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STATE v. NUNEZ

Cite as 299 Neb. 340

State of Nebraska, appellee, v.

Mark P. Nunez, appell

___ N.W.2d ___

Filed March 16, 2018. No. S-17-398.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error. But whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Search and Seizure: Police Officers and Sheriffs. 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.

3. Search and Seizure. The propriety of an inventory search is judged by 

a standard of reasonableness, and such a search must be conducted in 

accordance with standard operating procedures.

4. ____. An inventory search must not be a ruse for a general rummaging 

in order to discover incriminating evidence.

5. Search and Seizure: Police Officers and Sheriffs: Evidence: Proof. 

Under the inevitable discovery doctrine, challenged evidence is admissible if the State shows by a preponderance of the evidence that the 

police would have obtained the disputed evidence by proper police 

investigation entirely independent of the illegal investigative conduct.

6. Constitutional Law: Search and Seizure. A failure to strictly follow 

established policy does not render an inventory search unconstitutional 

per se.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/01/2018 09:08 AM CDT
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7. ____: ____. Whether a search is permissible under the Fourth 

Amendment depends on whether it is reasonable, and the test of reasonableness cannot be fixed by per se rules; each case must be decided on 

its own facts.

Appeal from the District Court for Washington County: Joh

E. Samson, Judge. Affirm

Sean M. Conway and Kate O. Rahel, of Dornan, Troia, 

Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Joe Meyer for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, St

Funke, J

Cassel, J.

I. INTRODUCTION

Following a traffic stop leading to a driver’s arrest, officers 

searched the vehicle before impounding it and discovered 

methamphetamine. Contrary to policy, a completed inventory 

sheet did not list the methamphetamine, and the officers apparently failed to separately list it. The driver unsuccessfully 

sought to suppress the evidence. Because we conclude that the 

search was reasonable and that the procedural defects did not 

raise an inference the search was conducted to discover evidence, we affirm the judgment below.

II. BACKGROUND

1. Arrest and Overview of S

In August 2016, Mark P. Nunez was stopped by Sgt. Jacob 

Hoffman of the Washington County sheriff’s office for speeding. Nunez’ 7-year-old son was the only passenger. After 

Hoffman approached Nunez’ vehicle, Nunez informed Hoffman 

that he thought his driver’s license had been suspended for failure to pay child support. Hoffman then returned to his patrol 
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car and confirmed with dispatch that Nunez’ driver’s license 

was indeed suspended and found that it was suspended in both 

Nebraska and Iowa. Hoffman also discovered that there was 

an active warrant for Nunez’ arrest. Hoffman then returned to 

the vehicle to arrest Nunez. Hoffman handcuffed Nunez and 

placed him in the patrol car. The child was transported by 

another officer to one of Nunez’ friends or family. The vehicle 

was impounded.

Before the vehicle was impounded, Hoffman and another 

officer searched the vehicle for the keys. While looking for the 

keys, Hoffman discovered a pipe. After the keys were located, 

the officers continued to search the vehicle and discovered a 

black container holding a substance that tested positive for 

methamphetamine. Nunez was charged with one count of possession of a controlled substance, along with one count of driving under a suspended license.

2. Motion to Suppr

Prior to the bench trial, Nunez moved to suppress all evidence obtained as a result of the search of his vehicle, alleging 

that the warrantless search violated his constitutional rights. 

The State took the position that the search fell within the 

inventory exception to the warrant requirement.

At a hearing on the motion to suppress, the State called 

Hoffman to testify and entered into evidence a document outlining the Washington County sheriff’s office’s policy and procedures for impounded vehicles (“written policy”), as well as a 

video from Hoffman’s body camera.

(a) Policy on Impounded Vehicles

The written policy states, in relevant part:

Any vehicle seized and impounded shall be inventoried. The sheriff’s office impound/inventory report form 

shall be completed with all identified items listed on the 

impound/inventory sheet. All unlocked containers are to 

be searched and inventoried. If the vehicle has a trunk 
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Cite as 299 Neb. 340

release or if we are in custody of the keys, the trunk shall 

be inventoried, including any unlocked containers.

. . . .

. . . If any evidence or contraband is seized as the result 

of a vehicle impound[,] the item shall be listed on the 

impound/inventory report form with the word “evidence” 

listed next to the item. The property/evidence report 

form shall be completed on the item seized, tracking the 

item from the impound/inventory sheet to the property/

evidence sheet. The property/evidence tag number and 

where item was secured shall be listed on the property/

evidence report form.

Hoffman also testified about the Washington County sheriff’s office’s policy regarding impounded vehicles. He testified 

that according to the office’s policy, officers are to “go through 

the vehicle and mark up anything that’s of value and . . . check 

all unlocked containers in the vehicle, and if there’s keys . . . 

check the trunk.”

(b) Search for Keys

Footage from Hoffman’s body camera depicted the stop, 

Nunez’ arrest, and events thereafter. The video shows that 

after Nunez was arrested, Hoffman informed Nunez that his 

vehicle would be towed. Nunez then asked Hoffman if he 

had the keys or if the other officer had the keys. Hoffman 

responded that Nunez had the keys. Since Nunez was handcuffed, Hoffman told Nunez that he would get them for him. 

Hoffman then patted Nunez’ pockets, apparently not locating 

the keys. He then instructed an officer standing nearby to 

check the vehicle, stating that he did not think Nunez had the 

keys. The video shows the other officer searching the back 

seat of the vehicle.

After Nunez was secured in the back of the patrol car, 

Hoffman went to help the other officer locate the keys. 

After they were unable to locate the keys in the passenger 

compartment of the vehicle, they questioned Nunez about 
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whether he had “chuck[ed] [th]em.” Nunez denied getting rid 

of the keys, and Hoffman checked Nunez’ pockets again. The 

officers then returned to the vehicle to search for the keys 

again. At that time, Hoffman located a pipe in the vehicle’s 

center console underneath the steering column next to the 

gas pedal. A few minutes later, the other officer located 

Nunez’ keys.

After finding the keys, the officers continued to search 

the vehicle. They then located the black container. Hoffman 

conducted a field test on the substance in the black container, 

and it tested positive for methamphetamine. The officers 

continued to search the passenger compartment and back of 

the vehicle.

Hoffman testified that when a person is placed under arrest 

and the arrestee’s vehicle is being towed, he looks for the keys 

to the vehicle. When asked why he did so, he stated, “If the 

tow company has the keys they can put it in drive, which will 

allow the vehicle not to possibly have damage to it when they 

try to load it up or do whatever they need to do.” He added, 

“[W]e try to keep at least the ignition key in there so it’s more 

movable for the tow company.” He testified that he looked for 

Nunez’ keys for the same reason.

(c) Inventory Sheet

On cross-examination, Hoffman admitted that the inventory 

sheet was not completed during the time that the officers were 

searching for the keys. He testified that an inventory sheet was 

completed by another officer in accordance with the written 

policy. According to Hoffman, the inventory sheet was completed sometime before the vehicle was towed, but he could 

not remember if it was done before he left to transport Nunez 

to jail.

The inventory sheet was not offered into evidence at the 

hearing on the motion to suppress, but was received into evidence for the bench trial. The pipe and black container were 

not listed on the inventory sheet.
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STATE v. NUNEZ

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(d) Evidence Report

Although the written policy contemplates that a “property/

evidence report form shall be completed” on any evidence 

seized as the result of a vehicle impound, no such form 

was offered into evidence at the suppression hearing or the 

bench trial, and there was no evidence that one was ever 

completed.

3. Conviction and A

After the hearing, Nunez’ motion to suppress was overruled, and following a bench trial during which he preserved 

his objection to the evidence, Nunez was convicted of possession of a controlled substance. The district court acquitted 

Nunez of the charge of driving under a suspended license. 

Nunez was sentenced to a 2-year term of probation.

Nunez filed a timely appeal.

III. ASSIGNMENT OF ERROR

Nunez assigns that the district court erred in overruling his 

motion to suppress.

IV. STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination.1

V. ANALYSIS

The Fourth Amendment to the U.S. Constitution prohibits 

unreasonable searches and seizures.2 It is well recognized that 

1 State v. Hidalgo, 296 Neb. 912, 896 N.W.2d 148 (2017).

2 See id.
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inventory searches conducted according to established policy 

are reasonable.3

[2] Inventory searches are considered reasonable because 

they serve at least three needs unrelated to criminal 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.4

 These purposes impact our analysis of the procedures used in the case before us.

[3,4] The propriety of an inventory search is judged by a 

standard of reasonableness, and such a search must be conducted in accordance with standard operating procedures.5

 The 

reason for requiring standardized criteria or an established 

routine to regulate inventory searches is as follows:

“[A]n inventory search must not be a ruse for a general 

rummaging in order to discover incriminating evidence. 

The policy or practice governing inventory searches 

should be designed to produce an inventory. The 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 . . . .’”6

Here, Nunez argues that the search in this case was not a 

reasonable inventory search because the search was not conducted in accordance with the policy of the Washington County 

sheriff’s office. Nunez suggests that there are three ways in 

which the search did not comply with established policy: 

3 See, Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 

(1987); Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 

65 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 

L. Ed. 2d 1000 (1976).

4 Id.

5 State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996).

6 State v. Filkin, 242 Neb. 276, 282, 494 N.W.2d 544, 549 (1993) (quoting 

Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990)).
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(1) The officers were searching for keys, which Nunez claims 

is not a part of the established policy; (2) the officer who completed the inventory sheet did not list the pipe and the black 

container on it in accordance with established policy; and (3) 

the officers did not fill out an evidence report in accordance 

with established policy.

1. Search for K

First, Nunez argues that the written policy shows that 

searching for keys prior to impounding a vehicle is not an 

established part of the Washington County sheriff’s office’s 

policy. The State responds that searching for keys need not 

be part of the written policy in order to be established policy 

and that Hoffman’s testimony established it as such. The State 

also argues that even if the officers had not searched for the 

keys, the pipe and black container would still be admitted as 

evidence because they would have been inevitably discovered 

pursuant to a valid inventory search. Assuming without deciding that we do not accept Hoffman’s testimony as sufficient to 

supplement the written policy, we nonetheless agree with the 

State’s alternative argument.

[5] Under the inevitable discovery doctrine, challenged evidence is admissible if the State shows by a preponderance of 

the evidence that the police would have obtained the disputed 

evidence by proper police investigation entirely independent 

of the illegal investigative conduct.7 Here, even if the police 

had not searched for the keys, as pointed out by the State, they 

would have discovered the pipe and black container pursuant 

to the inventory search.

2. Inventory Shee

Evidence Re

Nunez also argues that certain deficiencies with the inventory sheet and evidence report show that the established policy 

7 See State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
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was not followed, thereby rendering the inventory search 

unconstitutional. We disagree.

[6,7] A failure to strictly follow established policy does 

not render an inventory search unconstitutional per se.8

“‘Compliance with procedures merely tends to ensure the 

intrusion is limited to carrying out the government’s caretaking function.’”9

 Whether a search is permissible under the 

Fourth Amendment depends on whether it is reasonable, and 

“‘“[t]he test of reasonableness cannot be fixed by per se rules; 

each case must be decided on its own facts.”’”10

In support of his argument that the officers’ failure to follow established policy invalidates the inventory search, Nunez 

cites State v. Newman.

11 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 

8 See U.S. v. Rowland, 341 F.3d 774, 780 (8th Cir. 2003) (stating “[e]ven 

when law enforcement fails to conduct a search according to standardized 

procedures, this does not mandate the suppression of the evidence 

discovered as a result of the search”).

9 Id. (quoting U.S. v. Mayfield, 161 F.3d 1143 (8th Cir. 1998)).

10 South Dakota v. Opperman, supra note 3, 428 U.S. at 373 (quoting 

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 

564 (1971)).

11 State v. Newman, supra note 5.
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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.’”12 In Newman, the timing of the search and the 

facts surrounding it raised an inference that the search was 

not designed to produce inventory, but to discover incriminating evidence. Here, the alleged technical errors on the inventory sheet and the lack of an evidence report do not raise the 

same inference.

Certainly, the fact that the evidence seized was omitted from 

the inventory sheet does not suggest that the search was conducted solely to obtain evidence; if anything, it suggests the 

opposite.13 And the fact that there was no evidence report is not 

suggestive, either.

After reviewing the facts and circumstances presented, we 

conclude that the failure to list the seized evidence on the 

inventory sheet and the failure to complete an evidence report 

for the seized evidence do not raise an inference that the search 

was conducted solely to discover evidence. Because the officers otherwise complied with the established policy, the inventory search was reasonable and Nunez’ assignment of error is 

without merit.

VI. CONCLUSION

For the reasons set forth above, we affirm Nunez’ conviction.

Affirmed

Wright and Kelch, JJ., not participati

12 State v. Filkin, supra note 6, 242 Neb. at 282, 494 N.W.2d at 549.

13 Compare U.S. v. Rowland, supra note 8 (suppressing evidence where 

officer listed only evidence seized and not other items in vehicle searched).