State v. Briggs , 308 Neb. 84 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2021 12:13 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. BRIGGS
Cite as 308 Neb. 84State of Nebraska, appellee, v.
Maurice L. Briggs, appellant.
___ N.W.2d ___
Filed January 8, 2021. No. S-19-300.
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: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
3. Warrantless Searches. Searches without a valid warrant are per se
unreasonable, subject only to a few specifically established and well-
delineated exceptions.
4. ____. The warrantless search exceptions Nebraska has recognized
include: (1) searches undertaken with consent, (2) searches under exi-
gent circumstances, (3) inventory searches, (4) searches of evidence in
plain view, and (5) searches incident to a valid arrest.
5. Constitutional Law: Search and Seizure: Arrests. Postarrest
inventory searches are constitutionally permissible, and the propri-
ety of such searches is judged by the Fourth Amendment standard
of reasonableness.
6. Search and Seizure: Police Officers and Sheriffs: Arrests. Postarrest
inventory searches are considered reasonable because they serve at least
three governmental caretaking functions unrelated to criminal investi-
gation: (1) protecting the owner’s property while it remains in police
custody, (2) protecting the police against claims that they lost or stole
the property, and (3) protecting police from potential danger.
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Cite as 308 Neb. 847. Search and Seizure. Inventory searches conducted according to estab-
lished policy are reasonable.
8. ____. The reason for requiring inventory searches to be regulated by
standardized criteria is that an inventory search must not be a ruse for a
general rummaging in order to discover incriminating evidence.
9. Criminal Law: Search and Seizure: Police Officers and Sheriffs. A
standardized policy or procedure governing inventory searches should
be designed to produce an inventory. The individual police officer must
not be allowed so much latitude that inventory searches are turned into
a purposeful and general means of discovering evidence of crime.
10. Constitutional Law: Search and Seizure: Police Officers and
Sheriffs. Only reasonable police regulations relating to inventory pro-
cedures administered in good faith will satisfy the Fourth Amendment.
A reasonable inventory search policy has two key features: it must be
designed to produce an inventory and it must limit officer discretion
regarding when and what to search.
11. Constitutional Law: Search and Seizure: Proof. It is the State’s bur-
den to show a search falls within the inventory search exception, and a
failure of proof on the State’s behalf requires a finding that the search
suffered from constitutional infirmities. The State can generally meet
its burden by proving the inventory search was conducted pursuant to
reasonable standardized procedures governing inventory searches.
12. Constitutional Law: Search and Seizure: Police Officers and
Sheriffs: Proof. A written inventory search policy is recognized as
the best means by which to prove the existence and requirements of a
standardized procedure, but there is no constitutional requirement that
inventory policies be established in writing. Officer testimony can also
establish the existence of a standard procedure and show that the search
was conducted in accordance with that procedure.
13. Constitutional Law: Search and Seizure: Proof. The State generally
meets its burden of showing an inventory search was reasonable under
the Fourth Amendment when it proves the search was governed by, and
conducted in accordance with, standardized procedures.
14. Constitutional Law: Search and Seizure. The failure to strictly follow
established policy does not render an inventory search unconstitutional
per se.
15. Appeal and Error. In determining whether a trial court’s findings of
historical fact are clearly erroneous, an appellate court does not reweigh
the evidence or resolve conflicts in the evidence, but, rather, recognizes
the trial court as the finder of fact and takes into consideration that it
observed the witnesses.
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STATE v. BRIGGS
Cite as 308 Neb. 84Petition for further review from the Court of Appeals,
Pirtle, Riedmann, and Welch, Judges, on appeal thereto from
the District Court for Douglas County, Peter C. Bataillon,
Judge. Judgment of Court of Appeals reversed and remanded
with directions.
Thomas C. Riley, Douglas County Public Defender, and
Bethany R. Stensrud for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
The district court denied Maurice L. Briggs’ motion to sup-
press evidence found during a warrantless search of his vehicle,
reasoning the search fell within the inventory search exception
to the Fourth Amendment. Briggs was subsequently convicted
of two counts of possession of a controlled substance. He
appealed, challenging the denial of his motion to suppress, and
the Nebraska Court of Appeals affirmed. On further review,
we conclude the State failed to meet its burden of proving the
search fell within the inventory search exception. We therefore
reverse the decision of the Court of Appeals and remand the
cause with directions.
I. BACKGROUND
1. Traffic Stop
In December 2017, officers from the Omaha Police
Department (OPD) responded to a report of an assault in
progress in a shopping center parking lot. When Officer Joe
Eischeid arrived on the scene, witnesses reported that the peo-
ple involved in the disturbance were leaving in a black Jeep.
Eischeid followed the Jeep to a nearby auto parts store, where
it pulled in and parked. Eischeid activated the lights on his
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STATE v. BRIGGS
Cite as 308 Neb. 84cruiser and pulled in behind the Jeep. The encounter that fol-
lowed was recorded on the cruiser’s camera and on Eischeid’s
body camera. Eventually, two more police officers arrived to
provide backup.
A man and a woman exited the Jeep, and both reported hav-
ing a verbal argument in the shopping center parking lot, but
they denied the argument was physical. Both occupants pro-
vided officers with their names and birth dates, and police ran
a records check. That check showed the female passenger had
a history of drug-related convictions. Police asked the woman
several times for permission to search her purse, and she con-
sistently refused. She also told police that nothing in the Jeep
belonged to her. The female passenger was eventually allowed
to leave the scene.
Police were unable to locate any record for the name and
birth date given by the male driver. A check of the Jeep’s
license plate showed it was registered to Briggs, and the photo-
graph of Briggs in the police database matched the male driver
of the Jeep. The database also showed Briggs had gang con-
nections, his Nebraska license was suspended, and he had out-
standing arrest warrants. Briggs was arrested on the warrants,
as well as driving on a suspended license and supplying false
information to a police officer. Police asked Briggs for consent
to search the Jeep, but he refused. Police also called for a “K-9
unit,” but it never arrived.
2. Vehicle Search
After Briggs was arrested and placed in the police cruiser,
two OPD officers searched the Jeep. On Eischeid’s body cam-
era, he can be heard asking another officer if it was to be a
“search incident to arrest,” and the other officer replied, “No,
it’s an inventory search.”
Footage and audio from the police cameras shows the
Jeep was full of property, including multiple phone chargers,
electronics, a credit or debit card, a wallet, at least two sets
of license plates, a pair of tennis shoes, a tablet computer, a
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STATE v. BRIGGS
Cite as 308 Neb. 84jacket and other clothing, and several suitcases. During the
search, officers found a black bag which contained Briggs’
wallet, identification card, Social Security card, and several
smaller bags containing suspected drugs. After the suspected
drugs were found, one officer can be heard saying, “Well,
there you go, there’s that felony you were waiting on, there
it is.”
It is undisputed that officers did not create an inventory
report of the property inside the Jeep. They did, however,
prepare what they described alternatively as an “evidence
report” or “property report,” listing the items seized as evi-
dence, which included the black bag, the suspected drugs and
drug paraphernalia, and a license plate. The suspected drugs
later tested positive for cocaine and methamphetamine, and
Briggs was charged with two counts of felony possession of
a controlled substance. He moved to suppress the evidence
found during the warrantless search of his Jeep, arguing it
was obtained in violation of his rights under both the U.S. and
Nebraska Constitutions. The State generally resisted the motion
by asserting that OPD officers had conducted a proper inven-
tory search. 1
3. Motion to Suppress
(a) Evidence
At the motion to suppress hearing, the State offered footage
from Eischeid’s cruiser camera and body camera. That footage
is generally consistent with the facts outlined above. The State
also adduced testimony from two of the three officers involved
in the search.
(i) Officer Eischeid
Eischeid generally described the facts as detailed above.
He also testified that once police discovered there were
1
See, e.g., State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019)
(recognizing inventory search is exception to Fourth Amendment’s warrant
requirement).
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STATE v. BRIGGS
Cite as 308 Neb. 84active warrants for Briggs’ arrest, they handcuffed him and
placed him in the cruiser. Eischeid testified that after Briggs
was arrested, the plan was to impound the Jeep for safekeep-
ing. The State did not ask Eischeid about OPD’s policy on
impounding vehicles or conducting inventory searches.
On cross-examination, Eischeid admitted that after Briggs
was arrested, Eischeid said to the other officer, “I get to search
that car now, I can’t wait . . . .” Ultimately, however, Eischeid
testified that he searched only the “armrest glove box” and
front passenger areas of the Jeep, looking for keys. After that,
he primarily stayed with Briggs while two other officers con-
ducted a search of the Jeep. Eischeid admitted that when he
looked in the glovebox, he saw a wallet with credit cards, debit
cards, a gift card, and cash, but he did not prepare an inventory
report of any items.
(ii) Officer Hansen
Officer Tyler Hansen arrived on the scene shortly after
Eischeid, and Hansen was one of the officers who searched
Briggs’ Jeep. The State asked Hansen the following questions
about OPD’s policy on postarrest inventory searches:
Q. Okay. Does OPD have a policy on impounding
vehicles and a search prior to impounding vehicles?
A. Uh, yes, when we take control of a vehicle to tow it
to our impound lot we do an inventory search of it.
Q. Okay. And what’s the purpose of an inventory
search?
A. To make sure there’s no high value items in the
vehicle or any dangerous substances or anything like that.
Q. Are there any policies about how you go about
doing a search or documentation of that search?
A. Um, we just conduct a search and then if we find
any high value items or anything we’ll book it into
property.
Hansen testified the inventory search of Briggs’ Jeep was
“conducted in accordance with OPD standard operating
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STATE v. BRIGGS
Cite as 308 Neb. 84procedures,” but the State did not ask Hansen what those
­procedures were, nor was a copy of the inventory search policy
offered into evidence.
More specific details regarding OPD’s inventory search
procedures were elicited on cross-examination, when defense
counsel asked Hansen the following questions:
Q. Inventory searches are supposed to be conducted
according to [OPD] policy, correct?
A. Yes.
Q. And there are only a few reasons why you can do an
inventory search, right?
A. Yes.
Q. One of them being to catalog property prior to the
vehicle being taken into police possession, correct?
A. Correct.
Q. To protect [OPD] from allegations of mishandling
of property, correct?
A. Correct.
Q. To accurately track property in possession of [OPD]?
A. Correct.
Q. And those are the only reasons why, correct?
A. Yes.
....
Q. Your manual specifically says these are not
searches, correct?
A. Correct.
Q. You’re not supposed to be inventorying a vehicle to
look for evidence of a crime, correct?
A. Correct.
Q. When choosing to do an inventory, you must do it
thoroughly, right?
A. Yes.
Q. You are instructed that you must cover all areas of
normal access in which property would reasonably be
expected to be placed, correct?
A. Yes.
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Cite as 308 Neb. 84Q. Including the front seats?
A. Correct.
Q. The back seats?
A. Yes.
Q. The glove compartment?
A. Yes.
Q. And the trunk?
A. Yes.
Q. There was a lot of property in that car, wasn’t there?
A. Yes.
Q. The car was packed to the brim, wasn’t it?
A. Yep.
Q. Stuff was even falling out of the back hatch when
you opened it, right?
A. Correct.
....
Q. Okay. When you inventory a car, you’re supposed to
document all the property you find, right?
A. Any, yes.
Q. Again, the purpose is to protect [OPD] from saying
anything was lost, stolen, or misplaced for your protec-
tion, correct?
A. Correct.
Q. So there must have been a long inventory log?
A. Uh, I don’t believe so.
Q. An inventory log is different than a property report,
isn’t it?
A. I believe so.
Hansen agreed that the purpose of a property or evidence
report “is to itemize . . . the evidence that was collected for
purposes of trial,” while the “purpose[] of an inventory log
[is] to protect [OPD] from being sued later if items are mis-
placed.” Hansen admitted he did not prepare an inventory log
following the search of the Jeep, and he did not know whether
any other officer did so. No inventory log was offered by
the State.
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STATE v. BRIGGS
Cite as 308 Neb. 84On redirect examination, the State asked Hansen whether
“there [was] anything of true value” found during the search
of the Jeep and he replied, “What we found [was] lots of bags
of clothing and wigs.” When asked whether it was “feasible to
document all property in this case,” Hansen responded that due
to the amount of property in the Jeep, officers “just decided to
document only the main — the high value important things.”
On recross-examination, Hansen admitted that OPD’s policy
manual on inventory searches states that officers are “supposed
to inventory all property” and the manual “doesn’t mention
anything [about] whether it’s valuable or not.”
(b) District Court Ruling
The district court overruled the motion to suppress. It found
that OPD policy allowed officers to impound the Jeep for safe-
keeping because Briggs had been arrested and the Jeep was
parked on private property. The court also found that once the
decision was made to impound the Jeep, OPD policy autho-
rized an inventory search to protect Briggs’ property and to
protect police from false accusations that the property was not
safeguarded. But the court made no express factual findings as
to what OPD’s standardized procedures required, nor did the
court make an express finding that officers complied with those
procedures in conducting the search of Briggs’ Jeep.
The court did find that officers had not prepared an inven-
tory log after searching the Jeep, and it acknowledged that
“one would expect an inventory to be done.” But it found “the
completion of an inventory [was] not necessary,” reasoning:
For the officers to go through a car that was “filled to the
gills” and make an inventory of each of the various items
in the car would be a waste of the time of the officers. As
such, the officers, basically, decided [to] impound the car
as is and any accusation by [Briggs] as to property miss-
ing would be meaningless as the officers considered all
the property basically junk.
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STATE v. BRIGGS
Cite as 308 Neb. 84Based on these factual findings, the court overruled the motion
to suppress, concluding “the inventory search by the police
officers [was] proper, reasonable, and not unconstitutional.”
4. Stipulated Trial
and Sentencing
Following a stipulated bench trial at which Briggs preserved
the motion to suppress, he was convicted of two counts of pos-
session of a controlled substance. Briggs was sentenced to con-
secutive 30-month terms of probation. He filed a timely appeal,
challenging only the denial of his motion to suppress.
5. Court of Appeals
Before the Court of Appeals, Briggs argued the district
court erred in denying his motion to suppress. He advanced
two theories for why the State could not rely on the inventory
search exception: (1) officers failed to comply with OPD’s
standardized inventory search procedures because they did not
prepare an inventory report and (2) officers used the pretext of
an inventory search to conduct a general search for incriminat-
ing evidence.
Addressing the first theory, the Court of Appeals noted
officers had not prepared any inventory report after search-
ing the Jeep, but it considered the evidence “not that clear” 2
as to what OPD’s procedures actually required concerning
cataloging property found in an inventory search. Noting
that Hansen’s testimony was the only evidence on this issue,
the Court of Appeals was unsure whether OPD’s procedures
required police to catalog all property found in the vehicle,
or just all “high value” property. The Court of Appeals sug-
gested the uncertainty in Hansen’s testimony could have been
cleared up by offering the written policy, noting that “Briggs’
counsel referred to OPD’s ‘manual’ in questioning [Hansen]
2
State v. Briggs, 28 Neb. App. 65, 81, 940 N.W.2d 582, 594 (2020).
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Cite as 308 Neb. 84about OPD’s policies but, for whatever reason, did not offer
OPD’s written policies into evidence or clarify if written poli-
cies existed.” 3 But, similar to the district court, the Court of
Appeals did not squarely address what OPD’s inventory search
procedures required or whether officers had complied with
those procedures.
Instead, the Court of Appeals reasoned it was not necessary
to decide whether OPD’s policy required police to inventory
all property, or just all high value property, because “[e]ither
way,” 4 the evidence showed no inventory report had been pre-
pared. Noting that Briggs “[d]eem[ed] this a failure to comply
with OPD’s stated policy,” 5 the Court of Appeals proceeded
to consider whether, under our holding in State v. Nunez, 6 the
search could still be considered reasonable under the Fourth
Amendment despite the failure to prepare an inventory.
Applying Nunez, the Court of Appeals framed the ultimate
question in Briggs’ appeal as whether police used the inven-
tory search as “simply pretext for a general rummaging by the
police in order to discover incriminating evidence.” 7 To that
question, the Court of Appeals understood the district court to
have made a historical finding of fact that the failure to prepare
an inventory log was not pretextual. It reviewed that finding
for clear error, and it found none. It therefore affirmed the
overruling of Briggs’ motion to suppress, but cautioned that the
failure to prepare an inventory report pursuant to established
procedures “could lead a future court to conclude that a search
does not qualify as an inventory search.” 8
We granted Briggs’ timely petition for further review.
3
Id. at 78, 940 N.W.2d at 592.
4
Id. at 82, 940 N.W.2d at 594.
5
Id.
6
State v. Nunez, 299 Neb. 340, 907 N.W.2d 913 (2018).
7
Briggs, supra note 2, 28 Neb. App. at 83, 940 N.W.2d at 595.
8
Id. at 94, 940 N.W.2d at 601.
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STATE v. BRIGGS
Cite as 308 Neb. 84II. ASSIGNMENT OF ERROR
On further review, Briggs broadly assigns that the Court
of Appeals erred in affirming the denial of his motion
to suppress.
III. 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,
an appellate court applies a two-part standard of review. 9
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 10
IV. ANALYSIS
[2-4] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. 11 Searches without
a valid warrant are per se unreasonable, subject only to a few
specifically established and well-delineated exceptions. 12 The
warrantless search exceptions Nebraska has recognized include:
(1) searches undertaken with consent, (2) searches under exi-
gent circumstances, (3) inventory searches, (4) searches of
evidence in plain view, and (5) searches incident to a valid
arrest. 13 In this case, the State relies exclusively on the inven-
tory search exception to justify the warrantless search of the
Jeep, and we limit our analysis accordingly.
9
State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020).
10
Id.11
Garcia, supra note 1.
12
Id.13
State v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020).
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Cite as 308 Neb. 841. Inventory Search Exception
[5,6] Both the U.S. Supreme Court and this court have
consistently held that postarrest inventory searches are consti-
tutionally permissible 14 and that the propriety of such searches
is judged by the Fourth Amendment standard of reasonable-
ness. 15 Inventory searches are considered reasonable because
they serve at least three governmental caretaking functions
unrelated to criminal investigation: (1) protecting the owner’s
property while it remains in police custody, (2) protecting the
police against claims that they lost or stole the property, and
(3) protecting police from potential danger. 16
[7-9] It is widely recognized that “inventory searches con-
ducted according to established policy are reasonable.” 17 We
have consistently explained that the reason for requiring inven-
tory searches to be regulated by standardized criteria is that
“an inventory search must not be a ruse for a general rum-
maging in order to discover incriminating evidence. The
policy or practice governing inventory searches should be
designed to produce an inventory. The ­individual police
officer must not be allowed so much latitude that inven-
tory searches are turned into ‘a purposeful and general
means of discovering evidence of crime[.]’” 18
14
See, e.g., Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1(1990); Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d
739 (1987); Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed.
2d 65 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092,
49 L. Ed. 2d 1000 (1976); Garcia, supra note 1; Nunez, supra note 6;
State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996); State v. Filkin,
242 Neb. 276, 494 N.W.2d 544 (1993).
15
Id.16
See, Garcia, supra note 1; Nunez, supra note 6. Accord, Bertine, supra
note 14; Lafayette, supra note 14; Opperman, supra note 14; Newman,
supra note 14; Filkin, supra note 14.
17
Nunez, supra note 6, 299 Neb. at 346, 907 N.W.2d at 917. Accord, Bertine,
supra note 14; Lafayette, supra note 14; Opperman, supra note 14.
18
Newman, supra note 14, 250 Neb. at 238, 548 N.W.2d at 749, quoting
Wells, supra note 14. See, also, Nunez, supra note 6; Filkin, supra note 14.
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Cite as 308 Neb. 84[10] The particular procedures for conducting inventory
searches are left largely to local law enforcement agencies, 19
but the U.S. Supreme Court has made clear that only “reason-
able police regulations relating to inventory procedures admin-
istered in good faith satisfy the Fourth Amendment.” 20 A rea-
sonable inventory search policy has two key features: it must
be designed to produce an inventory 21 and it must limit officer
discretion regarding when and what to search. 22
[11,12] It is the State’s burden to show a search falls within
the inventory search exception, 23 and a failure of proof on
the State’s behalf “requires a finding that the search ­suffered
from constitutional infirmities.” 24 The State can ­generally
19
See Lafayette, supra note 14, 462 U.S. at 648 (noting Court was
“hardly in a position to second-guess police departments” as to practical
administrative methods that would best deter claims of theft). Accord,
Wayne R. LaFave, Controlling Discretion by Administrative Regulations:
The Use, Misuse, and Nonuse of Police Rules and Policies in Fourth
Amendment Adjudication, 89 Mich. L. Rev. 442, 454-55 (1990) (“it is
appropriate to expect the police agency in the first instance to make a
judgment about exactly what kind of routine is needed to serve those
governmental interests in that particular locality”).
20
Bertine, supra note 14, 479 U.S. at 374. See Lafayette, supra note 14.
21
Wells, supra note 14; Bertine, supra note 14; Opperman, supra note 14;
Nunez, supra note 6. See, also, Newman, supra note 14; Filkin, supra
note 14.
22
Wells, supra note 14, 495 U.S. at 8 (Brennan and Marshall, JJ., concurring)
(recognizing inventory searches are reasonable under Fourth Amendment
only if “done in accordance with standard procedures that limit the
discretion of the police”); Opperman, supra note 14, 428 U.S. at 384(Powell, J., concurring) (explaining that in proper inventory search, “no
significant discretion is placed in the hands of the individual officer:
he [or she] usually has no choice as to the subject of the search or its
scope”). See, also, Nunez, supra note 6; Newman, supra note 14; Filkin,
supra note 14. Accord LaFave, supra note 19 at 461 (explaining that to be
reasonable, regulations on inventory searches must “impose realistic limits
on police discretion”).
23
Newman, supra note 14; Filkin, supra note 14.
24
Filkin, supra note 14, 242 Neb. at 284, 494 N.W.2d at 550.
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Cite as 308 Neb. 84meet its burden by proving the search was conducted pursu-
ant to reasonable standardized procedures governing inven-
tory searches. 25 And while a written policy is recognized as
the best means by which to prove the existence and require-
ments of a standardized procedure, there is no constitutional
requirement that inventory procedures must be established
in writing. 26 We have recognized that officer testimony can
also “establish the existence of a standard procedure and
[show] that the search was conducted in accordance with that
procedure.” 27
[13] The State generally meets its burden of showing an
inventory search was reasonable when it proves the search
was governed by, and conducted in accordance with, standard-
ized procedures. 28 But in Nunez, we generally agreed with the
Eighth Circuit Court of Appeals that the failure to strictly fol-
low standardized procedures does not automatically render an
inventory search unreasonable per se. 29
Nunez explained that reasonableness under the Fourth
Amendment cannot be fixed by per se rules; it must be deter-
mined by all the facts. 30 An inventory search conducted pur-
suant to standardized procedures is recognized as reasonable
because it serves important governmental caretaking functions
unrelated to criminal investigation 31 and ensures the search
25
See Filkin, supra note 14.
26
Id. See, also, 3 Wayne R. LaFave, Search and Seizure, A Treatise on the
Fourth Amendment § 7.4(a) (6th ed. 2020) (noting officer testimony of
standard inventory search procedure can be sufficient, but better practice
is to produce written policy).
27
Filkin, supra note 14, 242 Neb. at 285, 494 N.W.2d at 550.
28
See Filkin, supra note 14 (summarizing U.S. Supreme Court precedent
as requiring that inventory searches, to be reasonable, must be conducted
pursuant to standardized policies or established procedure).
29
Nunez, supra note 6.
30
Id.31
See id.- 99 -
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Cite as 308 Neb. 84is not “‘“turned into ‘a purposeful and general means of dis-
covering evidence of a crime.’”’” 32
[14] But Nunez held that the “failure to strictly follow
established policy does not render an inventory search uncon-
stitutional per se.” 33 Instead, when the evidence shows that
officers failed to strictly follow standardized procedures, Nunez
instructs that a court should consider whether, despite the non-
compliance, the inventory search was still reasonable under
the Fourth Amendment. To make that determination, a court
considers all of the facts surrounding the search, including the
nature of the noncompliance, in order to determine whether
the evidence suggests the search was designed to produce an
inventory and satisfy the government’s caretaking function, or
whether it instead “raise[s] an inference that the search was not
designed to produce an inventory, but to discover incriminat-
ing evidence.” 34
On further review, Briggs argues the Court of Appeals mis-
applied the State’s burden of proof and impermissibly shifted
that burden by suggesting defense counsel should have done
more to clarify the content of OPD’s inventory search policy.
Briggs also argues the Court of Appeals misapplied this court’s
holding in Nunez. 35 We find merit in both arguments.
2. State Failed to Meet
Its Burden of Proof
The State offered surprisingly little evidence to support its
contention that the search of Briggs’ Jeep was conducted pur-
suant to a standardized inventory search procedure and thus
fell within the inventory search exception. The State did not
32
Id. at 346, 907 N.W.2d at 918.
33
Id. at 348, 907 N.W.2d at 918, citing U.S. v. Rowland, 341 F.3d 774,
780 (8th Cir. 2003) (“[e]ven when law enforcement fails to conduct a
search according to standardized procedures, this does not mandate the
suppression of the evidence discovered as a result of the search”).
34
Id. at 349, 907 N.W.2d at 919.
35
Nunez, supra note 6.
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questioning Hansen, it adduced little more than conclusory
statements that OPD had a standard policy, that the purpose of
the policy was to “make sure there’s no high value items in the
vehicle,” and that the search of Briggs’ Jeep was “conducted in
accordance with” that policy.
On cross-examination, defense counsel questioned Hansen
more directly about the specific details of OPD’s procedures,
at times appearing to quote directly from OPD’s manual. On
cross-examination, Hansen testified that OPD’s manual autho-
rized inventory searches “to catalog property prior to the vehi-
cle being taken into police possession” and “[t]o protect [OPD]
from allegations of mishandling of property.” He testified that
when conducting an inventory search, officers are instructed
to be “thorough[]” and to “cover all areas of normal access in
which property would reasonably be expected to be placed.”
He further testified that OPD’s policy manual says officers
are “supposed to inventory all property” and “doesn’t mention
anything [about] whether it’s valuable or not.”
Considered in its entirety, Hansen’s testimony may have
been sufficient to show that OPD has adopted standardized
procedures to govern inventory searches, but it failed to estab-
lish what those procedures were. Hansen’s testimony was
the only evidence regarding the content of OPD’s standard-
ized procedures, and we agree with the Court of Appeals that
his testimony was, at best, equivocal on what those proce-
dures required.
Specifically, it was unclear from the evidence whether
OPD’s procedures require officers to catalog all property
found in a vehicle, or just “high value” property. Clarity on
this issue was important because if OPD’s procedures require
that all property be cataloged, the failure to prepare an inven-
tory report would show noncompliance. But the failure to
prepare an inventory would not necessarily show noncom-
pliance if OPD’s procedures required that only “high value”
property be cataloged and officers found no such property. We
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all property to be listed on the inventory report could satisfy
constitutional requirements, 36 because that question is not
before us. 37 Actually, the State’s failure to prove what OPD’s
standardized procedures required makes it difficult to reach
any conclusion about whether those procedures met constitu-
tional requirements.
We pause here to address Briggs’ argument that the Court
of Appeals impermissibly shifted the burden of proof by sug-
gesting the defense should have offered OPD’s manual into
evidence to clear up the confusion as to what it required. We
do not understand the Court of Appeals to have shifted the
burden. But to the extent its opinion can be read to suggest
that Briggs should have offered evidence to clarify the require-
ments of OPD’s policy, we expressly disapprove of such a
reading. It is the State’s burden to prove an inventory search
was conducted pursuant to standardized procedures, 38 and the
State alone bears responsibility for meeting, or not meeting,
that burden.
Here, even after the defense inquired into specific provisions
of OPD’s inventory search policy on cross-examination, the
State appears to have treated the contents of OPD’s policy as a
well-kept secret. It made no effort to clarify the requirements
of OPD’s procedures or to show that officers complied with
those procedures. Instead, the State’s questioning of Hansen
focused on why, after searching the Jeep and seizing several
items of incriminating evidence, Hansen decided not to pre-
pare any inventory report at all. But the State made no effort
to tie the officers’ decision to anything in OPD’s standard-
ized procedures.
36
See cases cited supra notes 21 and 22.
37
But see Filkin, supra note 14, 242 Neb. at 283, 494 N.W.2d at 550(suggesting that “‘no standard for the scope of the inventory other than
the listing of every item of property would satisfy the relevant governmen­
tal interests’”).
38
Filkin, supra note 14.
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determine whether the search in this case conformed to OPD’s
standardized procedures governing inventory searches, the
State failed to meet its burden to show the search fell within
the inventory search exception. 39 On this record, the district
court should have found the search suffered from constitutional
infirmities 40 and granted Briggs’ motion to suppress.
But rather than granting the motion to suppress, the district
court made several factual findings about the reason there was
no inventory report and, based on those findings, concluded
the search was “proper, reasonable, and not unconstitutional.”
Because the Court of Appeals relied on those factual find-
ings in its analysis, we address them too and find they were
clearly erroneous.
2. Trial Court’s Factual Findings
Were Clearly Erroneous
The district court made several related factual findings as
to why, after searching Briggs’ Jeep, officers failed to prepare
an inventory report. It found that officers discovered “noth-
ing of value” in the Jeep; it found “the completion of an
39
See, State v. Neely, 236 Neb. 527, 462 N.W.2d 105 (1990) (single-
judge opinion) (holding where State failed to adduce evidence that any
standardized procedures were followed, inventory search exception did
not apply even assuming search was conducted for inventory purposes),
abrogated on other grounds, State v. Rocha, 295 Neb. 716, 890 N.W.2d
178 (2017); State v. Ray, 9 Neb. App. 183, 609 N.W.2d 390 (2000)
(holding evidence which shows only that standard policy exists, without
establishing what procedures were, is inadequate to meet State’s burden of
proving that inventory search exception applies). Accord, United States v.
Duguay, 93 F.3d 346 (7th Cir. 1996) (holding conflicting officer testimony
as to requirements of highway patrol’s impoundment policy resulted in
failure to prove inventory search was governed by standardized criteria).
See, also, Wells, supra note 14, 495 U.S. at 5 (explaining that absent
evidence showing standardized procedure authorized opening of closed
containers, search in which officers did so was “not sufficiently regulated
to satisfy the Fourth Amendment”).
40
See Filkin, supra note 14.
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Cite as 308 Neb. 84inventory [was] not necessary” because the Jeep was “‘filled
to the gills’” and all of the property was “basically junk”; and
it found it would have been a “waste of the [officers’] time” to
prepare an inventory.
We struggle with how to construe these factual findings in
our Fourth Amendment analysis, and it appears the Court of
Appeals did too. The findings could arguably be construed to
suggest the trial court believed that officers generally complied
with OPD’s procedures and that such procedures required only
that “high value” property be listed on the inventory report.
The findings could also arguably be construed to suggest, as
the Court of Appeals concluded, that the trial court implicitly
found the officers had no pretextual motive for conducting the
inventory search despite the failure to prepare an inventory
report. Or, given the absence of sufficient evidence showing
what OPD’s procedures actually required, it is possible these
findings reflect nothing more than the trial court’s assumptions
about what a reasonable policy would require under the cir-
cumstances. But regardless of how the district court’s findings
are construed, they were clearly erroneous and thus did not
support the court’s legal conclusion that the inventory search
was “proper, reasonable, and not unconstitutional.”
[15] In determining whether a trial court’s findings of his-
torical fact are clearly erroneous, an appellate court does not
reweigh the evidence or resolve conflicts in the evidence,
but, rather, recognizes the trial court as the finder of fact and
takes into consideration that it observed the witnesses. 41 Even
under this deferential standard, we find the district court’s fac-
tual findings, as they regard the need to prepare an inventory
report, to be clearly erroneous.
First, the finding that there was “nothing of value” in
the Jeep finds no support in the record. No officer testified
41
See, Newman, supra note 14; State v. DeGroat, 244 Neb. 764, 508 N.W.2d
861 (1993).
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Cite as 308 Neb. 84the items had no value; instead, when Hansen was asked
whether “there [was] anything of true value” found in the
Jeep, he replied, “What we found [was] lots of bags of cloth-
ing and wigs.” Even if this testimony can be fairly understood
to imply there was nothing of value in the Jeep, such a finding
cannot be reconciled with the video evidence in our record.
The police camera footage does not show all of the property
in the Jeep, but it does show a wallet, a jacket, tennis shoes,
a tablet computer, phone chargers, and numerous suitcases.
And Eischeid admitted that when he opened the center con-
sole, he saw credit cards, debit cards, a gift card, and cash.
Given this uncontroverted evidence, the district court’s fac-
tual finding that there were no items of value in the Jeep was
clearly erroneous.
We also find clear error in the district court’s findings that
“the completion of an inventory is not necessary” or that it
would be a “waste of . . . time” to prepare an inventory if,
after completing the search, officers decide “all . . . the prop-
erty [was] basically junk.” Again, the record contains no evi-
dence to support such a finding. There was no evidence that
OPD’s standardized procedures recognize any circumstance
under which officers have broad discretion to forgo preparing
any inventory report after conducting a search. And even if
such a policy had been proved, we are not persuaded it could
pass constitutional muster. To satisfy the Fourth Amendment,
“‘“[t]he policy or practice governing inventory searches should
be designed to produce an inventory”’” 42 and to limit offi-
cer discretion. 43
Thus, no matter how we construe the district court’s find-
ings as to why an inventory report was not necessary, the
findings were clearly erroneous on this record. The Court
42
Newman, supra note 14, 250 Neb. at 238, 548 N.W.2d at 749, quoting
Wells, supra note 14. See, also, Nunez, supra note 6; Filkin, supra note 14.
43
See cases cited supra notes 21 and 22.
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proceeded to independently review the trial court’s ultimate
determination that the search was “proper, reasonable, and not
unconstitutional.” 44 Had it done so, it would have reversed,
concluding that the State failed to meet its burden of proving
the search fell within the inventory search exception.
Instead, because it understood the trial court to have made
a factual finding that the officers did not have a pretextual
motive in performing the search, the Court of Appeals framed
the ultimate question in this appeal as whether, under Nunez,
the search was still reasonable. On further review, Briggs
argues generally that the Court of Appeals misapplied Nunez to
this case. As we explain next, we agree.
3. State v. Nunez Inapplicable
As stated earlier, Nunez held that the “failure to strictly
follow established policy does not render an inventory search
unconstitutional per se.” 45 Nunez applies when the evidence
shows officers failed to strictly follow established policy,
and the case provides a framework for analyzing whether,
despite errors in following the established policy, an ­inventory
search can still be considered reasonable under the Fourth
Amendment.
Here, the State failed to prove both the contents of OPD’s
inventory search policy and that officers conformed their con-
duct to that policy when searching Briggs’ Jeep. That failure
of proof conclusively answered the question whether the State
could rely on the inventory search exception. 46 There was no
need to consider Nunez.
Moreover, while it makes logical sense to assume that
the complete failure to prepare an inventory report would
44
See Saitta, supra note 9.
45
Nunez, supra note 6, 299 Neb. 348, 907 N.W.2d at 918.
46
See, Filkin, supra note 14; Neely, supra note 39; Ray, supra note 39.
Accord Wells, supra note 14.
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the State’s failure to prove what OPD’s standardized proce-
dures actually required made any meaningful analysis under
Nunez impossible. Simply put, the constitutional reasonable-
ness analysis required by Nunez cannot be performed where,
as here, the State has not shown what the standardized proce-
dures required and the extent of the officers’ noncompliance
remains unknown.
Given the State’s failure to meet its burden of proof, the
Court of Appeals did not have a record which permitted it to
perform the constitutional reasonableness analysis required by
Nunez. We thus agree with Briggs that Nunez was misapplied
in this case.
V. CONCLUSION
Because it was not possible, on the evidence adduced,
to determine whether the search in this case was conducted
in conformity with OPD’s standardized procedures govern-
ing inventory searches, the State failed to meet its burden to
show the search fell within the inventory search exception. We
reverse the decision of the Court of Appeals and remand the
cause with directions for that court to reverse the judgment of
the district court and to remand the cause to the district court
with directions to grant the motion to suppress.
Reversed and remanded with directions.
47
See Filkin, supra note 14, 242 Neb. at 283, 494 N.W.2d at 550 (suggesting
“‘no standard for the scope of the inventory other than the listing of every
item of property would satisfy the relevant governmental interests’”).