of his apartment. He further argues that without the evidence
resulting from the search, there was insufficient evidence to
establish his guilt. We affirm.
BACKGROUND
On January 21, 2014, Turner was charged by information
in the district court for Hall County with possession of a
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STATE v. TURNER
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methamphetamine (count I), possession of drug parapherna-
lia (count II), and possession of 1 ounce or less of marijuana
(count III). In a separate information filed in the district court
for Hall County on the same date, Turner’s girlfriend, Shannon
K. Bond, was charged with possession of methamphetamine.
Turner’s and Bond’s offenses allegedly occurred on December
3, 2013, in Hall County, Nebraska.
On May 14, 2014, Turner filed a motion to suppress evi-
dence seized during an allegedly unconstitutional search of
his apartment on December 3, 2013. He further requested
that any statements he made be suppressed, alleging the
statements were not freely and voluntarily made. On May
28, 2014, Bond filed a nearly identical motion to suppress in
her case.
Turner and Bond, 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.
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
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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 Turner nor Bond 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
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.
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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, Turner and Bond 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 Turner and Bond she was leav-
ing to apply for a search warrant, but Bond asked her to
wait. After Turner and Bond still could not reach a decision,
Investigator Mann said “time’s up” and left to seek a search
warrant. Prior to leaving, she patted Turner down for weapons,
but located none.
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 war-
rant application when Officer Tjaden called to inform her
that Turner and Bond had decided to consent to the search.
Investigator Mann, who had not completed the warrant applica-
tion, returned to the apartment, and Turner and Bond 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,
including a baggie containing a white crystalline substance
on the desk and folded up tinfoil with white residue in the
trash can.
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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 Turner and Bond
under arrest.
Upon further questioning, Investigator Mann testified that
when she returned to the apartment after leaving to prepare the
search warrant application, Officer Tjaden told her Turner had
been “manipulating something in his pocket” the entire time
she was gone. Investigator Mann asked for consent to search
Turner’s person, and he denied consent. Later, either before
or after Turner signed the consent-to-search form (Investigator
Mann believed it was after but she was not sure), Turner “stuck
his hands in his pocket real quick,” and the investigators asked
him to remove his hands. At that point, Turner said he was
going to empty his pockets, which he did. Turner pulled out a
black bag with two glass pipes with white residue, two metal
“pen pipes,” seven baggies with white residue, a baggie with a
white crystalline substance, and two cell phones.
On cross-examination, Investigator Mann testified that
prior to going to Turner and Bond’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 Turner and
Bond were “currently using.” The mother, who had custody of
the boys, did not know what occurred during the boys’ visits
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
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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 Turner and Bond, they
showed her the children’s sleeping area and Turner and Bond’s
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 Turner and Bond 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, Turner, and Bond. Officer Tjaden stood
in the doorway of the living room, and Turner and Bond sat on
the couch in the living room. Neither Turner nor Bond 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, Turner and Bond 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.
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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 Turner and Bond 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
Mann testified. Willden testified that following the visit to
the apartment, DHHS closed the investigation into the hotline
report as “unfounded.”
Turner and Bond 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 Turner’s and Bond’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 Turner and Bond 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.’”
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Turning to the issue of consent to search, the court found
that either Turner or Bond consented to the initial entry into
the apartment. The court then found that Turner and Bond
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.
Addressing the ultimate search of the entire apartment, the
court found it to be the only “potentially problematic” search.
The court noted Turner and Bond 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 discus-
sion between Turner and Bond 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 no constitutional violations in Turner’s
act of voluntarily emptying his pockets. In addition, the court
found that any statements made by Turner and Bond either
were volunteered without custodial 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 Turner and Bond’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
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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 Turner guilty of possession of metham-
phetamine (count I), possession of drug paraphernalia (count
II), and possession of 1 ounce or less of marijuana (count III).
After the court sentenced Turner to 20 to 60 months’ imprison-
ment on count I, and fines of $100 each on counts II and III,
Turner timely appealed to this court.
ASSIGNMENTS OF ERROR
Turner assigns (1) that “[t]here was insufficient evidence
to sustain the conviction,” (2) that his motion to suppress
“should have been sustained,” and (3) “[a]ny other improper
evidentiary rulings that took place during the Trial.” Because
Turner offers no argument in support of his third assignment
of error, we do not consider it. See State v. Huston, 291 Neb.
708, 868 N.W.2d 766 (2015) (to be considered by appellate
court, alleged error must be specifically assigned and argued).
Furthermore, Turner’s only argument in support of his first
assignment of error is that without the evidence challenged
in his motion to suppress, there was no evidence to prove his
guilt of the offenses charged; he does not contend that the
evidence, if properly admitted, was insufficient. Therefore, the
success of Turner’s appeal hinges on his 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,
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 protections
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is a question of law that we review independently of the trial
court’s determination. Id.
ANALYSIS
Turner challenges the search of his and Bond’s apartment
on a number of grounds. He 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; he maintains law
enforcement did not have probable cause to continue the
investigation beyond that point. He further argues the inves-
tigators “without authorization entered what should be con-
sidered a porch area wherein they should not have entered
without invitation.” Brief for appellant at 16. He 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. Turner
asserts his and Bond’s wills were overborne, resulting in
coerced consents.
[2] 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 Turner 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
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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
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 mul-
tiple tenants. Turner suggests the enclosed stairway “should
be considered a porch area” in which he and Bond had an
expectation of privacy, brief for appellant at 16, and we see
no reason not to accept his 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.
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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
Turner and Bond 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 Turner 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 open-
ing unlocked outer door of apartment building and proceeding
up stairway to apartment door). Although Turner argues law
enforcement did not have probable cause to investigate him
and Bond after an interview of Turner’s sons did not substan-
tiate 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 violation 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, con-
sent 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 testified 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
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about it.” Turner said yes and invited them inside. Investigator
Kottwitz’ testimony was consistent; however, Willden testi-
fied it was Bond who invited them inside. Regardless of who
extended the invitation, there was no evidence that the entry
into the apartment was anything but consensual; therefore, the
entry into the apartment 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 apart-
ment for approximately 3 hours prior to obtaining the consents
to search. If law enforcement’s presence in the apartment for
this period constituted an unreasonable and “excessively long
seizure and detention,” as Turner contends, brief for appellant
at 16, we will be required to determine whether there was a
sufficient attenuation between the illegal seizure and the con-
sents to search. See State v. Gorup, 279 Neb. 841, 782 N.W.2d
16 (2010) (where consensual search follows illegal police con-
duct, court must determine whether consent was exploitation
of prior illegality).
[3,4] 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 Turner and Bond’s initial interaction with the investigators
and Willden. The interaction consisted of a lawful entry into
the apartment, noncoercive questioning regarding the hotline
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report, and observation of the children’s sleeping area and
Turner and Bond’s food supply. No reasonable person would
have believed he or she was not free to leave during this con-
sensual encounter.
Likewise, no Fourth Amendment seizure of Turner and
Bond 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, Turner and Bond 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 apart-
ment that the tenor of Turner and Bond’s interaction with the
investigators changed. After Castro was removed, Investigator
Kottwitz observed a backpack, of which neither Turner nor
Bond claimed ownership; inside the backpack, which Turner
and Bond agreed could be searched, Investigator Mann found
drug paraphernalia and suspected methamphetamine. 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 con-
sent 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 meth-
amphetamine. Investigator Mann told Bond she still wanted to
search the apartment, and the two returned to the living room,
where Bond discussed with Turner whether to give consent.
Turner and Bond could not agree, and Investigator Mann
interrupted three or four times to tell them “time’s ticking”
and asked for a decision. Eventually, Investigator Mann said
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“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.”
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 Turner and Bond outside of their apartment
while another officer obtained a warrant; instead, after the
investigators lawfully entered the apartment with the consent
of Turner and/or Bond, Officer Tjaden stood inside the resi-
dence observing Turner and Bond while Investigator Mann
left to obtain a warrant. However, we see no reason to treat
the alleged seizure of Turner and Bond 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
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cause to believe the apartment contained drugs. Further, it
was reasonable for Investigator Mann to believe that if she
left Turner and Bond unsupervised in the apartment while
she obtained a warrant, the two would destroy any remaining
evidence of drugs. Additionally, although Turner 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 seizure,
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.
[5-7] 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).
[8,9] The determination of whether consent to search is
voluntarily given is a question of fact to be determined from
the totality of the circumstances. State v. Ready, 252 Neb.
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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.
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
erroneous. There was little to no evidence that the investiga-
tors 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 Turner and Bond 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 present 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 officer. The district court
properly upheld the consensual search of the apartment.
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Turner also raises some miscellaneous issues we must
address. He contends that Investigator Mann searched his per-
son on two occasions—once by patting him down for weapons
prior to leaving to obtain a search warrant and once after she
returned to the apartment. He contends “[t]hese searches are
the fruits of the illegal entry and anything resulting from those
searches is inadmissible.” Brief for appellant at 24. However,
the evidence at the suppression hearing was that Investigator
Mann’s first pat down of Turner revealed nothing. Investigator
Mann further testified that after she returned to the apartment,
Turner “stuck his hands in his pocket real quick,” and the
investigators asked him to remove his hands. At that point,
Turner said he was going to empty his pockets, which he
did, revealing suspected drugs and drug paraphernalia. As the
district court determined, Turner’s voluntary emptying of his
pockets was not a Fourth Amendment search.
Turner also asserts that all statements he made prior to
receiving warnings pursuant to Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), resulted from
custodial interrogation and should be suppressed (he does not
identify any specific statements). Having reviewed the record,
we conclude the district court properly determined that Turner
did not make any statements resulting from custodial inter-
rogation prior to the time he received warnings pursuant to
Miranda, supra.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court for Hall County.
A ffirmed.