State v. Schriner

303 Neb. 476

929 N.W.2d 514

STATE of Nebraska, appellee,

v.Clint W. SCHRINER, appellant.

No. S-18-893.

Supreme Court of Nebraska.

Filed June 28, 2019

Steven J. Mercure, of Nestor & Mercure, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

Clint W. Schriner was charged with and convicted of manufacturing a controlled substance (marijuana) within 1,000 feet of a school under Neb. Rev. Stat. § 28-416 (Reissue 2016), a Class II felony, and possession of a controlled substance (methamphetamine) under § 28-416, a Class IV felony. The district court sentenced Schriner to 1 to 5 years' imprisonment and 2 to 2 years' imprisonment respectively, to be served consecutively. Schriner appeals his convictions, solely asserting that the lower court erred in denying his motion to suppress based upon alleged violations of his Fourth Amendment and Fifth Amendment rights during his encounter with law enforcement.

BACKGROUND

ARREST

In October 2016, Richardson County Deputy Sheriff Jonathan Kirkendall was serving civil papers in Humboldt, Nebraska, when he noticed a strong odor of marijuana. Kirkendall was told by local residents that the smell was coming from a neighboring house.

After speaking to these residents, Kirkendall confirmed that the odor was emanating from the identified house. He then approached the house and knocked on the door. Schriner answered the door in his pajamas and came outside to his porch area. When doing so, Schriner shut the door behind him and locked himself out of his house.

When Kirkendall first made contact with Schriner, he observed that there was an overwhelming odor of marijuana being emitted both from within Schriner’s residence and from Schriner’s person. When asked about the odor, Schriner admitted that he had recently smoked marijuana.

Kirkendall then asked Schriner to remain on the porch while Kirkendall called the sheriff to inquire as to how to proceed. Schriner asked whether he could go inside to get dressed, to which Kirkendall replied, " ‘Not right now, Sir.’ " Schriner then started toward the door, and Kirkendall again asked Schriner to stay out of the residence.

While on the telephone with the sheriff, Kirkendall asked Schriner for consent to search the house. Schriner refused to give consent. Kirkendall told Schriner that the next step was to "request a search warrant," to which Schriner replied, " ‘Fine. Do what you gotta do.’ " At that point, Schriner again attempted to go back inside the house, but Kirkendall told him that he was not allowed to go back inside the house for fear that Schriner would destroy evidence.

Schriner, while still standing on his front porch, used his cell phone to call his sister and told her he was being detained by law enforcement. Specifically, Schriner said, "Hey hun, I got ... a cop at my door saying because he smells weed outside ... I'm like detained outside my house right now.... And he’s ... talking to the sheriff right now." Schriner testified that in that moment, he believed he was being detained. However, Kirkendall never told Schriner that he was not free to leave.

Schriner asked Kirkendall if a search warrant was going to be granted. Kirkendall responded that the sheriff was "going to write one." At that point, Schriner started asking for leniency. He asked Kirkendall whether he would "cut [him] a break if [he] let [him] in" and whether he would "look the other way for 5 minutes, while [he got] rid of something." That "something," per Schriner, was a small amount of methamphetamine that he did not want to get charged with.

After Schriner disclosed that he had methamphetamine in his residence, Kirkendall discussed with Schriner the possibility of his cooperating on the methamphetamine "aspect of [the situation]." At the same time, Kirkendall again started speaking on the telephone with the sheriff. While Kirkendall was on the telephone, Schriner said that "the neighbors are watching right now" and asked Kirkendall, "Can we go inside the house? Let’s just go inside the house. Might as well, you're getting a fucking search warrant."

Schriner also said that he wanted to call his sister to inform her that he was probably going to be arrested. To that, Kirkendall replied, "No, that, that’s not, that’s not what I'm doing." Schriner was surprised by this response and invited Kirkendall into the residence to "talk about it." Kirkendall accepted the invitation to enter the residence.

Schriner spent approximately 15 minutes trying to get back inside his house. He finally managed to get back inside by removing a windowpane from the back door and manually unlocking it. Upon entering the residence, Schriner led Kirkendall throughout the house, showing him his marijuana grow operation, his various pieces of drug paraphernalia, and the small amount of methamphetamine in his possession. In all, Schriner had approximately 65 marijuana plants, the equipment to grow them, numerous other pieces of drug paraphernalia, and baggies of methamphetamine.

Kirkendall told Schriner that he was going to arrest him, but before actually doing so, Kirkendall let Schriner change his clothes, smoke a cigarette, make various telephone calls, and say good-bye to his pets. Kirkendall and Schriner then walked outside, where Schriner was handcuffed and placed in the patrol vehicle. Kirkendall and another officer then collected the evidence from the house.

Throughout his interaction with law enforcement, without being questioned, Schriner made a number of statements regarding his current situation with law enforcement and the drugs in his possession. Kirkendall generally reacted by indicating he had heard the statements. Kirkendall asked a few questions in response to some of Schriner’s remarks. Many of the volunteered statements made by Schriner were incriminating. Notably, after being handcuffed and placed in Kirkendall’s patrol vehicle, Schriner made a number of incriminating statements including, "I was growing some weed," "They tend to frown on that," "It helps my back," and "You guys can just lose that meth; you don't know how much I appreciate that."

MOTION TO SUPPRESS

Based on the evidence, the State charged Schriner with manufacturing a controlled substance (marijuana) within 1,000 feet of a school under § 28-416, a Class II felony; possession of a controlled substance (methamphetamine) under § 28-416, a Class IV felony; and possession of drug paraphernalia under Neb. Rev. Stat. § 28-441 (Reissue 2016), an infraction.

Prior to trial, Schriner moved to suppress the physical evidence seized from his house as well as any statements made to law enforcement during his interaction with Kirkendall. Schriner argued that suppression was warranted based on alleged violations of his Fourth Amendment and Fifth Amendment rights. Schriner argued that the suppression was warranted because (1) he was unlawfully seized, in violation of the Fourth Amendment; (2) his statements were improperly obtained under Miranda v. Arizona ,¹ in violation of the Fifth Amendment; and (3) his consent to the search was coerced, based on Kirkendall’s indication that he had a search warrant, in violation of the Fourth Amendment.

At the hearing, Kirkendall testified as described above, noting that Schriner was not arrested until after he led Kirkendall throughout the house; that he did not give Miranda warnings to Schriner during the contact; and that he never told Schriner that he had a search warrant or that one would be granted. In addition to this testimony, the State offered into evidence a 1-hour video recording from Kirkendall’s body camera of the interaction. The recording was received into evidence without objection.

Schriner testified at the hearing that he felt like he was detained early during his interaction with Kirkendall and that he allowed Kirkendall inside his residence only because he thought a search warrant was being issued.

The district court granted in part and overruled in part Schriner’s motion to suppress. The district court granted a portion of Schriner’s request to suppress his statements involving a short exchange after Schriner had been informed that he was going to be arrested. Specifically, Kirkendall asked Schriner the following questions while Schriner was handcuffed and placed in the back of Kirkendall’s patrol vehicle: "Alright, what’s this used for?"; "To smoke oil?"; "Is there any oil in it?"; and "Do you have any additional oil anywhere else?" The district court concluded that these questions by Kirkendall were part of a custodial interrogation without Miranda warnings. Thus, the court sustained Schriner’s motion to suppress as to his responses to the specific questions listed above.

The district court overruled the remainder of Schriner’s motion because the court concluded that (1) the initial seizure of Schriner was appropriate, (2) Schriner’s other statements were not made during a custodial interrogation, and (3) Schriner’s consent to the search of his residence was not a result of coercion, intimidation, or any improper promises or threats.

TRIAL

At a bench trial, the State called three witnesses to testify. Kirkendall again testified about his observations during his encounter with Schriner on the day of the arrest and that Schriner’s house was located approximately 689 feet from a nearby school. The State also called an evidence custodian and a forensic scientist to testify about the various substances recovered from Schriner’s house. The footage from Kirkendall’s body camera was admitted into evidence over Schriner’s objection.

During trial, Schriner repeatedly renewed his objections regarding physical evidence and Schriner’s statements during his encounter with Kirkendall on the same grounds as presented in his motion to suppress. After repeatedly overruling Schriner’s objections, the district court granted a standing...