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In December 2017, a police officer responded to a call concerning an assault in progress involving pepper spray at an

Omaha, Nebraska, discount store. Upon arriving at the scene,

the initial responding officer (initial officer) learned the people

involved in the alleged assault left in a black Jeep, which vehicle he then encountered in a parking lot of an automobile parts

supply store located across the street from the discount store.

Video from the officer’s cruiser camera depicted that the initial

officer parked his cruiser behind the vehicle with the cruiser’s

emergency lights activated. The driver, Briggs, and the passenger, Jessica Hakl, were outside the vehicle when the initial

officer made contact with them. Both Briggs and Hakl denied

using pepper spray, and the initial officer did not observe any

evidence that an assault had occurred.

While other officers arrived at the scene, the initial officer

asked Briggs and Hakl for identification. Briggs stated he did

not have any identification with him and identified himself as

“Anthony Anderson” born “December 18, 1975,” while Hakl

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STATE v. BRIGGS

Cite as 28 Neb. App. 65

likewise stated she did not have any identification but gave

her name and birth date. The initial officer then returned to

his police cruiser to run a records check and found Hakl’s

information. Hakl’s record indicated she had a history of drugrelated convictions. As a result, the initial officer asked Hakl

if he could search her purse and told Hakl, “The reason I’m

asking, besides wanting to know where the mace is, you do

have a history of drugs on your record.” Hakl declined. During

the encounter, the initial officer continued to ask Hakl for permission to search her purse, which Hakl refused. The initial

officer then asked Briggs for permission to search the vehicle,

but Briggs refused. After that, the initial officer requested

that a “K-9 unit” be dispatched to the scene; however, none

were available.

Following this exchange, the initial officer ran a records

check on “Anthony Anderson,” but was unable to locate any

information on that name. He then asked Briggs a second

time for his information, and Briggs responded with the same

name but gave a different birth date. One of the responding

officers ran the license plate number of the vehicle, which

revealed the vehicle was registered to Briggs. The initial officer then viewed a driver’s license photograph of Briggs in a

law enforcement database and identified the driver as Briggs.

After performing a records check on Briggs, the initial officer

learned that there was a misdemeanor arrest warrant for Briggs

and that Briggs’ driver’s license was suspended. As a result, the

initial officer arrested Briggs for supplying false information to

a police officer, driving on a suspended license, and the misdemeanor arrest warrant. The initial officer told the additional

responding officers at the scene, “Now we can search it.” Once

Briggs was secured in a police cruiser, the initial officer asked,

“I think we can search that car now, can’t we? Search incident

to arrest?” One of the responding officers then clarified, “No,

it’s an inventory search.” The initial officer replied, “Inventory

search, yeah.”

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STATE v. BRIGGS

Cite as 28 Neb. App. 65

Two responding officers proceeded to search the vehicle,

which they described as “packed to the brim” with various

items. During the search, officers found a cell phone box in

the front seat passenger area. They also discovered a canvas

bag on the center console. This canvas bag contained Briggs’

wallet, identification card, and Social Security card, as well

as drug paraphernalia that included several baggies suspected

of containing methamphetamine and one baggie suspected of

containing cocaine. Briggs claimed ownership of the cell phone

box but not the canvas bag. Based on the testimony of the

officers and video from the initial officer’s body camera, other

items located in the vehicle appeared to include credit and

debit cards, a tablet, a set of house keys, a walkie-talkie-type

device, a Visa gift card, several cell phone chargers, and bags

of clothing and hair products. There was no separate written

document which captured the items identified by the officers

during their search.

Following the discovery of the contraband, the initial officer’s body camera video included the following exchange in

which the initial officer told the other responding officers:

“Well, yeah, there’s that felony,” to which another officer

responded, “Well, there you go, there’s that felony you were

waiting on, there it is.” As the search drew to a close, the

body camera video also recorded the initial officer’s comment

that they needed to tow the vehicle because they “inventoried it.” Finally, the body camera video captured an officer’s

inquiry governing what reason to list on the form in relation to impounding the vehicle. Specifically, an officer asked:

“Impound tow? Safekeeping?” The initial officer replied, “For

drug arrest.” The impounded vehicle report listed the reason

for towing as a drug arrest and noted in the details section of

the report: “Ve[h]icle towed for safekeeping.”

The contraband tested positive for cocaine and methamphetamine. Briggs was charged with two counts of felony possession of a controlled substance. See Neb. Rev. Stat. § 28-416

(Cum. Supp. 2018).

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STATE v. BRIGGS

Cite as 28 Neb. App. 65

Motion to Suppress

Prior to trial, Briggs filed a motion to suppress alleging

the vehicle search was unconstitutional. At the suppression

hearing, the State did not offer a written policy of the Omaha

Police Department (OPD) governing inventory searches or

impoundments, but did adduce evidence including testimony

from the initial officer and one of the responding officers and

video recordings of the incident from the initial officer’s body

camera and police cruiser camera.

The responding officer testified that an inventory search

must be conducted according to OPD policy and that the

reasons to conduct an inventory search include the following: (1) to catalog property prior to the vehicle’s being taken

into police possession, (2) to protect OPD from allegations of

mishandling property, and (3) to accurately track property in

possession of OPD. However, he acknowledged that OPD may

not inventory a vehicle to look for evidence of a crime. The

responding officer further testified that an inventory search

requires a thorough inventory of all property in the vehicle,

that all property is to be documented, and that the purpose of

an inventory log is to protect OPD from a lawsuit if the items

are misplaced, while a property report is used to itemize the

evidence collected for trial. The responding officer also testified that he did not fill out an inventory log and was unsure

if any of the other officers completed an inventory log. The

record does not contain an inventory log. When asked about

the search of the vehicle, the responding officer testified that

he subsequently created an item submission form to document

the evidence found. On the impounded vehicle supplemental

report, the officers listed only the contraband and Briggs’

wallet, identification card, and Social Security card, but they

did not include other items discovered in connection with

their investigation.

Concerning OPD’s vehicle towing policy, the responding

officer testified that towing is allowed only when necessary

due to a parking violation, due to an accident, for public safety,

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STATE v. BRIGGS

Cite as 28 Neb. App. 65

or for evidentiary purposes. He further testified that towing

a vehicle is unnecessary when the vehicle can be locked and

left on the street. The responding officer testified that Briggs’

vehicle was legally parked in a parking stall at the automobile supply store parking lot, but that he called for a tow

truck after determining Briggs was going to jail. The initial

officer testified that the purpose of towing the vehicle was

for “safekeeping.”

The district court overruled Briggs’ motion to suppress,

finding that the inventory search by the officers was proper,

reasonable, and not unconstitutional. Specifically, among other

things, the district court found that, after officers arrested

Briggs for providing false information, for driving on a suspended license, and for the active warrant, “the officers

decided to impound [Briggs’] vehicle as [Briggs] was under

arrest and the vehicle was on private property. [One of the

responding officers] called for a tow to have the vehicle towed

to the police impound lot. An inventory search was then done.”

The court further found that “[o]nce the decision was made

to impound the vehicle, the police had a right to do an inventory search for protection of the property of [Briggs] and also

to protect the police from false accusations of disposition of

the property.”

Trial and Sentencing

A stipulated bench trial was held in December 2018, with

Briggs preserving the issues raised in his motion to suppress.

At the trial, the State offered video recordings of the incident,

various police reports, the property report listing the contraband found in the vehicle, and the laboratory report for the

controlled substances discovered during the vehicle search.

Two different reasons for towing the vehicle were listed on

the impounded vehicle report: drug arrest was listed under

the reason section and “[v]e[h]icle towed for safekeeping”

was listed under the details section. The impounded vehicle

supplemental report noted: “In the bag R/O found BRIGGS’s

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STATE v. BRIGGS

Cite as 28 Neb. App. 65

wallet which contained his ID and social security card. In the

side pocket of the bag R/O found a smaller fuzzy zippered

bag containing a glass pipe, needles, spoon, and small plastic

container later determined to contain methamphetamine.” The

impounded vehicle supplemental report also noted another bag

was discovered containing numerous empty small baggies and

several empty needles.

The district court found Briggs guilty of two counts of

possession of a controlled substance, both Class IV felonies.

Thereafter, Briggs was sentenced to consecutive 30-month

terms of probation on each count. Briggs timely appeals to

this court.

ASSIGNMENT OF ERROR

Briggs contends that the district court erred in denying his

motion to suppress.

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. State

v. Nielsen, 301 Neb. 88, 917 N.W.2d 159 (2018). Regarding

historical facts, an appellate court reviews the trial court’s findings for clear error, but whether those facts trigger or violate

the Fourth Amendment protection is a question of law that an

appellate court reviews independently of the trial court’s determination. Id.

ANALYSIS

[2-5] The Fourth Amendment to the U.S. Constitution

prohibits unreasonable searches and seizures. See State v.

Hidalgo, 296 Neb. 912, 896 N.W.2d 148 (2017). The Nebraska

Constitution provides a similar protection. Id. The execution

of a search warrant without probable cause is unreasonable

and violates constitutional guarantees. Id. “The recognized

exceptions to the Fourth Amendment’s warrant requirement

as applied to warrantless searches of vehicles are probable

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STATE v. BRIGGS

Cite as 28 Neb. App. 65

cause, exigent circumstances, consent, search incident to arrest,

inventory, and plain view.” State v. Ray, 9 Neb. App. 183, 188,

609 N.W.2d 390, 395 (2000).

Following a suppression hearing, the district court found

that OPD’s warrantless search of Briggs’ vehicle was a constitutionally excepted inventory search. Briggs argues the

district court erred in denying his motion to suppress evidence discovered during the warrantless search of his vehicle.

Specifically, he argues the purported inventory search was

invalid because it was improper to tow his vehicle which led

to the purported inventory search, OPD failed to satisfy its

standards for conducting an inventory search, and the inventory search was a mere ruse by officers to uncover incriminating evidence without a warrant. These arguments require that

we review both policy and law governing impoundments and

inventory searches.

[6-9] The Nebraska Supreme Court recently had occasion to

outline the constitutional principles associated with inventory

searches in State v. Nunez, 299 Neb. 340, 345-46, 907 N.W.2d

913, 917-18 (2018), in which the court held:

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. It is well recognized that inventory searches conducted according to

established policy are reasonable.

Inventory searches are considered reasonable because

they serve at least three needs unrelated 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 potential danger. These purposes impact

our analysis of the procedures used in the case before us.

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. The reason for requiring standardized criteria or

an established routine to regulate inventory searches is

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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 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 . . . .”’”

As the U.S. Supreme Court noted in South Dakota v.

Opperman, 428 U.S. 364, 369-71, 96 S. Ct. 3092, 49 L. Ed. 2d

1000 (1976):

When vehicles are impounded, local police departments generally follow a routine practice of securing and

inventorying the automobiles’ contents. These procedures

developed in response to three distinct needs: the protection of the owner’s property while it remains in police

custody, United States v. Mitchell, 458 F. 2d 960, 961

(CA9 1972); the protection of the police against claims

or disputes over lost or stolen property, United States v.

Kelehar, 470 F. 2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v.

California, supra, [386 U.S.] at 61-62. The practice has

been viewed as essential to respond to incidents of theft

or vandalism. See Cabbler v. Commonwealth, 212 Va.

520, 522, 184 S. E. 2d 781, 782 (1971), cert. denied, 405

U. S. 1073 (1972); Warrix v. State, 50 Wis. 2d 368, 376,

184 N. W. 2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been

stolen and thereafter abandoned.

These caretaking procedures have almost uniformly

been upheld by the state courts, which by virtue of the

localized nature of traffic regulation have had considerable occasion to deal with the issue. Applying the

Fourth Amendment standard of “reasonableness,” the

state courts have overwhelmingly concluded that, even if

an inventory is characterized as a “search,” the intrusion

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is constitutionally permissible. See, e. g., City of St. Paul

v. Myles, 298 Minn. 298, 300-301, 218 N. W. 2d 697, 699

(1974); State v. Tully, 166 Conn. 126, 136, 348 A. 2d 603,

609 (1974); People v. Trusty, 183 Colo. 291, 296-297,

516 P. 2d 423, 425-426 (1973); People v. Sullivan, 29

N. Y. 2d 69, 73, 272 N. E. 2d 464, 466 (1971); Cabbler

v. Commonwealth, supra; Warrix v. State, supra; State

v. Wallen, 185 Neb. 44, 173 N. W. 2d 372, cert. denied,

399 U. S. 912 (1970); State v. Criscola, 21 Utah 2d 272,

444 P. 2d 517 (1968); State v. Montague, 73 Wash. 2d

381, 438 P. 2d 571 (1968); People v. Clark, 32 Ill. App.

3d 898, 336 N. E. 2d 892 (1975); State v. Achter, 512

S. W. 2d 894 (Mo. Ct. App. 1974); Bennett v. State, 507

P. 2d 1252 (Okla. Crim. App. 1973); People v. Willis, 46

Mich. App. 436, 208 N. W. 2d 204 (1973); State v. All, 17

N. C. App. 284, 193 S. E. 2d 770, cert. denied, 414 U. S.

866 (1973); Godbee v. State, 224 So. 2d 441 (Fla. Dist.

Ct. App. 1969). Even the seminal state decision relied

on by the South Dakota Supreme Court in reaching the

contrary result, Mozzetti v. Superior Court, 4 Cal. 3d 699,

484 P. 2d 84 (1971), expressly approved police caretaking

activities resulting in the securing of property within the

officer’s plain view.

The majority of the Federal Courts of Appeals have

likewise sustained inventory procedures as reasonable police intrusions. As Judge Wisdom has observed:

“[W]hen the police take custody of any sort of container [such as] an automobile . . . it is reasonable to

search the container to itemize the property to be held

by the police. [This reflects] the underlying principle

that the fourth amendment proscribes only unreasonable

searches.” United States v. Gravitt, 484 F. 2d 375, 378

(CA5 1973), cert. denied, 414 U. S. 1135 (1974) (emphasis in original).

Taken together, valid inventory searches have been established as reasonable searches because of the need for officers

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to protect themselves once they have properly taken custody

of property. But Briggs argues that the officers did not properly impound his vehicle, they did not follow their established

policy of inventorying a vehicle, and their search labeled as an

inventory search was, in fact, a ruse for a custodial investigation. We will analyze these arguments independently.

Impoundment

In recognition that police custody or impoundment is a

condition precedent to an inventory search, Briggs argues

that impoundment of his vehicle was unnecessary. In connection with this claim, Briggs cites to OPD’s stated impoundment policy whereby officers are instructed to lock and leave

vehicles whenever possible. He argues that his vehicle was

not parked on a public street or highway, was not obstructing traffic, had not been involved in an accident, was not

reported stolen, and had no unpaid parking tickets. He further

argues that OPD had not received a request from the commercial parking lot owner to have the vehicle removed, nor did

OPD seek permission from the parking lot owner to leave the

vehicle there.

The U.S. Supreme Court confronted a similar question governing the discretion of police officers in impounding a vehicle

in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed.

2d 739 (1987). The U.S. Supreme Court, in determining the

constitutionality of an officer’s exercise of discretion in determining whether to impound a vehicle, held:

Nothing in [South Dakota v.] Opperman[, 428 U.S. 364,

96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976),] or [Illinois

v.] Lafayette[, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed.

2d 65 (1983),] prohibits the exercise of police discretion so long as that discretion is exercised according to

standard criteria and on the basis of something other

than suspicion of evidence of criminal activity. Here, the

discretion afforded the Boulder police was exercised in

light of standardized criteria, related to the feasibility and

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appropriateness of parking and locking a vehicle rather

than impounding it. There was no showing that the police

chose to impound [the defendant’s] van in order to investigate suspected criminal activity.

Colorado v. Bertine, 479 U.S. at 375-76.

In U.S. v. Jackson, 682 F.3d 448 (6th Cir. 2012), the Sixth

Circuit Court of Appeals held that police properly exercised

discretion in towing a vehicle from a private driveway where

the driver and passenger were not legal drivers and neither had

a connection with the owners of a private driveway where the

vehicle was parked and that the action conformed to police policy and to local ordinances governing vehicles left on private

property. In so holding, the court rejected the appellant’s argument that the officer should first have contacted the property

owner or the vehicle owner’s fiance before towing the vehicle.

In so rejecting this assertion, the court held:

[W]e rejected a similar argument in United States v.

Kimes, 246 F.3d 800 (6th Cir. 2001), stating: “Discretion

as to impoundment is permissible ‘so long as that discretion is exercised according to standard criteria and on

the basis of something other than suspicion of evidence

of criminal activity.’ Colorado v. Bertine, 479 U.S. 367,

375-376, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Here,

as we gather, V.A. police sometimes permitted vehicles

to be picked up by a driver’s friends and relations if

they were already present or if the driver could contact

them and get them to come to the facility promptly. [The

defendant] suggests that rather than towing his truck, the

officers should have taken it upon themselves to call his

wife and ask her to get the vehicle. He cites no authority compelling such a conclusion, and we are aware

of none.”

U.S. v. Jackson, 682 F.3d at 454.

Briggs makes a similar argument here. However, during

the suppression hearing, an OPD officer testified that OPD

impound policy provides discretionary authority for officers

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to impound and tow vehicles in the exercise of public safety,

among other reasons.

We note at this point that the State relied upon oral testimony from OPD’s officers governing OPD’s policies for both

impoundment and inventory searches in lieu of offering a

written policy into evidence. We further note that during crossexamination, Briggs’ counsel referred to OPD’s “manual” in

questioning the officers about OPD’s policies but, for whatever

reason, did not offer OPD’s written policies into evidence or

clarify if written policies existed.

[10] In State v. Filkin, 242 Neb. 276, 494 N.W.2d 544

(1993), the Nebraska Supreme Court examined the requirement

for written policies in connection with establishing law enforcement’s standardized procedures. In doing so, the court held:

While a written policy is obviously the best means

by which to establish the existence of a standardized

policy, see 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 (1990), and at least one

state has held that such procedures must be in writing to

pass muster under the state Constitution, Commonwealth

v. Bishop, 402 Mass. 449, 523 N.E.2d 779 (1988), such

written policy is not an indispensable requirement.

For example, in U.S. v. Frank, 864 F.2d 992 (3d Cir.

1988), cert. denied 490 U.S. 1095, 109 S. Ct. 2442,

104 L. Ed. 2d 998 (1989), the fact that an officer testified to the existence of standard police procedures and

a detective testified that he followed them was held to

be sufficient to render an inventory search valid. Noting

that “[n]o Supreme Court case has ever held an inventory search invalid because of the absence of formalized

pre-existing standards,” the U.S. Court of Appeals for

the Third Circuit proclaimed that “no standard for the

scope of the inventory other than the listing of every

item of property would satisfy the relevant governmental

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interests.” 864 F.2d at 1003-04. The court continued, stating that “[c]ertainly the [Supreme] Court did not intend to

lay down a constitutional requirement that the police have

a written standard for conducting an inventory that merely

states the obvious. Such a requirement would add nothing to the protection of privacy interests, for no standard

ever would be laid down except that of completeness.

Inventory searches by their nature afford the police the

opportunity to eliminate expectations of privacy in personal property lawfully in police custody. It seems likely,

therefore, that all that Bertine requires is a standard as to

when inventories should be made.” (Emphasis supplied.)

864 F.2d at 1004. See, also, U.S. v. Kornegay, 885 F.2d

713 (10th Cir. 1989), cert. denied 495 U.S. 935, 110 S.

Ct. 2179, 109 L. Ed. 2d 508 (1990) (officer testimony of

customary and standardized procedure held sufficient in

absence of written guidelines); Madison v. United States,

512 A.2d 279 (D.C. App. 1986) (although capitol police

did not have written guidelines, fact that officer testified

he had been trained by his supervisors and conducted

search in accordance with such training held sufficient);

State v. Weide, 155 Wis. 2d 537, 549, 455 N.W.2d 899,

905 (1990) (“[a]lthough it may be preferable, there is

no rule of law that the policy or procedure governing

the inventory search must be in writing”). Cf. People v.

Bayles, 76 Ill. App. 3d 843, 846-47, 395 N.E.2d 663, 666

(1979), aff’d 82 Ill. 2d 128, 411 N.E.2d 1346 (1980), cert.

denied 453 U.S. 923, 101 S. Ct. 3160, 69 L. Ed. 2d 1005

(1981) (officer testified that he had “‘nothing on paper’”

concerning his inventory policy, replied that he “‘really

couldn’t tell you whether I have or not, it’s a possibility’”

to whether he instructed his deputies to open closed containers, and that it was his practice to open and inventory

a closed container “‘if it’s not locked’”).

Thus, there is no constitutional requirement that inventory policies be established in writing.

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State v. Filkin, 242 Neb. 276, 283-84, 494 N.W.2d 544, 549-

50 (1993).

As such, we analyze OPD’s policies governing impoundment and inventories on the basis of the officers’ testimony in

our record. Here, the officers testified as to their broad discretion to impound vehicles on the basis of public safety. During

the suppression hearing, the officers testified as to exercising that discretion in relation to having arrested Briggs, who

was driving on a suspended license, following his placement

of the vehicle in a private lot. After reviewing the evidence,

the trial court found: “As a result of the arrest of [Briggs],

the owner of the vehicle, the officers decided to impound

[Briggs’] vehicle as [Briggs] was under arrest and the vehicle

was on private property.” We find no authority which provides

that the officers were first required to contact the property

owner to determine whether the vehicle could remain on the

private property while the vehicle’s owner, who was driving

the vehicle on a suspended license, was arrested and removed,

and Briggs cites to none. And although the officers’ testimony

at the suppression hearing governing OPD’s safety policy is

not as detailed as the policy articulated in U.S. v. Jackson,

682 F.3d 448 (6th Cir. 2012), it appears to provide broad

discretion to its officers in determining whether an unattended vehicle poses a safety concern. As we discuss more

later in this opinion, the ultimate question here is whether the

officers’ claim of having impounded Briggs’ vehicle for safekeeping and the resulting inventory of the vehicle’s contents

was pretextual or a ruse for their true motive of performing a

warrantless search of Briggs’ vehicle. But as to this specific

assignment of error in connection with that question, we do

not find that the court erred in finding that the officer had a

right to impound Briggs’ vehicle under these circumstances

based upon OPD’s stated policy, nor erred in finding the officers decided to impound Briggs’ vehicle before conducting

their search.

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STATE v. BRIGGS

Cite as 28 Neb. App. 65

Inventory Search

Briggs next argues that the inventory search of his vehicle

was invalid because the process followed by OPD failed to

conform with its inventory policy. Specifically, Briggs argues:

In addition to the unnecessary tow and inventory search,

the responding officers failed to follow the OPD’s procedures and policies for conducting an inventory search.

This is evidenced by the fact that they did not draft or

create an inventory report of the property found in . . .

Briggs’ vehicle. OPD policy is unambiguous in that officers are required to inventory all personal property items

left in the vehicle whenever officers tow a vehicle. . . .

Here, despite having a clear understanding of OPD’s policies and procedures, the responding officers never drafted

an inventory report.

Brief for appellant at 11 (emphasis in original). Briggs later

argues: “Officers ultimately drafted a property report; however, the property report only lists the contraband that was

seized from . . . Briggs’ vehicle, including drug paraphernalia,

methamphetamine, and cocaine. . . . The officers did not inventory any of . . . Briggs’ personal property.” Brief for appellant

at 12.

We first note that although Briggs claims that OPD was

required to inventory all personal property items in connection

with its inventory, the testimony on this issue is not that clear.

On direct examination governing OPD’s inventory policy, the

following colloquy took place:

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 the inventory

search?

A. To make sure there’s no high value items in the

vehicle or any dangerous substances or anything like that.

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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.

Later, during cross-examination, Briggs’ counsel asked:

Q. Okay. When you inventory a car, you are 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, right?

A. Correct.

Briggs’ counsel did not obtain any further clarification on

this topic.

On direct examination, the officer’s testimony clearly stated

that OPD’s policy required identifying and cataloging items

of high value. It is unclear whether the officer’s response

on cross-examination was clarifying that all property in the

vehicle was required to be cataloged or whether he was referencing his previous testimony that all property that the officers

determined to be of high value was to be cataloged. Either

way, the officer then testified that officers did fail to prepare

a separate inventory log and instead prepared only a property

report after viewing the contents of Briggs’ vehicle. Deeming

this a failure to comply with OPD’s stated policy, Briggs

argues that the inventory search was invalid.

[11,12] A similar argument was made in State v. Nunez, 299

Neb. 340, 907 N.W.2d 913 (2018). In Nunez, the defendant

was stopped for speeding and the officers discovered that his

drivers’ license was suspended and that there was an active

warrant for his arrest. After arresting the defendant, the officers

decided to impound the vehicle, and during a search of the

vehicle, officers found a container holding a substance which

tested positive for methamphetamine. The defendant subsequently moved to suppress all evidence obtained as a result

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of the search of his vehicle, and the State took the position

the search fell within the inventory exception to the warrant

requirement. In response, the defendant argued that the police

inventory policy required the police to prepare a property evidence report of inventoried items and that the police failed to

comply with its own policy of proper documentation. In rejecting this argument, the Nebraska Supreme court held:

A failure to strictly follow established policy does

not render an inventory search unconstitutional per se.

“‘Compliance with procedures merely tends to ensure

the intrusion is limited to carrying out the government’s

caretaking function.’” 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.”’”

State v. Nunez, 299 Neb. at 348, 907 N.W.2d at 918-19. After

then distinguishing the case of State v. Newman, 250 Neb. 226,

548 N.W.2d 739 (1996), which we discuss more fully in the

next section of this opinion, the court ultimately held: “Here,

the alleged technical errors on the inventory sheet and the lack

of an evidence report do not raise the same inference [of a ruse

for a general rummaging in order to discover incriminating

evidence].” State v. Nunez, 299 Neb. at 349, 907 N.W.2d at

919. As such, like Nunez, the failure of the officers to properly document all of Briggs’ property in connection with their

search does not, in and of itself, render the search unconstitutional per se. Instead, the ultimate question is whether the

claimed inventory search was simply pretext for a general

rummaging by the police in order to discover incriminating

evidence. That question is captured by Briggs’ final argument,

and we discuss it below.

Inventory Search: Inventory or Pretext?

Briggs finally argues that the State’s claim that it was conducting an inventory search was a pretext to its true motive of

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discovering incriminating evidence. In connection therewith,

Briggs argues that upon learning about Hakl’s criminal record,

the officers made numerous requests to search Hakl’s purse

and the vehicle but were denied. Following these denials,

the officers learned of the arrest warrant for Briggs, arrested

him, and then stated among themselves (as captured on an

officer’s body camera), “Now we can search it.” After Briggs

was secured in the police cruiser, the initial officer asked, “I

think we can search that car now, can’t we? Search incident

to arrest?” One of the responding officers then clarified that it

was “an inventory search,” to which the initial officer replied,

“Inventory search, yeah.” Briggs argues that these facts and

statements betray the officers’ investigative motive underlying the vehicle search. Briggs further argues that the officers

lacked consensus over the reason they impounded the vehicle

and that the record points to the inconsistent reasons for

impounding the vehicle as both a drug arrest and a “[v]e[h]icle

towed for safekeeping.” Briggs finally argues that this record,

taken together with the officers’ lack of compliance with

OPD’s policies regarding documentation of Briggs’ property,

demonstrates that the inventory search was mere pretext for the

search of Briggs’ vehicle.

As we have previously noted, the ultimate question here

is not whether OPD failed to explicitly comply with all

procedures in connection with its inventory policy. The ultimate question is whether this reasonably can be determined

to be an inventory search and not “‘“a ruse for a general

rummaging in order to discover incriminating evidence.”’”

State v. Nunez, 299 Neb. 340, 349, 907 N.W.2d 913, 919

(2018), quoting State v. Filkin, 242 Neb. 276, 494 N.W.2d

544 (1993). The difference was highlighted by the Nebraska

Supreme Court in State v. Newman, 250 Neb. 226, 548

N.W.2d 739 (1996).

In Nunez, the Nebraska Supreme Court summarized the

facts and holding in Newman and distinguished it from Nunez

as follows:

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In Newman, Lincoln police notified 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 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 distinguishable 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 incriminating evidence.’” 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 incriminating evidence. Here, the alleged technical errors on the inventory

sheet and the lack of an evidence report do not raise the

same inference.

299 Neb. at 348-49, 907 N.W.2d at 919.

In arguing that this case is more like Newman and less like

Nunez, Briggs cites this court to U.S. v. Rowland, 341 F.3d 774

(8th Cir. 2003).

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The Rowland case does present facts somewhat similar

to the case at bar. In Rowland, police pulled over a vehicle

which they observed to be weaving in traffic and confronted

the driver who misidentified herself and turned out to be driving without a license. The driver likewise had a passenger

who properly identified himself and who turned out to have

an outstanding arrest warrant. The vehicle in which the two

were traveling was registered to a third party who could not

be reached, and the police became concerned that the vehicle

was stolen despite the passenger’s contention that he was in the

process of purchasing the vehicle.

The police in Rowland ultimately decided to impound the

vehicle and began a roadside inventory search. During the

search, the officers discovered drug paraphernalia. The vehicle

was then towed, and police performed another more thorough

inventory search of the vehicle and discovered a handgun.

Similar to the case at bar, after performing the search, the

officers did not record all of the property in the vehicle but

only recorded items which might be used as possible evidence.

After unsuccessfully moving to suppress the firearm, the passenger pled guilty to being a felon in possession of a firearm,

but reserved his right to appeal the district court’s denial of his

motion to suppress on the basis that the firearm was discovered

during an invalid inventory search.

Although the Eighth Circuit similarly concluded that the

police were justified in impounding the vehicle in accordance

with its policy, the court in Rowland ultimately concluded

that the corresponding inventory search was invalid. In finding that the inventory search was invalid, the court first

noted the discrepancy between the law enforcement agency’s

written inventory policy which required law enforcement

to catalog all property within the vehicle and the officer’s

testimony that, in practice, officers interpreted the policy to

require them to catalog only significant property. In expressing concern for the officer’s purported unwritten contradictory

policy, the court noted that “our research has not revealed a

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case allowing the written procedures for law enforcement to

be eroded by unwritten practice.” U.S. v. Rowland, 341 F.3d

at 780.

Second, although recognizing the practiced difficulties in

requiring police to record every single item in a vehicle packed

full of miscellaneous items, the court held:

Even assuming a literal listing of each and every article

is not required, law enforcement’s conduct still does

not withstand scrutiny. Officers did not even generally

note: “clothing” or “food items” or “boxes” or even “a

multitude of miscellaneous items” as the government so

colorfully puts it. What strikes us as absurd, therefore,

is despite not even making these general notations, the

government nonetheless argues it complied with a written

policy which required it to record all property.

U.S. v. Rowland, 341 F.3d 774, 780 (8th Cir. 2003). Based

upon these findings, the court concluded that “it is our opinion by failing to make a record of all property within the

vehicle, law enforcement failed to follow its own procedures

and thus did not conduct the search pursuant to ‘standardized police procedures.’” Id. However, the court indicated

that finding alone was not dispositive of the outcome. The

court reasoned:

Even 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. E.g., United States v. Mayfield, 161

F.3d 1143, 1145 (8th Cir. 1998). “Compliance with procedures merely tends to ensure the intrusion is limited

to carrying out the government’s care-taking function.”

Id. There must be something else; something to suggest

the police raised “the inventory-search banner in an afterthe-fact attempt to justify” a simple investigatory search

for incriminating evidence. [U.S. v.] Marshall, 986 F.2d

[1171,] 1175 [8th Cir. 1993)].

U.S. v. Rowland, 341 F.3d at 780.

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In Rowland, the court concluded that in addition to the failure of law enforcement to follow its own procedures, “[h]ere

there was something else.” 341 F.3d at 780. The court then

pointed to a myriad of factors which led them to the conclusion that the inventory search was simply a label for an investigatory search. Those factors included the officer’s request

for a drug-sniffing dog; the officers’ repeated questions to the

defendant as to whether there was contraband in the vehicle;

the officers’ investigation of the vehicle’s occupants while

both were detained but not arrested; the officers’ admission to

searching partly to discover the presence of narcotics; and the

officers’ failure to record the defendant’s property even in the

most general of ways, in accordance with the agency’s written

policy. On that basis, the court ultimately concluded:

[I]t appears law enforcement sifted through the vehicle’s

contents searching only for and recording only incriminating evidence; something law enforcement may not

do. See id. at 1175 (“The requirement that standardized

criteria or established routine exist as a precondition to a

valid inventory search ‘is based on the principle that an

inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.’”)

(citation omitted).

Accordingly, this search was not a valid inventory

search; more is expected of law enforcement.

U.S. v. Rowland, 341 F.3d 774, 782 (8th Cir. 2003).

Briggs argues for a similar conclusion, contending that

many of the factors present in the Rowland case are present

here and that, although Rowland does not present mandatory

authority for this court, its holding provides persuasive authority for a similar outcome.

Before reaching an outcome here, we must first note the

legal parallels between State v. Nunez, 299 Neb. 340, 907

N.W.2d 913 (2018), and U.S. v. Rowland, supra. In Nunez, the

Nebraska Supreme Court reiterated that “the purpose of requiring searches to be conducted according to established policy is

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to ensure that inventory searches are ‘“not . . . a ruse for a general rummaging in order to discover incriminating evidence.”’”

299 Neb. at 349, 907 N.W.2d at 919, quoting State v. Filkin,

242 Neb. 276, 494 N.W.2d 544 (1993). In Rowland, the Eighth

Circuit stated: “‘Compliance with procedures merely tends to

ensure the intrusion is limited to carrying out the government’s

care-taking function.’ . . . There must be something else; something to suggest the police raised ‘the inventory-search banner

in an after-the-fact attempt to justify’ a simple investigatory

search for incriminating evidence.” 341 F.3d at 780. Briggs

argues that the officers’ testimony that they did inventory the

contents of Briggs’ vehicle and failed to catalog its contents

because of its lack of value are all pretextual explanations

for their true motive, which was to conduct an investigatory

search of Briggs’ vehicle for incriminating evidence. He urges

this court to conclude the district court erred in determining

that the officers’ alleged inventory search was not a ruse or

pretextual and that the evidence established sufficient proof

the officers were conducting a valid inventory search and not

raising the inventory search label in an after-the-fact attempt to

justify a simple investigatory search.

[13,14] In reviewing the district court’s finding, we first

must identify our standard of review with respect to the district

court’s findings. In State v. Vann, 230 Neb. 601, 432 N.W.2d

810 (1988), the Nebraska Supreme Court reviewed the district court’s order overruling a motion to suppress where the

court found a police officer’s arrest of the defendant was not

merely pretext for his true motive to search the defendant for

evidence of a crime. In its review, the court held that “[t]he

word ‘pretext’ is defined in Webster’s Third New International

Dictionary, Unabridged 1797 (1981), as ‘a purpose or motive

alleged or an appearance assumed in order to cloak the real

intention or state of affairs.’” State v. Vann, 230 Neb. at 605,

432 N.W.2d at 814. The court then stated, “In Taglavore v.

United States, 291 F.2d 262, 265 (9th Cir. 1961), the court

determined that a pretext arrest was one ‘[w]here the arrest

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is only a sham or a front being used as an excuse for making

a search . . . .’” State v. Vann, 230 Neb. at 605, 432 N.W.2d

at 814.

[15] After reviewing this authority, the court affirmatively

held:

In interpreting the phrase, we hold that the determination

of whether an arrest is pretextual is a question of fact for

the trial court. This court will not reverse a trial court’s

finding on this question unless the finding is clearly

erroneous. See U.S. v. Portwood, 857 F.2d 1221 (8th

Cir. 1988).

State v. Vann, 230 Neb. at 605-06, 432 N.W.2d at 814.

In State v. Chronister, 3 Neb. App. 281, 285-86, 526 N.W.2d

98, 103 (1995), our court likewise surmised:

A pretextual stop is one in which the officer’s stated

purpose or motive for the stop conceals his real intention or the real state of affairs. State v. Van Ackeren, 242

Neb. 479, 495 N.W.2d 630 (1993), cert. denied [510]

U.S. [836], 114 S. Ct. 113, 126 L. Ed. 2d 78. . . . The

determination of whether a stop is pretextual is a question of fact for the trial court and will not be reversed by

the appellate court unless clearly erroneous. See State v.

Vann, 230 Neb. 601, 432 N.W.2d 810 (1988). Although

not explicitly stated in the trial court’s journal entry, the

denial of the suppression of evidence carries the implicit

finding that the stop was not pretextual. There is no rule

of law that when the trial court acts as the fact finder, as

is the case when ruling on a suppression motion, specific

findings of fact must be made. See State v. Franklin, 241

Neb. 579, 489 N.W.2d 552 (1992).

Here, likewise, we conclude that the district court’s finding

that, despite its abnormalities, OPD officers did conduct an

inventory search and not an investigatory search was a finding

of fact which will not be reversed unless clearly erroneous.

Accordingly, we must determine whether the court clearly

erred in finding OPD officers did conduct an inventory search.

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[16,17] In making this analysis, we are cognizant of the

similarities between the instant case and U.S. v. Rowland, 341

F.3d 774 (8th Cir. 2003). We recognize the officers’ deficiencies in failing to catalog items uncovered during their search

of Briggs’ vehicle. We are aware that OPD officers likewise

called for a “K-9 unit,” repeatedly asked for permission to

search the interior of the vehicle, and were likely performing some investigatory function as a result of suspicious

circumstances discovered following their encounter with the

occupants of the vehicle. But we likewise recognize facts that

distinguish the instant case from U.S. v. Rowland, supra. The

basis of OPD’s policy governing cataloging items is unclear

after reviewing the testimony and does not present as clear a

case of departure from operating procedure as did Rowland.

Second, the officers in Rowland acknowledged an investigatory motive in conducting their search while no such acknowledgment was present here. Most notably, the case at bar differs significantly from Rowland in that prior to commencing

a search of Briggs’ vehicle, the OPD officers discussed their

right, following impound of the vehicle, to now inventory

the vehicle. This would clearly provide some support for the

State’s argument that OPD did not affix an “inventory search”

label after the fact in order to retroactively cloak an otherwise

improper investigatory search. The district court concluded

that the officers sifted through the contents of Briggs’ vehicle

and opted not to catalog its items because of the lack of value

rather than believing Briggs’ argument that the testimony was

a ruse for the officers’ true investigatory motives. In connection with that testimony, the district court had the opportunity

to view the witnesses in weighing their credibility. At a hearing to suppress evidence, the court, as the trier of fact, is the

sole judge of the credibility of witnesses and the weight to be

given to their testimony and other evidence. State v. Arizola,

295 Neb. 477, 890 N.W.2d 770 (2017). In determining whether

a trial court’s findings on a motion to suppress are clearly

erroneous, an appellate court recognizes the trial court as the

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“‘“trier of fact”’” and takes into consideration that the trial

court has observed witnesses testifying regarding such motion

to suppress. Id. at 486, 890 N.W.2d at 778.

Although we are certainly cognizant that a fact finder could

find facts like these indicative that the officers’ true motive

was investigatory and that this was not an inventory, we cannot conclude that the district court’s finding was clearly erroneous. Even though the record in this case presents a closer

case than State v. Nunez, 299 Neb. 340, 907 N.W.2d 913

(2018), we likewise believe the totality of the facts here do not

demonstrate that the district court clearly erred in finding that

the officers’ self-described inventory search was not a mere

pretext for an improper evidentiary search. In so finding, we

first note that the district court found, after reviewing the body

camera footage and listening to the testimony presented at the

suppression hearing, that after officers arrested Briggs for providing false information, driving on a suspended license, and

the active warrant, “the officers decided to impound [Briggs’]

vehicle as [Briggs] was under arrest and the vehicle was on

private property. [One of the responding officers] called for

a tow to have the vehicle towed to the police impound lot.

An inventory search was then done.” Although we understand

Briggs’ contention that the officers simply moved from his

arrest to the search based upon their belief in their right to

now search the vehicle without reference to impoundment or

public safety, the district court found otherwise. The district

court’s finding that prior to conducting the inventory search,

the officers made the decision to impound the vehicle represents a finding of fact which will not be disturbed by an

appellate court unless clearly erroneous. See State v. Nielsen,

301 Neb. 88, 917 N.W.2d 159 (2018) (appellate court reviews

trial court’s findings regarding historical facts for clear error).

Because there is support in the record at the suppression

hearing for the court’s finding, we do not believe this finding to be clearly erroneous. And as we have previously

noted, that decision by the police to tow Briggs’ vehicle for

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safekeeping, on these facts, was within their discretion and

was not unreasonable.

[18] As our case law makes clear, once the police rightfully

made the decision to impound Briggs’ vehicle, they were entitled to inventory its contents for their own protection. Unlike

the facts in State v. Newman, 250 Neb. 226, 548 N.W.2d 739

(1996), the State did not label the search as an inventory search

after the fact having failed to conduct the search when it had

the right to do so. Instead, contemporaneously with making

the decision to arrest Briggs and impound his vehicle, the

officers verbally discussed their right to conduct an inventory search of the vehicle following the decision to impound

it. Like Nunez, this case does not present an issue of timing,

such as in Newman, where a search was conducted utilizing

the label of an “inventory search” once the police opted not

to perform that search, even though it was originally within

their right to do so, until they were presented with an ulterior

motive to conduct the search. And we further note that “in the

context of administrative and inventory searches, [the] ulterior

motives of an officer do not invalidate police conduct that is

objectively justifiable. Whren v. U.S., [517] U.S. [806], 116 S.

Ct. 1769, 135 L. Ed. 2d 89 (1996).” State v. Flanagan, 4 Neb.

App. 853, 858, 553 N.W.2d 167, 172 (1996). Taken together,

although the initial officer may have also had an investigatory

motive in desiring to search Briggs’ vehicle, having reasonably

determined that the officers should impound Briggs’ vehicle,

the police likewise had a reasonable right to inventory the

vehicle’s contents and the officers’ timely discussion about

inventorying the vehicle underscores their acknowledgment of

that principle.

Finally, although the police admittedly did not catalog all of

the property in Briggs’ vehicle, they did, in fact, inspect that

property. Contrary to Briggs’ assertion that the officers’ search

was limited to finding the contraband and associated evidence,

the body camera video depicts that the officers did inspect the

other contents of the vehicle and, ultimately, according to the

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district court’s factual finding, decided not to catalog its contents because of its limited value. Again, we do not find that

factual finding to be clear error. See State v. Nielsen, supra

(appellate court reviews trial court’s findings regarding historical facts for clear error). Although we do not condone this

practice and caution that failure to follow police policies could

lead a future court to conclude that a search does not qualify

as an inventory search, we do not make that conclusion here.

Because the district court found that the officers decided to

impound Briggs’ vehicle before conducting its search, which

finding was not clearly erroneous; because the officers’ decision was discretionary and not unreasonable in accordance

with OPD’s stated policy; because the officers contemporaneously discussed performing an inventory before conducting

their search as opposed to labeling it as an inventory search

after the fact; because the officers appear to have inventoried

the contents of the vehicle even though they failed to catalog

all of its contents; and because of some support in the record

for the officers’ responsibility to catalog property of only high

value, we hold that the district court did not clearly err in finding the police claim of an inventory search was not pretextual

and therefore conclude that this was a valid inventory search

of Briggs’ vehicle and not a pretext for a general rummaging

in order to discover incriminating evidence. Briggs’ assignment of error fails.

For the reasons set forth above, we affirm.