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State v. Shelby

Court of Appeals of Nebraska

September 15, 2015

State of Nebraska, appellee,
Mark V. Shelby, appellant.


Appeal from the District Court for Lancaster County: Steven D. Burns, Judge.

Joseph Nigro, Lancaster County Public Defender, and Paul E. Cooney for appellant.

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

Moore, Chief Judge, and Pirtle and Bishop, Judges.


Bishop, Judge.

Mark V. Shelby was convicted of two counts of possession of a controlled substance in the district court for Lancaster County. On appeal, he challenges the district court's orders overruling (1) his motion to suppress evidence obtained during a warrantless search of his apartment and (2) his motion to suppress statements he made to police at the time of the search. He also challenges his sentences as excessive. For the following reasons, we affirm.


On February 14, 2014, the State filed an information charging Shelby with two counts of possession of a controlled substance, each a Class IV felony. Count I alleged possession of methamphetamine, and count II alleged possession of cocaine base.

Prior to trial, Shelby filed a motion to suppress evidence obtained during a warrantless search of his apartment. He alleged that the search did not fall under any recognized exception to the warrant requirement. He also filed a motion to suppress statements he made to police at the time of the search. He alleged that the statements resulted from custodial interrogation 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).

On July 21, 2014, the district court held a suppression hearing. Officer Anthony Gratz, the State's only witness, testified as follows. He was assigned as an investigator to the City of Lincoln/Lancaster County narcotics unit task force. On November 14, 2013, he and another officer were involved in an investigation at an apartment on South 11th Street in Lincoln, Nebraska. The officers received an anonymous tip from Crime Stoppers that methamphetamine was being sold out of a specific apartment at that address, and they learned that Shelby lived at the apartment. At around 7 p.m. on November 14, they knocked on the apartment's door, and a woman who identified herself as Barbara Schafer opened it. Schafer indicated that she resided at the apartment. The officers identified themselves and asked if Shelby was home. Schafer called for Shelby, whom the officers could see in the apartment's back bedroom, sitting in his wheelchair.

Gratz testified that Shelby entered the living room and that both Shelby and Schafer invited the officers into the apartment. They told Shelby and Schafer the details of their investigation and explained that their purpose was to ensure that no drug activity was occurring in the apartment. They asked for consent to search the apartment, and Shelby and Schafer said "[t]hat they would take [the officers] through the apartment and allow [them] to look." The officers indicated that they wanted to confirm that there were no drugs in the entire apartment. As all four individuals went through the apartment, the officers again asked for permission to look in each area that they searched, and permission was granted. At no point did Shelby or Schafer limit the search or revoke their consent.

The search began in the apartment's only bedroom. In a trash can in the bedroom, the officers found a small baggie containing what appeared to be marijuana. In a cardboard box containing women's socks and perfume, they found a 1- by 1-inch baggie with a residual amount of suspected methamphetamine. Schafer claimed ownership of the box but said that her brother (who was not Shelby) might have placed the baggie there. When searching a desk in the bedroom, the officers located a pill container with partially smoked marijuana cigars and a film canister containing razor blades with what appeared to be methamphetamine residue on them. While in the bedroom, Shelby admitted to trying methamphetamine and smoking marijuana recently.

Gratz testified that after completing their search of the bedroom, the officers searched the living room, kitchen, and bathroom. They also searched Shelby's wheelchair after asking him to exit it and sit on the living room couch. They uncovered no additional contraband during these searches.

According to Gratz, Schafer was then placed under arrest for possession of a controlled substance. Prior to being escorted out of the apartment, however, Schafer became increasingly nervous and began frantically asking for a beverage from the kitchen. Gratz agreed, and as he walked toward the kitchen, he turned and saw Schafer removing two pouches from her person and trying to conceal them behind her back. Gratz seized the pouches, which contained a crack pipe and a methamphetamine pipe. The pipes and the 1- by 1-inch baggie found in the bedroom field tested positive for the presence of methamphetamine and cocaine base.

Gratz testified that after Schafer was placed in a police cruiser, the officers began writing Shelby a citation for possession of marijuana. While writing the citation, they asked Shelby if the pipes recovered from Schafer were his or if he had used them. Initially, Shelby denied using the pipes. The officers then asked if his DNA or fingerprints would be found on the pipes, and Shelby said yes. He admitted to using the methamphetamine pipe earlier that day and using the crack pipe approximately two weeks earlier. According to Gratz, the officers did not make any promises to Shelby or use force or coercion to obtain the statements. Gratz further testified that at the time Shelby made the statements, they had not placed Shelby under arrest or given him Miranda warnings, and he was free to leave. Shelby did not appear to be under the influence of drugs.

On cross-examination, Gratz testified that he never sought or obtained a search warrant. He admitted that written consent-to-search forms were available to him at the police department, but he did not use them. According to Gratz, Shelby never asked the officers about the need for a search warrant, and neither officer told Shelby that a search warrant was not needed.

Gratz did not recall Shelby's or Schafer's exact words, but he did remember that they used their hands to wave the officers into the apartment. He also did not recall Shelby's or Schafer's exact words consenting to the search of the apartment. According to Gratz, after consenting to the search, Shelby and Schafer guided the officers to the back bedroom and granted them permission before they opened anything or looked in any drawer. Gratz testified that Shelby was cooperative and did not appear nervous.

After the State rested, Shelby testified as follows. Schafer did not reside at the apartment but stayed there occasionally. When the officers knocked on the door, Shelby had just gotten out of the bathtub and was getting dressed. When he entered the living room, the officers were already inside the threshold. He never invited the officers into the apartment. He asked the officers if they had a search warrant, and they said that they did not need one because they had probable cause. He never granted the officers permission to search the apartment.

According to Shelby, the officers told him to remove his shoes and his leg brace and to exit his wheelchair so they could search it. He felt that these were instructions, not requests, and that he had to comply. He did not feel free to leave, because ...

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