State v. Sharp
| Decision Date | 11 February 2011 |
| Docket Number | No. S–10–622.,S–10–622. |
| Citation | 795 N.W.2d 638,281 Neb. 130 |
| Parties | STATE of Nebraska, appellee,v.Rocky J. SHARP, appellant. |
| Court | Nebraska Supreme Court |
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on the Fourth Amendment, an appellate court will uphold its findings of fact unless they are clearly erroneous. But an appellate court reviews de novo the trial court's ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search.
Thomas C. Riley, Douglas County Public Defender, and Leslie E. Cavanaugh for appellant.Jon Bruning, Attorney General, and Stacy M. Foust for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.STEPHAN, J.
Rocky J. Sharp appeals his conviction and sentence on one count of possession with intent to deliver a controlled substance. The primary issue on appeal is whether a search warrant for Sharp's residence and person authorized a search of his person which was conducted approximately 1 1/2 blocks from the residence. We conclude that it did.
On March 1, 2010, Omaha police officer Kalon Fancher submitted an affidavit and application for issuance of a search warrant to the county court for Douglas County. The affidavit stated that Fancher had reasonable grounds to believe that
[c]rack cocaine and its derivatives, ... scales and packaging materials commonly used in the distribution of illicit drugs[,] monies and proceeds associated with the sales of illicit drugs[,] firearms and ammunition used to protect an illegal narcotics operation[, and] [r]ecords [of] illegal narcotics operation ....
... [were] concealed or kept in, on, or about the following described place or person to wit: [a particular residence on] N 28th Street, Omaha, Douglas County, Nebraska, ... AND/OR SHARP, ... a black male with the date of birth ... AND/OR HICKS, Candice a black female with the date of birth ....
The affidavit stated that the premises expected to contain contraband also included all vehicles that were under the control of Sharp and Candice Hicks, and noted that Sharp drove a 1997 Mitsubishi Montero with a specific license plate number and that Hicks drove a 2005 Pontiac Grand Prix with a specific license plate number. The affidavit further stated a reliable confidential informant had told Fancher within the previous 72 hours that crack cocaine was being sold from the North 28th Street residence noted in the affidavit and that a “black male and a black female” lived there. The informant told Fancher that within the previous 7 days, he had seen the black male carry a firearm inside the residence.
Fancher further averred that he had conducted a background check and found that Sharp was a convicted felon with prior arrests for possession with intent to deliver crack cocaine, possession of crack cocaine, felon in possession of a firearm, and delivery of a controlled substance; Sharp also had multiple prior arrests for possession of marijuana. Fancher also averred that Hicks was a convicted felon and had prior arrests for possession with intent to deliver crack cocaine and possession of a controlled substance. The affidavit requested authorization for a nighttime search and a no-knock warrant.
were the items described in Fancher's affidavit, including crack cocaine, firearms, and records of illegal narcotics operations. The warrant stated that the officers were therefore ordered “to search theafore [sic] described location and/or person, for the purpose of seizing the before described property.” The warrant further authorized a nighttime, no-knock search of the premises.
On March 2, 2010, Fancher and another officer conducted surveillance on the North 28th Street residence prior to executing the search warrant. The officers noticed that the Mitsubishi vehicle identified in the affidavit in support of the search warrant was not parked at the premises. Because the officers knew there was only one street leading to the premises, they decided to wait at a nearby intersection to see whether the vehicle would appear. When the Mitsubishi came through the intersection a short time later, the officers immediately stopped it. The stop occurred approximately 1 1/2 blocks from the North 28th Street residence.
Fancher testified that he observed no traffic violation prior to the stop. He stopped the vehicle because he recognized Hicks, who was identified in the search warrant, as its driver, and he believed that the warrant authorized a search of the vehicle. The parties in this appeal agree that the affidavit requested authority to search the vehicle, but that the warrant did not authorize its search.
Once the vehicle was stopped, the officers asked both Hicks and her male passenger, Sharp, for identification. After Sharp's identification was confirmed, Fancher had Sharp step out of the vehicle, handcuffed him, and then patted him down for weapons. During the pat-down, Fancher felt an object which he believed to be a plastic bag containing a soft substance in one of Sharp's pockets. He removed the object, which proved to be a bag containing marijuana. After completing the patdown, Fancher left Sharp with the other officer, who conducted a more extensive search and found crack cocaine in the inside pocket of Sharp's jacket.
Sharp was then placed in a police cruiser and transported to the police station. Fancher orally advised Sharp of his Miranda rights after he was placed in the cruiser. At the police station, a strip search was conducted and another small bag containing crack cocaine was found concealed in Sharp's underwear.
After Sharp dressed, Fancher questioned him. Sharp admitted during this questioning that he used crack cocaine and that he smoked it with marijuana. He also stated that he gave crack cocaine to family and friends and that he did not give it to them “out of the goodness of his heart.” Fancher then left Sharp at the police station and executed the search of the premises, which yielded a scale, loose marijuana, and plastic baggies.
Sharp was subsequently charged with possession with intent to deliver a controlled substance. He filed a motion to suppress the evidence found on his person and the statements he made at the police station, alleging that the stop of the Mitsubishi and the search of his person were illegal. After conducting an evidentiary hearing, the district court denied the motion to suppress. In its order, the court found that the officers had a good faith belief the search warrant authorized a search of the vehicle and that their conduct in stopping the vehicle was not sufficiently deliberate or culpable so as to trigger the exclusionary rule. The court also found that the officers had probable cause to stop the vehicle based upon the information in Fancher's affidavit and application for a search warrant. The court further found that Sharp was identified in the warrant as subject to search and that nothing in the warrant limited the search of his person to a search at the described premises. Finding both the stop of the vehicle and the search of Sharp's person to be lawful, the district court denied the motion to suppress.
Sharp waived his right to a jury trial and was tried to the court based on stipulated facts while preserving the issue raised by his motion to suppress. He was found guilty of possession with intent to deliver a controlled substance and sentenced to 3 to 5 years' incarceration. Sharp subsequently filed this timely appeal, which we moved to our docket on our own motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.1
Sharp assigns that the district court erred in failing to suppress all evidence used against him resulting from the unlawful stop and search.
In reviewing a trial court's ruling on a motion to suppress based on the Fourth Amendment, we will uphold its findings of fact unless they are clearly erroneous.2 But we review de novo the trial court's ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search.3
Sharp's broad assignment of error is narrowed by his argument, which challenges the legality of the vehicle stop and the subsequent search of his person. With regard to the vehicle stop, Sharp argues that the good faith exception articulated in United States v. Leon 4 is inapplicable because there was no error in the search warrant, only in the officers' belief that it authorized a search of the vehicle. Sharp argues that the search warrant did not authorize a search of his person conducted away from the premises identified in the warrant and that because of this, all evidence and statements obtained by police during the vehicle stop and subsequent search of his person must be suppressed under the Fourth Amendment exclusionary rule.
The district court determined that the officers stopped the vehicle in the erroneous but good faith belief that it was specifically mentioned in the search warrant.5 But the court also found that “based upon the totality of circumstance [sic] there is ample evidence in the affidavit and application to support a finding of probable cause to stop the vehicle that [Sharp] was riding in.” Although...
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