State v. Zuniga

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www.nebraska.gov/apps-courts-epub/
04/17/2018 09:11 AM CDT
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STATE v. ZUNIGA
Cite as 25 Neb. App. 706State of Nebraska, appellee, v.
Gilberto Zuniga, appellant.
___ N.W.2d ___
Filed April 3, 2018. No. A-17-226.
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: Confessions: Miranda Rights: Motions to
Suppress: Appeal and Error. In reviewing a motion to suppress a
statement based on its claimed involuntariness, including claims that
law enforcement procured it by violating 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 historical facts, an appellate court reviews
the trial court’s findings for clear error. But whether those facts meet
constitutional standards is a question of law, which an appellate court
reviews independently of the trial court’s determination.
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. Warrantless Searches. The warrantless search exceptions recognized by
the Nebraska Supreme Court include: (1) searches undertaken with con-
sent, (2) searches under exigent circumstances, (3) inventory searches,
(4) searches of evidence in plain view, and (5) searches incident to a
valid arrest.
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Cite as 25 Neb. App. 7065. 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 result of a will overborne. Consent
must be given voluntarily and not as the result of duress or coercion,
whether express, implied, physical, or psychological.
6. Search and Seizure: Duress. In determining whether consent was
coerced, account must be taken of subtly coercive police questions,
as well as the possibly vulnerable subjective state of the person
who consents.
7. Constitutional Law: Search and Seizure. The Fourth Amendment
test for a valid consent to search is that the consent be voluntary, and
voluntariness is a question of fact to be determined from the totality of
the circumstances.
8. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
prohibits the use of statements stemming from the custodial inter-
rogation of a defendant unless the prosecution demonstrates the use
of procedural safeguards effective to secure the privilege against
self-incrimination.
9. Miranda Rights. Miranda protections apply only when a person is both
in custody and subject to interrogation.
10. Miranda Rights: Arrests: Words and Phrases. A person is in custody
for purposes of Miranda v. Arizona, 484 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), when there is a formal arrest or a restraint on one’s
freedom of movement to the degree associated with such an arrest.
11. Miranda Rights. Two inquiries are essential to the determination
of whether an individual is in custody for Miranda purposes: (1) an
assessment of the circumstances surrounding the interrogation and (2)
whether, given those circumstances, a reasonable person would have
felt that he or she was not at liberty to terminate the interrogation
and leave.
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Thomas R. Lamb and Hannah E. Carroll-Altman, Senior
Certified Law Student, of Anderson, Creager & Wittstruck,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
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STATE v. ZUNIGA
Cite as 25 Neb. App. 706Pirtle, Bishop, and A rterburn, Judges.
A rterburn, Judge.
INTRODUCTION
After a bench trial in the district court for Lancaster County,
Gilberto Zuniga was convicted of one count of delivery or pos-
session with intent to deliver methamphetamine. On appeal,
he challenges the district court’s order overruling his motion
to suppress evidence obtained during a warrantless search of
his apartment and his motion to suppress statements he made
to police at the time of the search. For the following reasons,
we affirm.
BACKGROUND
On August 1, 2016, the State filed an amended informa-
tion charging Zuniga with delivery or possession with intent
to deliver methamphetamine, a Class II felony. Prior to trial,
Zuniga filed a motion to suppress the evidence obtained dur-
ing a warrantless search of his apartment. He alleged that
the search did not fall under any recognized exception to the
warrant requirement because he did not validly consent to the
search nor was there probable cause to justify the search. In
his motion to suppress, Zuniga also asked that the statements
he made to police at the time of the search be suppressed. He
alleged that the statements resulted from custodial interroga-
tion that occurred before he was advised of his rights pursuant
to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
The district court held a suppression hearing. At the hear-
ing, Zuniga argued to the district court that he did not validly
consent to a search of his apartment. Zuniga argued that law
enforcement officers induced his consent by leading him “to
believe that if he led them inside of the apartment, [and gave]
them the drugs that nothing would happen.” The State called
the three law enforcement officers who were present during the
search of Zuniga’s apartment to testify that Zuniga’s consent to
search was, in fact, valid.
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Cite as 25 Neb. App. 706Officer Robert Hallowell testified first. He was assigned
as an investigator with a narcotics task force. On May 20,
2015, he and Officers Anthony Gratz and Christopher Monico
were involved in an investigation at the apartment building
where Zuniga lived. The officers had received information
that Zuniga was selling narcotics out of the apartment build-
ing; however, they were unsure of the exact apartment Zuniga
lived in.
At around 8:45 p.m. on May 20, 2015, the officers arrived
at Zuniga’s apartment building. All three were wearing plain
clothes, but they each had a lanyard around their neck with
their badge displayed. Officer Hallowell testified that after they
arrived at Zuniga’s apartment building, Officer Gratz placed a
telephone call to Zuniga and told him that his vehicle had been
involved in “a hit and run.” Officer Gratz asked Zuniga to
come outside and speak with police about his vehicle. Officer
Hallowell admitted that the substance of the telephone call
was a “ruse” in order to get Zuniga to come outside. Officer
Hallowell also testified that the ruse was successful and that
Zuniga came outside to check on his vehicle.
When Zuniga approached his vehicle, the officers explained
why they were actually there. Specifically, Officer Hallowell
testified that they informed Zuniga that they had information
he was in possession of a large quantity of methamphetamine
for the purpose of selling it. In fact, they told Zuniga that
they knew where in his apartment the drugs were located. The
officers indicated that they wanted Zuniga to turn the drugs
over to them. Officer Hallowell testified that he did recall that
Officer Gratz told Zuniga his goal was to make sure drugs
were not going to be sold out of Zuniga’s apartment anymore.
Zuniga did not deny possessing the drugs.
Officer Hallowell testified that he did not participate much
in the portion of the conversation with Zuniga that occurred
next to Zuniga’s vehicle. Instead, he stood “a little bit further
away,” so that Zuniga would not feel surrounded. However,
Officer Hallowell testified that Zuniga did indicate to the
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Cite as 25 Neb. App. 706officers that he wanted to be honest with them. Zuniga also
told them about a prior incident with police where he felt like
he had been “set up.” Officer Hallowell described a “back and
forth” between the officers and Zuniga about whether they
could enter his apartment. After about 30 minutes, Zuniga led
officers into his apartment.
Once inside the apartment, Officer Hallowell joined Officer
Gratz in continuing to speak with Zuniga about there being
drugs in the apartment. The two officers asked Zuniga two
or three times whether he would allow them to look inside
a drawer located next to the sink in his kitchen. Officer
Hallowell testified that Zuniga continued to talk about his prior
experience with police and about his desire to be honest. After
about 10 to 15 minutes of conversation inside the apartment,
Zuniga agreed to allow officers to look in the kitchen drawer.
Inside the drawer was a clear plastic baggie which contained a
white crystalline substance resembling methamphetamine and
a black digital scale. Subsequent to the search of the drawer,
Zuniga was arrested. Officer Hallowell testified that up to the
point in time when Zuniga was formally arrested, he was never
told that he could not leave, nor did he ever ask to leave or try
to leave.
At the jail, Officer Hallowell advised Zuniga of his Miranda
rights and then proceeded to ask him about the drugs found
in his apartment. During this interview, Zuniga revealed to
Officer Hallowell where he had obtained the methamphet-
amine and revealed that he had been selling methamphetamine
for approximately 4 months and had between 5 and 10 regu-
lar customers.
Officer Gratz also testified about the events which occurred
on May 20, 2015. Officer Gratz testified that he placed a tele-
phone call to Zuniga from outside his apartment building “in
hopes that he would come out so we could have a conversa-
tion with him.” During the telephone call, Officer Gratz told
Zuniga that he was a police officer and that Zuniga’s vehicle
may have been involved in an accident. At first, Zuniga told
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STATE v. ZUNIGA
Cite as 25 Neb. App. 706Officer Gratz that his vehicle was equipped with a loud alarm
and that he would have heard the alarm if his vehicle had been
struck by another vehicle. Eventually, though, Zuniga agreed
to come outside.
After Zuniga came outside and approached his vehicle, the
officers informed him that they were narcotics investigators and
that they actually wanted to talk with him about his involve-
ment with using and selling drugs from his apartment. Officer
Gratz testified that once Zuniga knew why the officers were
actually there, he became nervous and looked down and away
from the officers. His breathing became rapid. Zuniga began
talking about his previous involvement with law enforcement.
He indicated his belief that he had been previously “set up” by
an informant and law enforcement and was, as a result, arrested
with a large quantity of narcotics. Officer Gratz testified that
he asked Zuniga two or three times if they could continue their
conversation inside his apartment because it was cold outside.
Zuniga “eventually” said he was “okay with that” and led the
officers into his apartment. Officer Gratz testified that the con-
versation with Zuniga outside of his apartment building lasted
approximately 30 to 45 minutes.
Once inside the apartment, the officers and Zuniga “had
[a] lengthy period of casual conversation about things other
than drugs” which lasted approximately 5 or 10 minutes.
Then, Zuniga sat down in a chair and Officer Gratz asked him
if he was going to be honest. Officer Gratz testified that he
told Zuniga that the officers wanted this to be “the last day
that drugs were being used or sold” in the apartment. Zuniga
agreed that “things needed to change.” He then transitioned
into talking about his prior arrest again. Zuniga told Officer
Gratz that he did not want to go back to prison. Officer Gratz
testified that he told Zuniga that it was not his goal to send
Zuniga to prison. Instead, his goal was to stop the selling
of drugs out of Zuniga’s apartment. Officer Gratz testified
that he never promised Zuniga he would not go to prison if
he cooperated.
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Cite as 25 Neb. App. 706After 15 to 20 minutes of conversation inside the apartment,
Officer Gratz asked Zuniga if he could look in two kitchen
drawers where he believed the drugs were located. Officer
Gratz testified that after a lengthy pause, Zuniga consented
to officers’ looking in the drawers. Upon searching one of
the drawers, officers found a baggie containing what Officer
Gratz believed to be methamphetamine and a digital scale.
Subsequent to the search of the drawer, Zuniga was arrested.
Officer Gratz testified that about 45 minutes passed between
the officers’ entering Zuniga’s apartment and placing him
under arrest.
Officer Monico testified similarly about the events of May
20, 2015. Officer Monico testified that when Zuniga came
outside to inspect his vehicle, the officers contacted him and
identified themselves as officers with the narcotics task force.
They told Zuniga they wanted to talk to him about him selling
methamphetamine from his apartment. Officer Monico testified
that once officers revealed the actual reason they were contact-
ing Zuniga, his “level of nervousness was visibly apparent and
rose.” Officer Monico stated, “I remember specifically he put
a hand up on his car and leaned over on it and hung his head
and began staring at the ground.” Zuniga then told the officers
about a prior situation in which he had been arrested on drug
charges. Specifically, Zuniga felt he had been “wronged” on
this previous occasion when he had let law enforcement into
his home and they began searching everywhere. Zuniga told
Officers Hallowell, Gratz, and Monico that he wanted to be
honest with them, but he was afraid he would go to prison.
Officer Monico testified that Zuniga indicated that he did have
drugs in his apartment, but he was “hesitant to say exactly
how much.”
Officer Monico testified that he and the other officers asked
Zuniga multiple times if they could go inside his apartment
to continue their conversation because it was cold outside.
Eventually, after “[a]t least a half hour,” Zuniga agreed to let
the officers inside. He escorted the officers to the apartment
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Cite as 25 Neb. App. 706door, opened the door, and allowed the officers to follow
him inside.
Once inside the apartment, Officer Monico overheard Officer
Gratz tell Zuniga that he believed the methamphetamine was in
a particular drawer in the kitchen. Officer Monico also over-
heard Zuniga express concern and fear about going to prison.
Officer Gratz responded that sending Zuniga to prison was not
his goal. Sometime after this exchange, Zuniga gave officers
permission to search the kitchen drawer. Inside the drawer
was a baggie with what Officer Monico believed to be meth-
amphetamine and a digital scale. Subsequent to the search of
the drawer, Zuniga was placed under arrest. Officer Monico
testified that officers spent a total of approximately 45 to 50
minutes inside Zuniga’s apartment.
We note that Zuniga did not testify at the suppression hear-
ing, nor did he present any other evidence.
In a written order, the district court denied Zuniga’s motion
to suppress evidence and motion to suppress statements.
Regarding the motion to suppress evidence, the court stated,
“Having considered the totality of the circumstances . . . the
court concludes [Zuniga’s] consent to search was given freely,
intelligently, and voluntarily.” In coming to this conclusion, the
district court made the following factual findings:
In this case, [Zuniga’s] age is not readily apparent from
the record, but he physically appears older than 30 years
of age. There is no evidence [Zuniga] suffers from any
mental impairment. There is no evidence he was under
the influence of drugs or alcohol during his discussion
with Investigators. [Zuniga] was not informed of his
Miranda rights prior to his consent to search. [Zuniga]
has had prior involvement with law enforcement and
the criminal justice system. [Zuniga] was outside with
investigators for 30-45 minutes after which he consented
to Investigators entering his apartment. Investigators
were then inside the apartment for 10-20 minutes before
[Zuniga] gave consent to search. The request for consent
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Cite as 25 Neb. App. 706was made 2-3 times before it was given. There were
no threats, physical intimidation or punishment used to
obtain consent. No promises were made by Investigators
but statements were made that it was not the goal to arrest
[Zuniga]. Consent was given inside [Zuniga’s] apart-
ment in “familiar surroundings”. At no time during the
discussions did [Zuniga] ask to leave nor did he ask
Investigators to leave. [Zuniga] was not told he could not
leave, and [he] did not ask for counsel.
Regarding the motion to suppress statements, the court
found that Zuniga was not in custody at the time of the search
of his apartment. As such, law enforcement was not required to
inform him of his Miranda rights.
The matter proceeded to a stipulated bench trial. The State
introduced an exhibit which contained police reports, prop-
erty reports of the items seized during the search, and a
laboratory report showing that the substance seized from the
drawer in Zuniga’s kitchen tested positive for methamphet-
amine. Zuniga objected to the exhibit based on the arguments
raised in his motion to suppress, and the court overruled the
objection. Zuniga then introduced into evidence various exhib-
its, including the deposition testimony of Officers Hallowell,
Gratz, and Monico. The district court found Zuniga guilty
of delivery or possession with intent to deliver methamphet-
amine. Subsequently, the court sentenced Zuniga to 8 to 12
years’ imprisonment.
Zuniga appeals.
ASSIGNMENTS OF ERROR
Zuniga asserts that the district court erred in overruling his
motion to suppress the evidence obtained during the search
of his apartment and his motion to suppress the statements he
made to police at the time of the search.
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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Cite as 25 Neb. App. 706we 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] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating 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), we apply a two-
part standard of review. State v. DeJong, 287 Neb. 864, 845
N.W.2d 858 (2014). Regarding historical facts, we review the
trial court’s findings for clear error. Id. Whether those facts
meet constitutional standards, however, is a question of law,
which we review independently of the trial court’s determina-
tion. Id.ANALYSIS
Motion to Suppress Evidence.
Zuniga maintains that it was error to overrule his motion to
suppress evidence obtained during the warrantless search of
his apartment. He argues that he did not freely and voluntarily
consent to officers’ looking inside his kitchen drawer. Rather,
Zuniga contends that his “consent was the result of coercion,
and based upon lies by police.” Brief for appellant at 9. He
asserts that the officers lied to him in order to get him to come
outside of his apartment and lied to him again when they told
him he would not go to prison if he cooperated and turned
over the drugs.
[3,4] 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). The warrantless search exceptions recognized by
the Nebraska Supreme Court include: (1) searches under-
taken with consent, (2) searches under exigent circumstances,
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Cite as 25 Neb. App. 706(3) inventory searches, (4) searches of evidence in plain view,
and (5) searches incident to a valid arrest. Wells, supra.
[5-7] To be effective under the Fourth Amendment, consent
to a search must be a free and unconstrained choice and not
the result of a will overborne. Tucker, supra. Consent must be
given voluntarily and not as the result of duress or coercion,
whether express, implied, physical, or psychological. Id. In
determining whether consent was coerced, account must be
taken of subtly coercive police questions, as well as the pos-
sibly vulnerable subjective state of the person who consents.
See State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990).
Mere submission to authority is insufficient to establish con-
sent to search. Tucker, supra. The Fourth Amendment test for
a valid consent to search is that the consent be voluntary, and
voluntariness 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 on the State to prove that
consent to search was voluntarily given. Prahin, supra.Based on the evidence presented at the suppression hearing,
the district court’s finding that Zuniga’s consent to search the
drawer was given freely, intelligently, and voluntarily was not
clearly erroneous. As such, we affirm the denial of Zuniga’s
motion to suppress the evidence found in the drawer.
While we agree with Zuniga’s general assertion that the
police used deception in order to get him to come outside of
his apartment, we do not find that such deception invalidated
Zuniga’s subsequent consent to search the kitchen drawer. The
Nebraska Supreme Court has held that police deception which
is not coercive in nature will not invalidate an individual’s
consent to search if the record otherwise shows the consent
was voluntary. State v. Hedgcock, 277 Neb. 805, 765 N.W.2d
469 (2009).
Officer Hallowell admitted during his testimony that he
and Officers Gratz and Monico used a ruse in order to get
Zuniga to come outside of his apartment building so they
could speak with him. However, once Zuniga was outside,
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Cite as 25 Neb. App. 706the officers immediately told him of the real reason they
were there. They informed Zuniga that they had information
he was using and selling drugs out of his apartment and that
they wanted him to turn the drugs over to them. After the offi-
cers revealed their deception to Zuniga, he did not tell them
to leave nor did he ever indicate he did not want to talk to
them. In fact, he told the officers that he wanted to be honest
with them about the drugs. And, after approximately 30 to 45
minutes of conversation with the officers outside of Zuniga’s
apartment building, he agreed to allow the officers inside of
his apartment. Ultimately, the evidence presented at the sup-
pression hearing reveals that the initial deception used by the
officers was quickly corrected upon the officers’ contacting
Zuniga near his vehicle. Accordingly, we do not find that this
deception was coercive in nature or that it invalidated either
Zuniga’s consent to enter his apartment or his ultimate con-
sent to search his kitchen drawer.
We do not agree with Zuniga’s assertion that the police
deceived him again by telling him he would not be arrested
if he cooperated and turned over the drugs in his apartment.
In fact, in its order, the district court found that Officer Gratz
had specifically testified that he did not promise Zuniga that
he would not go to prison if he cooperated. The district court
found this testimony to be credible, and we recognize that the
district court was the finder of fact and take into consideration
that it observed the witnesses. See Ready, supra. We do find,
as did the district court, that Officer Gratz indicated to Zuniga
that it was not his goal to arrest him, but that it was his goal
to remove the drugs from the apartment. This statement comes
close to being a misrepresentation or a promise not to arrest.
However, in this case, in light of the other factors surround-
ing Zuniga’s consent to search the drawer, we do not find that
Officer Gratz’ statement was enough to cause Zuniga’s will to
be overborne or to invalidate the consent.
Of particular importance in our analysis of the voluntari-
ness of Zuniga’s consent is his prior experience with law
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Cite as 25 Neb. App. 706enforcement. Zuniga repeatedly told the officers involved in
this case that he had been previously arrested as a result of
his possession of a large quantity of drugs. He informed the
officers that he felt he had been treated unfairly at the time
of this previous arrest, in part because he felt police had
searched his home without his full consent. Given Zuniga’s
past experience, he clearly understood the effect of his giv-
ing consent to search the kitchen drawer. In addition, he
understood the effect of his being in possession of drugs.
Moreover, there was no evidence presented at the suppression
hearing that Zuniga’s interactions with the officers included
threats, physical intimidation, or punishment. According to
the officers’ testimony, one officer typically stayed away from
the immediate vicinity of the conversation, whether inside
the apartment or outside in the parking lot, so as not to sur-
round Zuniga. The evidence reveals that the officers had a
calm and professional conversation with Zuniga about his use
and selling of drugs from his apartment. During the interac-
tion, which lasted approximately an hour or less, Zuniga
never asked the officers to leave, never tried to leave himself,
and never indicated that he no longer wanted to speak with
the officers.
Given the totality of the circumstances present in this case,
the district court’s finding that Zuniga’s consent to search the
drawer was given freely, intelligently, and voluntarily was not
clearly erroneous. However, we note that under a different set
of facts, Officer Gratz’ statement that it was not his goal to
arrest or imprison someone could lead to a different result. We
leave that determination for another case.
Motion to Suppress Statements.
Zuniga argues that the district court erred in overruling his
motion to suppress the statements he made to police before
and during the search of the drawer. He asserts that the state-
ments he made were the result of a custodial interrogation and
that he was not, at that time, advised of his rights pursuant to
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Cite as 25 Neb. App. 706Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
[8-11] Miranda, supra, prohibits the use of statements stem-
ming from the custodial interrogation of a defendant unless
the prosecution demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.
State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
Miranda protections apply only when a person is both in cus-
tody and subject to interrogation. State v. Juranek, 287 Neb.
846, 844 N.W.2d 791 (2014). A person is in custody for pur-
poses of Miranda when there is a formal arrest or a restraint
on one’s freedom of movement to the degree associated with
such an arrest. State v. Landis, 281 Neb. 139, 794 N.W.2d 151(2011). Two inquiries are essential to this determination: (1) an
assessment of the circumstances surrounding the interrogation
and (2) whether, given those circumstances, a reasonable per-
son would have felt that he or she was not at liberty to termi-
nate the interrogation and leave. State v. Rogers, 277 Neb. 37,
760 N.W.2d 35 (2009).
The Nebraska Supreme Court, quoting U.S. v. Axsom, 289
F.3d 496 (8th Cir. 2002), has applied “‘six common indicia of
custody which tend either to mitigate or aggravate the atmos­
phere of custodial interrogation.’” State v. Mata, 266 Neb.
668, 682, 668 N.W.2d 448, 466 (2003), abrogated on other
grounds, Rogers, supra. Those indicia are as follows: (1)
whether the suspect was informed at the time of questioning
that the questioning was voluntary, that the suspect was free
to leave or request the officers to do so, or that the suspect
was not considered under arrest; (2) whether the suspect pos-
sessed unrestrained freedom of movement during questioning;
(3) whether the suspect initiated contact with authorities or
voluntarily acquiesced to official requests to respond to ques-
tions; (4) whether strong-arm tactics or deceptive stratagems
were used during questioning; (5) whether the atmosphere of
the questioning was police dominated; and (6) whether the
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Cite as 25 Neb. App. 706suspect was placed under arrest at the termination of the pro-
ceeding. See id.The Nebraska Supreme Court has also identified other cir-
cumstances relevant to the custody inquiry: (1) the location
of the interrogation and whether it was a place where the
defendant would normally feel free to leave; (2) whether the
contact with the police was initiated by them or by the person
interrogated, and, if by the police, whether the defendant vol-
untarily agreed to the interview; (3) whether the defendant was
told he or she was free to terminate the interview and leave at
any time; (4) whether there were restrictions on the defendant’s
freedom of movement during the interrogation; (5) whether
neutral parties were present at any time during the interroga-
tion; (6) the duration of the interrogation; (7) whether the
police verbally dominated the questioning, were aggressive,
were confrontational, were accusatory, threatened the defend­
ant, or used other interrogation techniques to pressure the sus-
pect; and (8) whether the police manifested to the defendant
a belief that the defendant was culpable and that they had the
evidence to prove it. Rogers, supra.
Upon our review, we conclude that the district court’s
finding that Zuniga was not in custody at the time he made
the statements was not clearly erroneous. We recognize that
some of the circumstances surrounding the making of the
statements could tend to support a finding that Zuniga was in
custody. For example, contact with Zuniga was initiated by
the officers and Zuniga was never told he was free to termi-
nate the interaction with the officers. In addition, the officers
clearly informed Zuniga that they knew he was in possession
of drugs and, in fact, knew where in his apartment he kept
those drugs. Zuniga was arrested after the drugs were located
by the officers.
However, the evidence which supports the district court’s
finding overcomes the foregoing factors. Zuniga was first
located in the parking lot of his apartment building and then
was in his own apartment. He was not at the police station or
- 721 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. ZUNIGA
Cite as 25 Neb. App. 706in an unfamiliar environment. The officers did not physically
restrain Zuniga or in any way impede his movement. There is
no indication that Zuniga was not free to ask the officers to
leave and terminate the interview. There was no evidence that
the officers used threats, physical intimidation, or punishment
to coerce Zuniga into speaking with them. As we stated above,
the evidence demonstrated that the interaction between Zuniga
and the officers was consensual and that Zuniga was coopera-
tive. Zuniga spoke with officers freely and never denied his
possession of drugs. There was no intensive or high pressure
interrogation of Zuniga. In fact, Officer Gratz testified that
once Zuniga and the officers entered Zuniga’s apartment, they
all engaged in a “casual conversation” about things other than
drugs. According to the evidence, more than one such interlude
occurred during the course of the interview. Finally, we must
reiterate that the evidence was clear that Zuniga was not a nov-
ice in dealing with law enforcement and repeatedly expressed
a level of distrust regarding their intentions. Nonetheless, he
ultimately agreed to talk with them.
In light of all the surrounding circumstances, we conclude
that the district court’s finding that Zuniga was not in custody
is not clearly erroneous.
CONCLUSION
For the reasons stated above, we affirm the decision of the
district court to overrule both Zuniga’s motion to suppress
evidence and motion to suppress statements. We, therefore,
affirm Zuniga’s conviction.
A ffirmed.