State v. Nunez

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/25/2018 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. NUNEZ
Cite as 299 Neb. 340
State of Nebraska, appellee, v.
M ark P. Nunez, appellant.
___ N.W.2d ___
Filed March 16, 2018. No. S-17-398.
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. Search and Seizure: Police Officers and Sheriffs. Inventory searches
are considered reasonable because they serve at least three needs unre-
lated to criminal investigation: (1) to protect the owner’s property while
it remains in police custody, (2) to protect police against claims that
they lost or stole the property, and (3) to protect police from poten-
tial danger.
3. Search and Seizure. The propriety of an inventory search is judged by
a standard of reasonableness, and such a search must be conducted in
accordance with standard operating procedures.
4. ____. An inventory search must not be a ruse for a general rummaging
in order to discover incriminating evidence.
5. Search and Seizure: Police Officers and Sheriffs: Evidence: Proof.
Under the inevitable discovery doctrine, challenged evidence is admis-
sible if the State shows by a preponderance of the evidence that the
police would have obtained the disputed evidence by proper police
investigation entirely independent of the illegal investigative conduct.
6. Constitutional Law: Search and Seizure. A failure to strictly follow
established policy does not render an inventory search unconstitutional
per se.
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STATE v. NUNEZ
Cite as 299 Neb. 340
7. ____: ____. Whether a search is permissible under the Fourth
Amendment depends on whether it is reasonable, and the test of reason-
ableness cannot be fixed by per se rules; each case must be decided on
its own facts.
Appeal from the District Court for Washington County: John
E. Samson, Judge. Affirmed.
Sean M. Conway and Kate O. Rahel, of Dornan, Troia,
Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Joe Meyer for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
Cassel, J.
I. INTRODUCTION
Following a traffic stop leading to a driver’s arrest, officers
searched the vehicle before impounding it and discovered
methamphetamine. Contrary to policy, a completed inventory
sheet did not list the methamphetamine, and the officers appar-
ently failed to separately list it. The driver unsuccessfully
sought to suppress the evidence. Because we conclude that the
search was reasonable and that the procedural defects did not
raise an inference the search was conducted to discover evi-
dence, we affirm the judgment below.
II. BACKGROUND
1. A rrest and Overview of Search
In August 2016, Mark P. Nunez was stopped by Sgt. Jacob
Hoffman of the Washington County sheriff’s office for speed-
ing. Nunez’ 7-year-old son was the only passenger. After
Hoffman approached Nunez’ vehicle, Nunez informed Hoffman
that he thought his driver’s license had been suspended for fail-
ure to pay child support. Hoffman then returned to his patrol
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STATE v. NUNEZ
Cite as 299 Neb. 340
car and confirmed with dispatch that Nunez’ driver’s license
was indeed suspended and found that it was suspended in both
Nebraska and Iowa. Hoffman also discovered that there was
an active warrant for Nunez’ arrest. Hoffman then returned to
the vehicle to arrest Nunez. Hoffman handcuffed Nunez and
placed him in the patrol car. The child was transported by
another officer to one of Nunez’ friends or family. The vehicle
was impounded.
Before the vehicle was impounded, Hoffman and another
officer searched the vehicle for the keys. While looking for the
keys, Hoffman discovered a pipe. After the keys were located,
the officers continued to search the vehicle and discovered a
black container holding a substance that tested positive for
methamphetamine. Nunez was charged with one count of pos-
session of a controlled substance, along with one count of driv-
ing under a suspended license.
2. Motion to Suppress
Prior to the bench trial, Nunez moved to suppress all evi-
dence obtained as a result of the search of his vehicle, alleging
that the warrantless search violated his constitutional rights.
The State took the position that the search fell within the
inventory exception to the warrant requirement.
At a hearing on the motion to suppress, the State called
Hoffman to testify and entered into evidence a document out-
lining the Washington County sheriff’s office’s policy and pro-
cedures for impounded vehicles (“written policy”), as well as a
video from Hoffman’s body camera.
(a) Policy on Impounded Vehicles
The written policy states, in relevant part:
Any vehicle seized and impounded shall be invento-
ried. The sheriff’s office impound/inventory report form
shall be completed with all identified items listed on the
impound/inventory sheet. All unlocked containers are to
be searched and inventoried. If the vehicle has a trunk
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299 Nebraska R eports
STATE v. NUNEZ
Cite as 299 Neb. 340
release or if we are in custody of the keys, the trunk shall
be inventoried, including any unlocked containers.
....
. . . If any evidence or contraband is seized as the result
of a vehicle impound[,] the item shall be listed on the
impound/inventory report form with the word “evidence”
listed next to the item. The property/evidence report
form shall be completed on the item seized, tracking the
item from the impound/inventory sheet to the property/­
evidence sheet. The property/evidence tag number and
where item was secured shall be listed on the property/
evidence report form.
Hoffman also testified about the Washington County sher-
iff’s office’s policy regarding impounded vehicles. He testified
that according to the office’s policy, officers are to “go through
the vehicle and mark up anything that’s of value and . . . check
all unlocked containers in the vehicle, and if there’s keys . . .
check the trunk.”
(b) Search for Keys
Footage from Hoffman’s body camera depicted the stop,
Nunez’ arrest, and events thereafter. The video shows that
after Nunez was arrested, Hoffman informed Nunez that his
vehicle would be towed. Nunez then asked Hoffman if he
had the keys or if the other officer had the keys. Hoffman
responded that Nunez had the keys. Since Nunez was hand-
cuffed, Hoffman told Nunez that he would get them for him.
Hoffman then patted Nunez’ pockets, apparently not locating
the keys. He then instructed an officer standing nearby to
check the vehicle, stating that he did not think Nunez had the
keys. The video shows the other officer searching the back
seat of the vehicle.
After Nunez was secured in the back of the patrol car,
Hoffman went to help the other officer locate the keys.
After they were unable to locate the keys in the passenger
compartment of the vehicle, they questioned Nunez about
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STATE v. NUNEZ
Cite as 299 Neb. 340
whether he had “chuck[ed] [th]em.” Nunez denied getting rid
of the keys, and Hoffman checked Nunez’ pockets again. The
officers then returned to the vehicle to search for the keys
again. At that time, Hoffman located a pipe in the vehicle’s
center console underneath the steering column next to the
gas pedal. A few minutes later, the other officer located
Nunez’ keys.
After finding the keys, the officers continued to search
the vehicle. They then located the black container. Hoffman
conducted a field test on the substance in the black container,
and it tested positive for methamphetamine. The officers
continued to search the passenger compartment and back of
the vehicle.
Hoffman testified that when a person is placed under arrest
and the arrestee’s vehicle is being towed, he looks for the keys
to the vehicle. When asked why he did so, he stated, “If the
tow company has the keys they can put it in drive, which will
allow the vehicle not to possibly have damage to it when they
try to load it up or do whatever they need to do.” He added,
“[W]e try to keep at least the ignition key in there so it’s more
movable for the tow company.” He testified that he looked for
Nunez’ keys for the same reason.
(c) Inventory Sheet
On cross-examination, Hoffman admitted that the inventory
sheet was not completed during the time that the officers were
searching for the keys. He testified that an inventory sheet was
completed by another officer in accordance with the written
policy. According to Hoffman, the inventory sheet was com-
pleted sometime before the vehicle was towed, but he could
not remember if it was done before he left to transport Nunez
to jail.
The inventory sheet was not offered into evidence at the
hearing on the motion to suppress, but was received into evi-
dence for the bench trial. The pipe and black container were
not listed on the inventory sheet.
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299 Nebraska R eports
STATE v. NUNEZ
Cite as 299 Neb. 340
(d) Evidence Report
Although the written policy contemplates that a “property/
evidence report form shall be completed” on any evidence
seized as the result of a vehicle impound, no such form
was offered into evidence at the suppression hearing or the
bench trial, and there was no evidence that one was ever
completed.
3. Conviction and A ppeal
After the hearing, Nunez’ motion to suppress was over-
ruled, and following a bench trial during which he preserved
his objection to the evidence, Nunez was convicted of pos-
session of a controlled substance. The district court acquitted
Nunez of the charge of driving under a suspended license.
Nunez was sentenced to a 2-year term of probation.
Nunez filed a timely appeal.
III. ASSIGNMENT OF ERROR
Nunez assigns that the district court erred in overruling his
motion to suppress.
IV. 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.
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.1
V. ANALYSIS
The Fourth Amendment to the U.S. Constitution prohibits
unreasonable searches and seizures.2 It is well recognized that
1
State v. Hidalgo, 296 Neb. 912, 896 N.W.2d 148 (2017).
2
See id.
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STATE v. NUNEZ
Cite as 299 Neb. 340
inventory searches conducted according to established policy
are reasonable.3
[2] Inventory searches are considered reasonable because
they serve at least three needs unrelated to criminal investiga-
tion: (1) to protect the owner’s property while it remains in
police custody, (2) to protect police against claims that they
lost or stole the property, and (3) to protect police from poten-
tial danger.4 These purposes impact our analysis of the proce-
dures used in the case before us.
[3,4] The propriety of an inventory search is judged by a
standard of reasonableness, and such a search must be con-
ducted in accordance with standard operating procedures.5 The
reason for requiring standardized criteria or an established
routine to regulate inventory searches is as follows:
“[A]n inventory search must not be a ruse for a general
rummaging in order to discover incriminating evidence.
The policy or practice governing inventory searches
should be designed to produce an inventory. The indi-
vidual police officer must not be allowed so much lati-
tude that inventory searches are turned into ‘a pur-
poseful and general means of discovering evidence of
crime . . . .’”6
Here, Nunez argues that the search in this case was not a
reasonable inventory search because the search was not con-
ducted in accordance with the policy of the Washington County
sheriff’s office. Nunez suggests that there are three ways in
which the search did not comply with established policy:
3
See, 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).
4
Id.
5
State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996).
6
State v. Filkin, 242 Neb. 276, 282, 494 N.W.2d 544, 549 (1993) (quoting
Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990)).
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STATE v. NUNEZ
Cite as 299 Neb. 340
(1) The officers were searching for keys, which Nunez claims
is not a part of the established policy; (2) the officer who com-
pleted the inventory sheet did not list the pipe and the black
container on it in accordance with established policy; and (3)
the officers did not fill out an evidence report in accordance
with established policy.
1. Search for K eys
First, Nunez argues that the written policy shows that
searching for keys prior to impounding a vehicle is not an
established part of the Washington County sheriff’s office’s
policy. The State responds that searching for keys need not
be part of the written policy in order to be established policy
and that Hoffman’s testimony established it as such. The State
also argues that even if the officers had not searched for the
keys, the pipe and black container would still be admitted as
evidence because they would have been inevitably discovered
pursuant to a valid inventory search. Assuming without decid-
ing that we do not accept Hoffman’s testimony as sufficient to
supplement the written policy, we nonetheless agree with the
State’s alternative argument.
[5] Under the inevitable discovery doctrine, challenged evi-
dence is admissible if the State shows by a preponderance of
the evidence that the police would have obtained the disputed
evidence by proper police investigation entirely independent
of the illegal investigative conduct.7 Here, even if the police
had not searched for the keys, as pointed out by the State, they
would have discovered the pipe and black container pursuant
to the inventory search.
2. Inventory Sheet and
Evidence R eport
Nunez also argues that certain deficiencies with the inven-
tory sheet and evidence report show that the established policy
7
See State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
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STATE v. NUNEZ
Cite as 299 Neb. 340
was not followed, thereby rendering the inventory search
unconstitutional. We disagree.
[6,7] A failure to strictly follow established policy does
not render an inventory search unconstitutional per se.8
“‘Compliance with procedures merely tends to ensure the
intrusion is limited to carrying out the government’s care-
taking function.’”9 Whether a search is permissible under the
Fourth Amendment depends on whether it is reasonable, and
“‘“[t]he test of reasonableness cannot be fixed by per se rules;
each case must be decided on its own facts.”’”10
In support of his argument that the officers’ failure to fol-
low established policy invalidates the inventory search, Nunez
cites State v. Newman.11 In Newman, Lincoln police noti-
fied Nevada authorities that they were looking for a criminal
suspect who was traveling by train to Nevada. The Nevada
authorities arrested the defendant at a train station. At the time,
he was carrying three suitcases. The authorities transported
the defendant and his luggage to a detention center. They did
not immediately search the suitcases, but inventoried them as
bulk property.
It was not until after the Nevada authorities were told that
certain items were needed as evidence that two police officers
went to the detention center’s property room and searched the
suitcases, locating the needed evidence. Although it was the
policy of the detention center to conduct an inventory search
of the suitcases before placing them in the property room,
we found that policy was not followed in Newman. Thus, we
8
See U.S. v. Rowland, 341 F.3d 774, 780 (8th Cir. 2003) (stating “[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”).
9
Id. (quoting U.S. v. Mayfield, 161 F.3d 1143 (8th Cir. 1998)).
10
South Dakota v. Opperman, supra note 3, 428 U.S. at 373 (quoting
Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d
564 (1971)).
11
State v. Newman, supra note 5.
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STATE v. NUNEZ
Cite as 299 Neb. 340
concluded that the search of the suitcases did not fall within the
boundaries of the inventory exception.
Although the failure to follow established policy in Newman
led to a suppression of evidence, Newman is clearly distin-
guishable from the case at hand. As noted above, the purpose
of requiring searches to be conducted according to established
policy is to ensure that inventory searches are “‘not . . . a
ruse for a general rummaging in order to discover incriminat-
ing evidence.’”12 In Newman, the timing of the search and the
facts surrounding it raised an inference that the search was
not designed to produce inventory, but to discover incriminat-
ing evidence. Here, the alleged technical errors on the inven-
tory sheet and the lack of an evidence report do not raise the
same inference.
Certainly, the fact that the evidence seized was omitted from
the inventory sheet does not suggest that the search was con-
ducted solely to obtain evidence; if anything, it suggests the
opposite.13 And the fact that there was no evidence report is not
suggestive, either.
After reviewing the facts and circumstances presented, we
conclude that the failure to list the seized evidence on the
inventory sheet and the failure to complete an evidence report
for the seized evidence do not raise an inference that the search
was conducted solely to discover evidence. Because the offi-
cers otherwise complied with the established policy, the inven-
tory search was reasonable and Nunez’ assignment of error is
without merit.
VI. CONCLUSION
For the reasons set forth above, we affirm Nunez’ conviction.
A ffirmed.
Wright and K elch, JJ., not participating.
12
State v. Filkin, supra note 6, 242 Neb. at 282, 494 N.W.2d at 549.
13
Compare U.S. v. Rowland, supra note 8 (suppressing evidence where
officer listed only evidence seized and not other items in vehicle searched).