STATE OF NEBRASKA, APPELLEE, V. MAURICE L. BRIGGS, APPELLANT
No. S-19-300
Nebraska Supreme Court
January 8, 2021
308 Neb. 84
Nebraska Supreme Court Advance Sheets, 308 Nebraska Reports
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 historical 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 independently of the trial court‘s determination. - 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.
- Warrantless Searches. Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions.
- Warrantless Searches. The warrantless search exceptions Nebraska has recognized include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in plain view, and (5) searches incident to a valid arrest.
- Constitutional Law: Search and Seizure: Arrests. Postarrest inventory searches are constitutionally permissible, and the propriety of such searches is judged by the Fourth Amendment standard of reasonableness.
- 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 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.
Search and Seizure. Inventory searches conducted according to established policy are reasonable. - Search and Seizure. 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.
- 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.
- Constitutional Law: Search and Seizure: Police Officers and Sheriffs. Only reasonable police regulations relating to inventory procedures 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.
- Constitutional Law: Search and Seizure: Proof. It is the State‘s burden 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.
- 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.
- 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.
- Constitutional Law: Search and Seizure. The failure to strictly follow established policy does not render an inventory search unconstitutional per se.
- 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.
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 suppress 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 people 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
A man and a woman exited the Jeep, and both reported having a verbal argument in the shopping center parking lot, but they denied the argument was physical. Both occupants provided 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 consistently 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 photograph of Briggs in the police database matched the male driver of the Jeep. The database also showed Briggs had gang connections, his Nebraska license was suspended, and he had outstanding 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 camera, 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
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 evidence, 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 inventory 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
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 conducted 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
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.
Q. 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 protection, 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 misplaced.” 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.
(b) District Court Ruling
The district court overruled the motion to suppress. It found that OPD policy allowed officers to impound the Jeep for safekeeping 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 authorized 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 inventory 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 missing would be meaningless as the officers considered all the property basically junk.
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 possession of a controlled substance. Briggs was sentenced to consecutive 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 incriminating evidence.
Addressing the first theory, the Court of Appeals noted officers had not prepared any inventory report after searching 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 suggested 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]
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 prepared. 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 inventory 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.
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 suppress 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 trigger 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 exigent 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 inventory search exception to justify the warrantless search of the Jeep, and we limit our analysis accordingly.
[5,6] Both the U.S. Supreme Court and this court have consistently held that postarrest inventory searches are constitutionally permissible14 and that the propriety of such searches is judged by the Fourth Amendment standard of reasonableness.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 conducted according to established policy are reasonable.”17 We have consistently explained that 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. 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 inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime[.]‘”18
[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
[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, standardized procedures.28 But in Nunez, we generally agreed with the Eighth Circuit Court of Appeals that the failure to strictly follow 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 determined by all the facts.30 An inventory search conducted pursuant to standardized procedures is recognized as reasonable because it serves important governmental caretaking functions unrelated to criminal investigation31 and ensures the search
[14] But Nunez held that the “failure to strictly follow established policy does not render an inventory search unconstitutional 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 noncompliance, 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 incriminating evidence.”34
On further review, Briggs argues the Court of Appeals misapplied 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 pursuant to a standardized inventory search procedure and thus fell within the inventory search exception. The State did not
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 authorized inventory searches “to catalog property prior to the vehicle 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 establish what those procedures were. Hansen‘s testimony was the only evidence regarding the content of OPD‘s standardized procedures, and we agree with the Court of Appeals that his testimony was, at best, equivocal on what those procedures 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 inventory report would show noncompliance. But the failure to prepare an inventory would not necessarily show noncompliance if OPD‘s procedures required that only “high value” property be cataloged and officers found no such property. We
We pause here to address Briggs’ argument that the Court of Appeals impermissibly shifted the burden of proof by suggesting 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 requirements 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 prepare any inventory report at all. But the State made no effort to tie the officers’ decision to anything in OPD‘s standardized procedures.
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 findings 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 “nothing of value” in the Jeep; it found “the completion of an
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 circumstances. 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 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.41 Even under this deferential standard, we find the district court‘s factual 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
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 property [was] basically junk.” Again, the record contains no evidence 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 officer discretion.43
Thus, no matter how we construe the district court‘s findings as to why an inventory report was not necessary, the findings were clearly erroneous on this record. The Court
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 conduct 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
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 governing 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.