State v. Sharp

C ounty C ourt’s relianCe on
“neb. rev. stat. § 77-2018.5”
The county court cited a statute which does not exist, “Neb.
Rev. Stat. § 77-2018.5,” in support of its factual determination
that the value of Craven’s residence for inheritance taxation
purposes was the auction sale price of the home. The county
interprets the court’s reference to “§ 77-2018.5” as one to
§ 77-2018.05 and argues that such reliance was misplaced.
However, the record does not establish which statute the court
meant when it cited § 77-2018.5, so we do not speculate as to
whether the court intended to cite § 77-2018.05. Regardless,
the county court’s erroneous citation to a nonexistent statute
was harmless error. The county court has jurisdiction, pursuant
to chapter 77, article 20, to make estate valuation determina-
tions for purposes of inheritance taxation. And as previously
discussed, the court did not err when it determined that the
value of this particular property, for inheritance taxation pur-
poses, was $113,000.
CoNCluSioN
For the foregoing reasons, we affirm the judgment of the
county court.
affirmed.
Wright, J., not participating.
state of nebraska , appellee , v.
roCky J. sharp, appellant.
795 N.W.2d 638
Filed February 11, 2011. 	No. S-10-622.
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. in reviewing a trial court’s ruling on a motion to sup-
press 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.
Appeal from the District Court for Douglas County: patriCia
a. lamberty, Judge. Affirmed.
130 	281 NeBRASkA RepoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

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., C onnolly, gerrard, stephan, mCC ormaCk ,
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 sub-
stance. The primary issue on appeal is whether a search war-
rant for Sharp’s residence and person authorized a search of
his person which was conducted approximately 11⁄2 blocks from
the residence. We conclude that it did.
FACTS AND pRoCeDuRAl BACkGRouND
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 fol-
lowing 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 con-
traband 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
STATe v. SHARp 	131
Cite as 281 Neb. 130

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, pos-
session 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 pos-
session 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.
A search warrant based on Fancher’s affidavit was issued on
the same day. The warrant stated that based on the affidavit,
there was
probable cause to believe that concealed on the premises
located at [the] N 28th Street [address], omaha, Douglas
County, Nebraska, . . . AND/oR SHARp, . . . a black
male with the date of birth . . . AND/oR HiCkS, . . . a
black female with the date of birth . . . who resides or is
in control of the afore described premises,
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 war-
rant 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 execut-
ing the search warrant. The officers noticed that the Mitsubishi
vehicle identified in the affidavit in support of the search war-
rant 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
132 	281 NeBRASkA RepoRTS

would appear. When the Mitsubishi came through the intersec-
tion a short time later, the officers immediately stopped it. The
stop occurred approximately 11⁄2 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 pat-
down, 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 admit-
ted 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 plas-
tic 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
STATe v. SHARp 	133
Cite as 281 Neb. 130

and the search of his person were illegal. After conducting an
evidentiary hearing, the district court denied the motion to sup-
press. in its order, the court found that the officers had a good
faith belief the search warrant authorized a search of the vehi-
cle and that their conduct in stopping the vehicle was not suf-
ficiently 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 law-
ful, 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 pur-
suant to our statutory authority to regulate the caseloads of the
appellate courts of this state.1
ASSiGNMeNT oF eRRoR
Sharp assigns that the district court erred in failing to sup-
press all evidence used against him resulting from the unlawful
stop and search.
STANDARD oF ReVieW
[1] in reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, we will uphold its find-
ings 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
1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
2 State v. Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010); State v. Pischel,
277 Neb. 412, 762 N.W.2d 595 (2009).
3 Id.
134 	281 NeBRASkA RepoRTS

ANAlYSiS
Sharp’s broad assignment of error is narrowed by his argu-
ment, 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. Leon4 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 exclusion-
ary rule.
offiCers Were Justified in stopping vehiCle
The district court determined that the officers stopped the
vehicle in the erroneous but good faith belief that it was spe-
cifically 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 Sharp argues that the district court errone-
ously applied the Leon good faith exception to this case, he
does not challenge the court’s alternative finding that the offi-
cers had probable cause to stop the vehicle.
We agree with the district court that based upon what
Fancher knew about the activities of Sharp and Hicks, as set
forth in the affidavit and application, he had probable cause
to stop the vehicle.6 Because we conclude that the officers had
justification for stopping the vehicle independent of the search
warrant, we need not reach the question of whether the Leon
good faith exception applies.
4 United States v. Leon, 468 u.S. 897, 104 S. Ct. 3405, 82 l. ed. 2d 677
(1984).
5 See id.
6 See State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
STATe v. SHARp 	135
Cite as 281 Neb. 130

searCh Warrant authorized searCh of
sharp’s person aWay from premises
in deciding whether the search of Sharp’s person was valid,
we first consider whether a search warrant may lawfully be
issued with respect to a person as distinguished from a place.
Sharp directs us to Zurcher v. Stanford Daily,7 in which the
u.S. Supreme Court held that a search warrant may properly be
issued for premises notwithstanding the fact that the owner or
possessor is not reasonably suspected of criminal conduct. in
reaching its conclusion, the Court noted: “Search warrants are
not directed at persons; they authorize the search of ‘place[s]’
and the seizure of ‘things,’ and as a constitutional matter they
need not even name the person from whom the things will be
seized.”8 But Zurcher did not hold that search warrants cannot
be directed at persons. To the contrary, state and federal courts,
including the u.S. Supreme Court, have long recognized that a
search warrant may be issued for a person as long as the req-
uisite showing of probable cause is made.9 one commentator
has noted that “[t]here is no inherent defect in a single warrant
which authorizes search of a place and also a person . . . .”10
We agree.
Because much of Sharp’s argument is premised on Michigan
v. Summers,11 the next step in our analysis is to determine
the applicability of that case to the issue presented here. in
Summers, police had a warrant authorizing the search of a
7 Zurcher v. Stanford Daily, 436 u.S. 547, 98 S. Ct. 1970, 56 l. ed. 2d 525
(1978).
8 Id., 436 u.S. at 555, quoting United States v. Kahn, 415 u.S. 143, 94 S.
Ct. 977, 39 l. ed. 2d 225 (1974).
9 See, Ybarra v. Illinois, 444 u.S. 85, 100 S. Ct. 338, 62 l. ed. 2d 238
(1979); United States v. Ward, 682 F.2d 876 (10th Cir. 1982); State v.
Brown, 245 kan. 604, 783 p.2d 1278 (1989); State v. Ballou, 148 Vt. 427,
535 A.2d 1280 (1987); People v. Sunday, 109 ill. App. 3d 960, 441 N.e.2d
374, 65 ill. Dec. 461 (1982); People v Sherman, 68 Mich. App. 647, 244
N.W.2d 3 (1976).
10 2 Wayne R. laFave, Search and Seizure, A Treatise on the Fourth
Amendment § 4.9(a) at 703 (4th ed. 2004).
11 Michigan v. Summers, 452 u.S. 692, 101 S. Ct. 2587, 69 l. ed. 2d 340
(1981).
136 	281 NeBRASkA RepoRTS

house for narcotics. As police were about to execute the war-
rant, the defendant came out of the house and descended the
front steps. The police detained him while they searched the
premises and ultimately arrested him after discovering con-
traband. The defendant challenged his detention. in address-
ing its validity, the Court examined both the character of the
intrusion on the defendant’s Fourth Amendment rights and its
justification. The Court reasoned that because the police had a
warrant to search the premises, the rights’ intrusion was mini-
mal. it further reasoned that the minimal intrusion was justified
because law enforcement had a legitimate interest in prevent-
ing the defendant’s flight, in minimizing the risk of harm to
officers, and in ensuring an orderly completion of the search.
ultimately, the Court held that a warrant to search premises for
contraband founded on probable cause implicitly carries with
it the limited authority to detain the occupants of the premises
while a proper search is being conducted.
Sharp argues that Summers establishes a limited exception to
a general rule that “authority to search stops at the threshold,”12
and that unless the criteria of Summers are met, an individual
may not be searched away from the premises identified in a
search warrant. Sharp appears to contend that his general rule
applies regardless of whether the person to be searched is spe-
cifically named in the search warrant.
in support of this argument, Sharp relies in part on Parks v.
Com.,13 in which the Supreme Court of kentucky noted that
“courts have applied the Summers exception even when the
search warrant authorizes search of both the premises and the
owner/occupant.” But the Florida and Maryland appellate opin-
ions cited by the Parks court for this proposition make no men-
tion of any individual being specifically named in the search
warrants at issue.14 And other than Parks, the cases which
Sharp cites in support of his argument that an off-premises
detention and search of a person is prohibited unless it meets
12 Brief for appellant at 13.
13 Parks v. Com., 192 S.W.3d 318, 333 (ky. 2006).
14 See, Fromm v. State, 96 Md. App. 249, 624 A.2d 1296 (1993); State v.
Thomas, 603 So. 2d 1382 (Fla. App. 1992).
STATe v. SHARp 	137
Cite as 281 Neb. 130

the Summers criteria did not involve warrants which specifi-
cally authorized the search of a named person.15 We conclude
that Summers provides the criteria for permissible detention,
during the execution of a search warrant, of persons who are
either unnamed in the warrant or identified only generically as
“residents” or “occupants” of the premises. Summers would
therefore apply to this case only if the search warrant does not
specifically authorize a search of Sharp’s person.
We therefore turn our attention to the language of the search
warrant itself and the affidavit and application upon which it
was issued. The affidavit asserted the officer’s belief that
crack cocaine was being sold from the North 28th Street resi-
dence and that Sharp and Hicks, who resided there, had prior
convictions and multiple arrests for drug-related offenses.
The application alleged that crack cocaine and other items
utilized in or associated with the distribution and sale of illicit
drugs were kept or concealed on the “place or person” of the
North 28th Street residence “AND/oR SHARp . . . AND/oR
HiCkS.” Similarly, the search warrant found probable cause
to believe that contraband was concealed on the premises
“AND/oR SHARp . . . AND/oR HiCkS” and specifically
authorized law enforcement officers to search the “location
and/or person.”
Based upon this language, we conclude that the search war-
rant was not narrowly focused on Sharp’s presence at the resi-
dence, but was more broadly applicable to the illicit drug activ-
ity which he was alleged to be conducting from that residence.
The warrant identified three sources of concealed contraband:
the residence, the person of Sharp, and the person of Hicks.
The use of the phrase “and/or” connecting the place and per-
sons to be searched authorized a search of the residence, both
named persons, or any one of the three. And we agree with the
district court that there is no language in the search warrant
which required that the search of the named persons be con-
ducted at the identified premises. The language of the warrant
15 See, U.S. v. Sherrill, 27 F.3d 344 (8th Cir. 1994); U.S. v. Hogan, 25 F.3d
690 (8th Cir. 1994); United States v. Boyd, 696 F.2d 63 (8th Cir. 1982);
State v. Ruoho, 685 N.W.2d 451 (Minn. App. 2004).
138 	281 NeBRASkA RepoRTS

distinguishes this case from People v. Green16 and People v
Kerrigan,17 on which Sharp relies. it is closer to the language
of search warrants which were held to authorize an off-premises
search of named persons in People v Carter,18 People v. Velez,19
and People v. Gonzalez.20 We conclude that the search warrant
was personal to Sharp and authorized a search of his person on
or off the premises identified in the warrant.
CoNCluSioN
For the reasons discussed, the district court did not err in
denying Sharp’s motion to suppress. The evidence which was
the subject of that motion was properly received and estab-
lished Sharp’s guilt of the offense charged. We affirm his con-
viction and sentence.
affirmed.
Wright, J., not participating.
16 People v. Green, 33 N.Y.2d 496, 310 N.e.2d 533, 354 N.Y.S.2d 933
(1974).
17 People v Kerrigan, 49 A.D.2d 857, 374 N.Y.S.2d 22 (1975).
18 People v Carter, 56 A.D.2d 948, 392 N.Y.S.2d 712 (1977).
19 People v. Velez, 204 ill. App. 3d 318, 562 N.e.2d 247, 149 ill. Dec. 783
(1990).
20 People v. Gonzalez, 316 ill. App. 3d 354, 736 N.e.2d 157, 249 ill. Dec.
315 (2000).
STATe v. SHARp 	139
Cite as 281 Neb. 130