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Date: 03-31-2020

Case Style:

State of Nebraska v. Maurice L. Briggs

Case Number: 28 Neb. App. 65

Judge: Riko E. Bishop

Court: Nebraska Court of Appeals

Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Austin N. Relph

Defendant's Attorney:


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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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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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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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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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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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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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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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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.

Outcome: For the reasons set forth above, we affirm.

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