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STATE v. BRIGGS

Cite as 308 Neb. 84

State of Nebraska, appellee, v. 

Maurice L. Briggs, appellant.

___ N.W.2d ___

Filed January 8, 2021. No. S-19-300.

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. Constitutional Law: Search and Seizure. Both the Fourth Amendment 

to the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures.

3. Warrantless Searches. Searches without a valid warrant are per se 

unreasonable, subject only to a few specifically established and welldelineated exceptions.

4. ____. The warrantless search exceptions Nebraska has recognized 

include: (1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of evidence in 

plain view, and (5) searches incident to a valid arrest.

5. Constitutional Law: Search and Seizure: Arrests. Postarrest 

inventory searches are constitutionally permissible, and the propriety of such searches is judged by the Fourth Amendment standard 

of reasonableness.

6. Search and Seizure: Police Officers and Sheriffs: Arrests. Postarrest 

inventory searches are considered reasonable because they serve at least 

three governmental caretaking functions unrelated to criminal investigation: (1) protecting the owner’s property while it remains in police 

custody, (2) protecting the police against claims that they lost or stole 

the property, and (3) protecting police from potential danger.

Nebraska Supreme Court Online Library

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

01/29/2021 09:08 AM CST
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7. Search and Seizure. Inventory searches conducted according to established policy are reasonable.

8. ____. The reason for requiring inventory searches to be regulated by 

standardized criteria is that an inventory search must not be a ruse for a 

general rummaging in order to discover incriminating evidence.

9. Criminal Law: Search and Seizure: Police Officers and Sheriffs. A 

standardized policy or procedure governing inventory searches should 

be designed to produce an inventory. The individual police officer must 

not be allowed so much latitude that inventory searches are turned into 

a purposeful and general means of discovering evidence of crime.

10. Constitutional Law: Search and Seizure: Police Officers and 

Sheriffs. Only reasonable police regulations relating to inventory procedures administered in good faith will satisfy the Fourth Amendment. 

A reasonable inventory search policy has two key features: it must be 

designed to produce an inventory and it must limit officer discretion 

regarding when and what to search.

11. Constitutional Law: Search and Seizure: Proof. It is the State’s burden to show a search falls within the inventory search exception, and a 

failure of proof on the State’s behalf requires a finding that the search 

suffered from constitutional infirmities. The State can generally meet 

its burden by proving the inventory search was conducted pursuant to 

reasonable standardized procedures governing inventory searches.

12. Constitutional Law: Search and Seizure: Police Officers and 

Sheriffs: Proof. A written inventory search policy is recognized as 

the best means by which to prove the existence and requirements of a 

standardized procedure, but there is no constitutional requirement that 

inventory policies be established in writing. Officer testimony can also 

establish the existence of a standard procedure and show that the search 

was conducted in accordance with that procedure.

13. Constitutional Law: Search and Seizure: Proof. The State generally 

meets its burden of showing an inventory search was reasonable under 

the Fourth Amendment when it proves the search was governed by, and 

conducted in accordance with, standardized procedures.

14. Constitutional Law: Search and Seizure. The failure to strictly follow 

established policy does not render an inventory search unconstitutional 

per se.

15. Appeal and Error. In determining whether a trial court’s findings of 

historical fact are clearly erroneous, an appellate court does not reweigh 

the evidence or resolve conflicts in the evidence, but, rather, recognizes 

the trial court as the finder of fact and takes into consideration that it 

observed the witnesses.
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Petition for further review from the Court of Appeals, 

Pirtle, Riedmann, and Welch, Judges, on appeal thereto from 

the District Court for Douglas County, Peter C. Bataillon, 

Judge. Judgment of Court of Appeals reversed and remanded 

with directions.

Thomas C. Riley, Douglas County Public Defender, and 

Bethany R. Stensrud for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

The district court denied Maurice L. Briggs’ motion to suppress evidence found during a warrantless search of his vehicle, 

reasoning the search fell within the inventory search exception 

to the Fourth Amendment. Briggs was subsequently convicted 

of two counts of possession of a controlled substance. He 

appealed, challenging the denial of his motion to suppress, and 

the Nebraska Court of Appeals affirmed. On further review, 

we conclude the State failed to meet its burden of proving the 

search fell within the inventory search exception. We therefore 

reverse the decision of the Court of Appeals and remand the 

cause with directions.

I. BACKGROUND

1. Traffic Stop

In December 2017, officers from the Omaha Police 

Department (OPD) responded to a report of an assault in 

progress in a shopping center parking lot. When Officer Joe 

Eischeid arrived on the scene, witnesses reported that the people involved in the disturbance were leaving in a black Jeep. 

Eischeid followed the Jeep to a nearby auto parts store, where 

it pulled in and parked. Eischeid activated the lights on his 
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cruiser and pulled in behind the Jeep. The encounter that followed was recorded on the cruiser’s camera and on Eischeid’s 

body camera. Eventually, two more police officers arrived to 

provide backup.

A man and a woman exited the Jeep, and both reported having a verbal argument in the shopping center parking lot, but 

they denied the argument was physical. Both occupants provided officers with their names and birth dates, and police ran 

a records check. That check showed the female passenger had 

a history of drug-related convictions. Police asked the woman 

several times for permission to search her purse, and she consistently refused. She also told police that nothing in the Jeep 

belonged to her. The female passenger was eventually allowed 

to leave the scene.

Police were unable to locate any record for the name and 

birth date given by the male driver. A check of the Jeep’s 

license plate showed it was registered to Briggs, and the photograph of Briggs in the police database matched the male driver 

of the Jeep. The database also showed Briggs had gang connections, his Nebraska license was suspended, and he had outstanding arrest warrants. Briggs was arrested on the warrants, 

as well as driving on a suspended license and supplying false 

information to a police officer. Police asked Briggs for consent 

to search the Jeep, but he refused. Police also called for a “K-9 

unit,” but it never arrived.

2. Vehicle Search

After Briggs was arrested and placed in the police cruiser, 

two OPD officers searched the Jeep. On Eischeid’s body camera, he can be heard asking another officer if it was to be a 

“search incident to arrest,” and the other officer replied, “No, 

it’s an inventory search.”

Footage and audio from the police cameras shows the 

Jeep was full of property, including multiple phone chargers, 

electronics, a credit or debit card, a wallet, at least two sets 

of license plates, a pair of tennis shoes, a tablet computer, a 
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jacket and other clothing, and several suitcases. During the 

search, officers found a black bag which contained Briggs’ 

wallet, identification card, Social Security card, and several 

smaller bags containing suspected drugs. After the suspected 

drugs were found, one officer can be heard saying, “Well, 

there you go, there’s that felony you were waiting on, there 

it is.”

It is undisputed that officers did not create an inventory 

report of the property inside the Jeep. They did, however, 

prepare what they described alternatively as an “evidence 

report” or “property report,” listing the items seized as evidence, which included the black bag, the suspected drugs and 

drug paraphernalia, and a license plate. The suspected drugs 

later tested positive for cocaine and methamphetamine, and 

Briggs was charged with two counts of felony possession of 

a controlled substance. He moved to suppress the evidence 

found during the warrantless search of his Jeep, arguing it 

was obtained in violation of his rights under both the U.S. and 

Nebraska Constitutions. The State generally resisted the motion 

by asserting that OPD officers had conducted a proper inventory search. 1

3. Motion to Suppress

(a) Evidence

At the motion to suppress hearing, the State offered footage 

from Eischeid’s cruiser camera and body camera. That footage 

is generally consistent with the facts outlined above. The State 

also adduced testimony from two of the three officers involved 

in the search.

(i) Officer Eischeid

Eischeid generally described the facts as detailed above. 

He also testified that once police discovered there were 

1 See, e.g., State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019) 

(recognizing inventory search is exception to Fourth Amendment’s warrant 

requirement).
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active warrants for Briggs’ arrest, they handcuffed him and 

placed him in the cruiser. Eischeid testified that after Briggs 

was arrested, the plan was to impound the Jeep for safekeeping. The State did not ask Eischeid about OPD’s policy on 

impounding vehicles or conducting inventory searches.

On cross-examination, Eischeid admitted that after Briggs 

was arrested, Eischeid said to the other officer, “I get to search 

that car now, I can’t wait . . . .” Ultimately, however, Eischeid 

testified that he searched only the “armrest glove box” and 

front passenger areas of the Jeep, looking for keys. After that, 

he primarily stayed with Briggs while two other officers conducted a search of the Jeep. Eischeid admitted that when he 

looked in the glovebox, he saw a wallet with credit cards, debit 

cards, a gift card, and cash, but he did not prepare an inventory 

report of any items.

(ii) Officer Hansen

Officer Tyler Hansen arrived on the scene shortly after 

Eischeid, and Hansen was one of the officers who searched 

Briggs’ Jeep. The State asked Hansen the following questions 

about OPD’s policy on postarrest inventory searches:

Q. Okay. Does OPD have a policy on impounding 

vehicles and a search prior to impounding vehicles?

A. Uh, yes, when we take control of a vehicle to tow it 

to our impound lot we do an inventory search of it.

Q. Okay. And what’s the purpose of an inventory 

search?

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

vehicle or any dangerous substances or anything like that.

Q. Are there any policies about how you go about 

doing a search or documentation of that search?

A. Um, we just conduct a search and then if we find 

any high value items or anything we’ll book it into 

property.

Hansen testified the inventory search of Briggs’ Jeep was 

“conducted in accordance with OPD standard operating 
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procedures,” but the State did not ask Hansen what those 

procedures were, nor was a copy of the inventory search policy 

offered into evidence.

More specific details regarding OPD’s inventory search 

procedures were elicited on cross-examination, when defense 

counsel asked Hansen the following questions:

Q. Inventory searches are supposed to be conducted 

according to [OPD] policy, correct?

A. Yes.

Q. And there are only a few reasons why you can do an 

inventory search, right?

A. Yes.

Q. One of them being to catalog property prior to the 

vehicle being taken into police possession, correct?

A. Correct.

Q. To protect [OPD] from allegations of mishandling 

of property, correct?

A. Correct.

Q. To accurately track property in possession of [OPD]?

A. Correct.

Q. And those are the only reasons why, correct?

A. Yes.

. . . .

Q. Your manual specifically says these are not 

searches, correct?

A. Correct.

Q. You’re not supposed to be inventorying a vehicle to 

look for evidence of a crime, correct?

A. Correct.

Q. When choosing to do an inventory, you must do it 

thoroughly, right?

A. Yes.

Q. You are instructed that you must cover all areas of 

normal access in which property would reasonably be 

expected to be placed, correct?

A. Yes.
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Q. Including the front seats?

A. Correct.

Q. The back seats?

A. Yes.

Q. The glove compartment?

A. Yes.

Q. And the trunk?

A. Yes.

Q. There was a lot of property in that car, wasn’t there?

A. Yes.

Q. The car was packed to the brim, wasn’t it?

A. Yep.

Q. Stuff was even falling out of the back hatch when 

you opened it, right?

A. Correct.

. . . .

Q. Okay. When you inventory a car, you’re supposed to 

document all the property you find, right?

A. Any, yes.

Q. Again, the purpose is to protect [OPD] from saying 

anything was lost, stolen, or misplaced for your protection, correct?

A. Correct.

Q. So there must have been a long inventory log?

A. Uh, I don’t believe so.

Q. An inventory log is different than a property report, 

isn’t it?

A. I believe so.

Hansen agreed that the purpose of a property or evidence 

report “is to itemize . . . the evidence that was collected for 

purposes of trial,” while the “purpose[] of an inventory log 

[is] to protect [OPD] from being sued later if items are misplaced.” Hansen admitted he did not prepare an inventory log 

following the search of the Jeep, and he did not know whether 

any other officer did so. No inventory log was offered by 

the State.
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On redirect examination, the State asked Hansen whether 

“there [was] anything of true value” found during the search 

of the Jeep and he replied, “What we found [was] lots of bags 

of clothing and wigs.” When asked whether it was “feasible to 

document all property in this case,” Hansen responded that due 

to the amount of property in the Jeep, officers “just decided to 

document only the main — the high value important things.” 

On recross-examination, Hansen admitted that OPD’s policy 

manual on inventory searches states that officers are “supposed 

to inventory all property” and the manual “doesn’t mention 

anything [about] whether it’s valuable or not.”

(b) District Court Ruling

The district court overruled the motion to suppress. It found 

that OPD policy allowed officers to impound the Jeep for safekeeping because Briggs had been arrested and the Jeep was 

parked on private property. The court also found that once the 

decision was made to impound the Jeep, OPD policy authorized an inventory search to protect Briggs’ property and to 

protect police from false accusations that the property was not 

safeguarded. But the court made no express factual findings as 

to what OPD’s standardized procedures required, nor did the 

court make an express finding that officers complied with those 

procedures in conducting the search of Briggs’ Jeep.

The court did find that officers had not prepared an inventory log after searching the Jeep, and it acknowledged that 

“one would expect an inventory to be done.” But it found “the 

completion of an inventory [was] not necessary,” reasoning:

For the officers to go through a car that was “filled to the 

gills” and make an inventory of each of the various items 

in the car would be a waste of the time of the officers. As 

such, the officers, basically, decided [to] impound the car 

as is and any accusation by [Briggs] as to property missing would be meaningless as the officers considered all 

the property basically junk.
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Based on these factual findings, the court overruled the motion 

to suppress, concluding “the inventory search by the police 

officers [was] proper, reasonable, and not unconstitutional.”

4. Stipulated Trial 

and Sentencing

Following a stipulated bench trial at which Briggs preserved 

the motion to suppress, he was convicted of two counts of possession of a controlled substance. Briggs was sentenced to consecutive 30-month terms of probation. He filed a timely appeal, 

challenging only the denial of his motion to suppress.

5. Court of Appeals

Before the Court of Appeals, Briggs argued the district 

court erred in denying his motion to suppress. He advanced 

two theories for why the State could not rely on the inventory 

search exception: (1) officers failed to comply with OPD’s 

standardized inventory search procedures because they did not 

prepare an inventory report and (2) officers used the pretext of 

an inventory search to conduct a general search for incriminating evidence.

Addressing the first theory, the Court of Appeals noted 

officers had not prepared any inventory report after searching the Jeep, but it considered the evidence “not that clear” 2

as to what OPD’s procedures actually required concerning 

cataloging property found in an inventory search. Noting 

that Hansen’s testimony was the only evidence on this issue, 

the Court of Appeals was unsure whether OPD’s procedures 

required police to catalog all property found in the vehicle, 

or just all “high value” property. The Court of Appeals suggested the uncertainty in Hansen’s testimony could have been 

cleared up by offering the written policy, noting that “Briggs’ 

counsel referred to OPD’s ‘manual’ in questioning [Hansen] 

2 State v. Briggs, 28 Neb. App. 65, 81, 940 N.W.2d 582, 594 (2020).
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about OPD’s policies but, for whatever reason, did not offer 

OPD’s written policies into evidence or clarify if written policies existed.” 3 But, similar to the district court, the Court of 

Appeals did not squarely address what OPD’s inventory search 

procedures required or whether officers had complied with 

those procedures.

Instead, the Court of Appeals reasoned it was not necessary 

to decide whether OPD’s policy required police to inventory 

all property, or just all high value property, because “[e]ither 

way,” 4 the evidence showed no inventory report had been prepared. Noting that Briggs “[d]eem[ed] this a failure to comply 

with OPD’s stated policy,” 5 the Court of Appeals proceeded 

to consider whether, under our holding in State v. Nunez,

 6 the 

search could still be considered reasonable under the Fourth 

Amendment despite the failure to prepare an inventory.

Applying Nunez, the Court of Appeals framed the ultimate 

question in Briggs’ appeal as whether police used the inventory search as “simply pretext for a general rummaging by the 

police in order to discover incriminating evidence.” 7 To that 

question, the Court of Appeals understood the district court to 

have made a historical finding of fact that the failure to prepare 

an inventory log was not pretextual. It reviewed that finding 

for clear error, and it found none. It therefore affirmed the 

overruling of Briggs’ motion to suppress, but cautioned that the 

failure to prepare an inventory report pursuant to established 

procedures “could lead a future court to conclude that a search 

does not qualify as an inventory search.” 8

We granted Briggs’ timely petition for further review.

3 Id. at 78, 940 N.W.2d at 592.

4 Id. at 82, 940 N.W.2d at 594.

5 Id.

6 State v. Nunez, 299 Neb. 340, 907 N.W.2d 913 (2018).

7 Briggs, supra note 2, 28 Neb. App. at 83, 940 N.W.2d at 595.

8 Id. at 94, 940 N.W.2d at 601.
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II. ASSIGNMENT OF ERROR

On further review, Briggs broadly assigns that the Court 

of Appeals erred in affirming the denial of his motion 

to suppress.

III. STANDARD OF REVIEW

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

an appellate court applies a two-part standard of review. 9

Regarding historical facts, an appellate court reviews the trial 

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

law that an appellate court reviews independently of the trial 

court’s determination. 10

IV. ANALYSIS

[2-4] Both the Fourth Amendment to the U.S. Constitution 

and article I, § 7, of the Nebraska Constitution guarantee 

against unreasonable searches and seizures. 11 Searches without 

a valid warrant are per se unreasonable, subject only to a few 

specifically established and well-delineated exceptions. 12 The 

warrantless search exceptions Nebraska has recognized include: 

(1) searches undertaken with consent, (2) searches under exigent circumstances, (3) inventory searches, (4) searches of 

evidence in plain view, and (5) searches incident to a valid 

arrest. 13 In this case, the State relies exclusively on the inventory search exception to justify the warrantless search of the 

Jeep, and we limit our analysis accordingly.

9 State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020).

10 Id.

11 Garcia, supra note 1.

12 Id.

13 State v. Degarmo, 305 Neb. 680, 942 N.W.2d 217 (2020).
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1. Inventory Search Exception

[5,6] Both the U.S. Supreme Court and this court have 

consistently held that postarrest inventory searches are constitutionally permissible 14 and that the propriety of such searches 

is judged by the Fourth Amendment standard of reasonableness. 15 Inventory searches are considered reasonable because 

they serve at least three governmental caretaking functions 

unrelated to criminal investigation: (1) protecting the owner’s 

property while it remains in police custody, (2) protecting the 

police against claims that they lost or stole the property, and 

(3) protecting police from potential danger. 16

[7-9] It is widely recognized that “inventory searches conducted according to established policy are reasonable.” 17 We 

have consistently explained that the reason for requiring inventory searches to be regulated by standardized criteria is that

“an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The 

policy or practice governing inventory searches should be 

designed to produce an inventory. The individual police 

officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general 

means of discovering evidence of crime[.]’” 18

14 See, e.g., Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 

(1990); 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); Garcia, supra note 1; Nunez, supra note 6; 

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

242 Neb. 276, 494 N.W.2d 544 (1993).

15 Id.

16 See, Garcia, supra note 1; Nunez, supra note 6. Accord, Bertine, supra

note 14; Lafayette, supra note 14; Opperman, supra note 14; Newman, 

supra note 14; Filkin, supra note 14.

17 Nunez, supra note 6, 299 Neb. at 346, 907 N.W.2d at 917. Accord, Bertine, 

supra note 14; Lafayette, supra note 14; Opperman, supra note 14.

18 Newman, supra note 14, 250 Neb. at 238, 548 N.W.2d at 749, quoting 

Wells, supra note 14. See, also, Nunez, supra note 6; Filkin, supra note 14.
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[10] The particular procedures for conducting inventory 

searches are left largely to local law enforcement agencies, 19

but the U.S. Supreme Court has made clear that only “reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment.” 20 A reasonable inventory search policy has two key features: it must 

be designed to produce an inventory 21 and it must limit officer 

discretion regarding when and what to search. 22

[11,12] It is the State’s burden to show a search falls within 

the inventory search exception, 23 and a failure of proof on 

the State’s behalf “requires a finding that the search suffered 

from constitutional infirmities.” 24 The State can generally 

19 See Lafayette, supra note 14, 462 U.S. at 648 (noting Court was 

“hardly in a position to second-guess police departments” as to practical 

administrative methods that would best deter claims of theft). Accord, 

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, 454-55 (1990) (“it is 

appropriate to expect the police agency in the first instance to make a 

judgment about exactly what kind of routine is needed to serve those 

governmental interests in that particular locality”).

20 Bertine, supra note 14, 479 U.S. at 374. See Lafayette, supra note 14.

21 Wells, supra note 14; Bertine, supra note 14; Opperman, supra note 14; 

Nunez, supra note 6. See, also, Newman, supra note 14; Filkin, supra

note 14.

22 Wells, supra note 14, 495 U.S. at 8 (Brennan and Marshall, JJ., concurring) 

(recognizing inventory searches are reasonable under Fourth Amendment 

only if “done in accordance with standard procedures that limit the 

discretion of the police”); Opperman, supra note 14, 428 U.S. at 384 

(Powell, J., concurring) (explaining that in proper inventory search, “no 

significant discretion is placed in the hands of the individual officer: 

he [or she] usually has no choice as to the subject of the search or its 

scope”). See, also, Nunez, supra note 6; Newman, supra note 14; Filkin, 

supra note 14. Accord LaFave, supra note 19 at 461 (explaining that to be 

reasonable, regulations on inventory searches must “impose realistic limits 

on police discretion”).

23 Newman, supra note 14; Filkin, supra note 14.

24 Filkin, supra note 14, 242 Neb. at 284, 494 N.W.2d at 550.
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meet its burden by proving the search was conducted pursuant to reasonable standardized procedures governing inventory searches. 25 And while a written policy is recognized as 

the best means by which to prove the existence and requirements of a standardized procedure, there is no constitutional 

requirement that inventory procedures must be established 

in writing. 26 We have recognized that officer testimony can 

also “establish the existence of a standard procedure and 

[show] that the search was conducted in accordance with that 

procedure.” 27

[13] The State generally meets its burden of showing an 

inventory search was reasonable when it proves the search 

was governed by, and conducted in accordance with, standardized procedures. 28 But in Nunez, we generally agreed with the 

Eighth Circuit Court of Appeals that the failure to strictly follow standardized procedures does not automatically render an 

inventory search unreasonable per se. 29

Nunez explained that reasonableness under the Fourth 

Amendment cannot be fixed by per se rules; it must be determined by all the facts. 30 An inventory search conducted pursuant to standardized procedures is recognized as reasonable 

because it serves important governmental caretaking functions 

unrelated to criminal investigation 31 and ensures the search 

25 See Filkin, supra note 14.

26 Id. See, also, 3 Wayne R. LaFave, Search and Seizure, A Treatise on the 

Fourth Amendment § 7.4(a) (6th ed. 2020) (noting officer testimony of 

standard inventory search procedure can be sufficient, but better practice 

is to produce written policy).

27 Filkin, supra note 14, 242 Neb. at 285, 494 N.W.2d at 550.

28 See Filkin, supra note 14 (summarizing U.S. Supreme Court precedent 

as requiring that inventory searches, to be reasonable, must be conducted 

pursuant to standardized policies or established procedure).

29 Nunez, supra note 6.

30 Id.

31 See id.
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is not “‘“turned into ‘a purposeful and general means of discovering evidence of a crime.’”’” 32

[14] But Nunez held that the “failure to strictly follow 

established policy does not render an inventory search unconstitutional per se.” 33 Instead, when the evidence shows that 

officers failed to strictly follow standardized procedures, Nunez

instructs that a court should consider whether, despite the noncompliance, the inventory search was still reasonable under 

the Fourth Amendment. To make that determination, a court 

considers all of the facts surrounding the search, including the 

nature of the noncompliance, in order to determine whether 

the evidence suggests the search was designed to produce an 

inventory and satisfy the government’s caretaking function, or 

whether it instead “raise[s] an inference that the search was not 

designed to produce an inventory, but to discover incriminating evidence.” 34

On further review, Briggs argues the Court of Appeals misapplied the State’s burden of proof and impermissibly shifted 

that burden by suggesting defense counsel should have done 

more to clarify the content of OPD’s inventory search policy. 

Briggs also argues the Court of Appeals misapplied this court’s 

holding in Nunez.

 35 We find merit in both arguments.

2. State Failed to Meet 

Its Burden of Proof

The State offered surprisingly little evidence to support its 

contention that the search of Briggs’ Jeep was conducted pursuant to a standardized inventory search procedure and thus 

fell within the inventory search exception. The State did not 

32 Id. at 346, 907 N.W.2d at 918.

33 Id. at 348, 907 N.W.2d at 918, citing U.S. v. Rowland, 341 F.3d 774, 

780 (8th Cir. 2003) (“[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”).

34 Id. at 349, 907 N.W.2d at 919.

35 Nunez, supra note 6.
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offer or allude to a written inventory search policy, and when 

questioning Hansen, it adduced little more than conclusory 

statements that OPD had a standard policy, that the purpose of 

the policy was to “make sure there’s no high value items in the 

vehicle,” and that the search of Briggs’ Jeep was “conducted in 

accordance with” that policy.

On cross-examination, defense counsel questioned Hansen 

more directly about the specific details of OPD’s procedures, 

at times appearing to quote directly from OPD’s manual. On 

cross-examination, Hansen testified that OPD’s manual authorized inventory searches “to catalog property prior to the vehicle being taken into police possession” and “[t]o protect [OPD] 

from allegations of mishandling of property.” He testified that 

when conducting an inventory search, officers are instructed 

to be “thorough[]” and to “cover all areas of normal access in 

which property would reasonably be expected to be placed.” 

He further testified that OPD’s policy manual says officers 

are “supposed to inventory all property” and “doesn’t mention 

anything [about] whether it’s valuable or not.”

Considered in its entirety, Hansen’s testimony may have 

been sufficient to show that OPD has adopted standardized 

procedures to govern inventory searches, but it failed to establish what those procedures were. Hansen’s testimony was 

the only evidence regarding the content of OPD’s standardized procedures, and we agree with the Court of Appeals that 

his testimony was, at best, equivocal on what those procedures required.

Specifically, it was unclear from the evidence whether 

OPD’s procedures require officers to catalog all property 

found in a vehicle, or just “high value” property. Clarity on 

this issue was important because if OPD’s procedures require 

that all property be cataloged, the failure to prepare an inventory report would show noncompliance. But the failure to 

prepare an inventory would not necessarily show noncompliance if OPD’s procedures required that only “high value” 

property be cataloged and officers found no such property. We 
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express no opinion on whether a policy that does not require 

all property to be listed on the inventory report could satisfy 

constitutional requirements, 36 because that question is not 

before us. 37 Actually, the State’s failure to prove what OPD’s 

standardized procedures required makes it difficult to reach 

any conclusion about whether those procedures met constitutional requirements.

We pause here to address Briggs’ argument that the Court 

of Appeals impermissibly shifted the burden of proof by suggesting the defense should have offered OPD’s manual into 

evidence to clear up the confusion as to what it required. We 

do not understand the Court of Appeals to have shifted the 

burden. But to the extent its opinion can be read to suggest 

that Briggs should have offered evidence to clarify the requirements of OPD’s policy, we expressly disapprove of such a 

reading. It is the State’s burden to prove an inventory search 

was conducted pursuant to standardized procedures, 38 and the 

State alone bears responsibility for meeting, or not meeting, 

that burden.

Here, even after the defense inquired into specific provisions 

of OPD’s inventory search policy on cross-examination, the 

State appears to have treated the contents of OPD’s policy as a 

well-kept secret. It made no effort to clarify the requirements 

of OPD’s procedures or to show that officers complied with 

those procedures. Instead, the State’s questioning of Hansen 

focused on why, after searching the Jeep and seizing several 

items of incriminating evidence, Hansen decided not to prepare any inventory report at all. But the State made no effort 

to tie the officers’ decision to anything in OPD’s standardized procedures.

36 See cases cited supra notes 21 and 22.

37 But see Filkin, supra note 14, 242 Neb. at 283, 494 N.W.2d at 550 

(suggesting that “‘no standard for the scope of the inventory other than 

the listing of every item of property would satisfy the relevant governmen

tal interests’”).

38 Filkin, supra note 14.
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Because it was not possible, on the evidence adduced, to 

determine whether the search in this case conformed to OPD’s 

standardized procedures governing inventory searches, the 

State failed to meet its burden to show the search fell within 

the inventory search exception. 39 On this record, the district 

court should have found the search suffered from constitutional 

infirmities 40 and granted Briggs’ motion to suppress.

But rather than granting the motion to suppress, the district 

court made several factual findings about the reason there was 

no inventory report and, based on those findings, concluded 

the search was “proper, reasonable, and not unconstitutional.” 

Because the Court of Appeals relied on those factual findings in its analysis, we address them too and find they were 

clearly erroneous.

2. Trial Court’s Factual Findings 

Were Clearly Erroneous

The district court made several related factual findings as 

to why, after searching Briggs’ Jeep, officers failed to prepare 

an inventory report. It found that officers discovered “nothing of value” in the Jeep; it found “the completion of an 

39 See, State v. Neely, 236 Neb. 527, 462 N.W.2d 105 (1990) (singlejudge opinion) (holding where State failed to adduce evidence that any 

standardized procedures were followed, inventory search exception did 

not apply even assuming search was conducted for inventory purposes), 

abrogated on other grounds, State v. Rocha, 295 Neb. 716, 890 N.W.2d 

178 (2017); State v. Ray, 9 Neb. App. 183, 609 N.W.2d 390 (2000) 

(holding evidence which shows only that standard policy exists, without 

establishing what procedures were, is inadequate to meet State’s burden of 

proving that inventory search exception applies). Accord, United States v. 

Duguay, 93 F.3d 346 (7th Cir. 1996) (holding conflicting officer testimony 

as to requirements of highway patrol’s impoundment policy resulted in 

failure to prove inventory search was governed by standardized criteria). 

See, also, Wells, supra note 14, 495 U.S. at 5 (explaining that absent 

evidence showing standardized procedure authorized opening of closed 

containers, search in which officers did so was “not sufficiently regulated 

to satisfy the Fourth Amendment”).

40 See Filkin, supra note 14.
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inventory [was] not necessary” because the Jeep was “‘filled 

to the gills’” and all of the property was “basically junk”; and 

it found it would have been a “waste of the [officers’] time” to 

prepare an inventory.

We struggle with how to construe these factual findings in 

our Fourth Amendment analysis, and it appears the Court of 

Appeals did too. The findings could arguably be construed to 

suggest the trial court believed that officers generally complied 

with OPD’s procedures and that such procedures required only 

that “high value” property be listed on the inventory report. 

The findings could also arguably be construed to suggest, as 

the Court of Appeals concluded, that the trial court implicitly 

found the officers had no pretextual motive for conducting the 

inventory search despite the failure to prepare an inventory 

report. Or, given the absence of sufficient evidence showing 

what OPD’s procedures actually required, it is possible these 

findings reflect nothing more than the trial court’s assumptions 

about what a reasonable policy would require under the circumstances. But regardless of how the district court’s findings 

are construed, they were clearly erroneous and thus did not 

support the court’s legal conclusion that the inventory search 

was “proper, reasonable, and not unconstitutional.”

[15] In determining whether a trial court’s findings of historical fact are clearly erroneous, an appellate court does not 

reweigh the evidence or resolve conflicts in the evidence, 

but, rather, recognizes the trial court as the finder of fact and 

takes into consideration that it observed the witnesses. 41 Even 

under this deferential standard, we find the district court’s factual findings, as they regard the need to prepare an inventory 

report, to be clearly erroneous.

First, the finding that there was “nothing of value” in 

the Jeep finds no support in the record. No officer testified 

41 See, Newman, supra note 14; State v. DeGroat, 244 Neb. 764, 508 N.W.2d 

861 (1993).
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the items had no value; instead, when Hansen was asked 

whether “there [was] anything of true value” found in the 

Jeep, he replied, “What we found [was] lots of bags of clothing and wigs.” Even if this testimony can be fairly understood 

to imply there was nothing of value in the Jeep, such a finding 

cannot be reconciled with the video evidence in our record. 

The police camera footage does not show all of the property 

in the Jeep, but it does show a wallet, a jacket, tennis shoes, 

a tablet computer, phone chargers, and numerous suitcases. 

And Eischeid admitted that when he opened the center console, he saw credit cards, debit cards, a gift card, and cash. 

Given this uncontroverted evidence, the district court’s factual finding that there were no items of value in the Jeep was 

clearly erroneous.

We also find clear error in the district court’s findings that 

“the completion of an inventory is not necessary” or that it 

would be a “waste of . . . time” to prepare an inventory if, 

after completing the search, officers decide “all . . . the property [was] basically junk.” Again, the record contains no evidence to support such a finding. There was no evidence that 

OPD’s standardized procedures recognize any circumstance 

under which officers have broad discretion to forgo preparing 

any inventory report after conducting a search. And even if 

such a policy had been proved, we are not persuaded it could 

pass constitutional muster. To satisfy the Fourth Amendment, 

“‘“[t]he policy or practice governing inventory searches should 

be designed to produce an inventory”’” 42 and to limit officer discretion. 43

Thus, no matter how we construe the district court’s findings as to why an inventory report was not necessary, the 

findings were clearly erroneous on this record. The Court 

42 Newman, supra note 14, 250 Neb. at 238, 548 N.W.2d at 749, quoting 

Wells, supra note 14. See, also, Nunez, supra note 6; Filkin, supra note 14.

43 See cases cited supra notes 21 and 22.
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of Appeals should have found as much, and it should have 

proceeded to independently review the trial court’s ultimate 

determination that the search was “proper, reasonable, and not 

unconstitutional.” 44 Had it done so, it would have reversed, 

concluding that the State failed to meet its burden of proving 

the search fell within the inventory search exception.

Instead, because it understood the trial court to have made 

a factual finding that the officers did not have a pretextual 

motive in performing the search, the Court of Appeals framed 

the ultimate question in this appeal as whether, under Nunez, 

the search was still reasonable. On further review, Briggs 

argues generally that the Court of Appeals misapplied Nunez to 

this case. As we explain next, we agree.

3. State v. Nunez Inapplicable

As stated earlier, Nunez held that the “failure to strictly 

follow established policy does not render an inventory search 

unconstitutional per se.” 45 Nunez applies when the evidence 

shows officers failed to strictly follow established policy, 

and the case provides a framework for analyzing whether, 

despite errors in following the established policy, an inventory 

search can still be considered reasonable under the Fourth 

Amendment.

Here, the State failed to prove both the contents of OPD’s 

inventory search policy and that officers conformed their conduct to that policy when searching Briggs’ Jeep. That failure 

of proof conclusively answered the question whether the State 

could rely on the inventory search exception. 46 There was no 

need to consider Nunez.

Moreover, while it makes logical sense to assume that 

the complete failure to prepare an inventory report would 

44 See Saitta, supra note 9.

45 Nunez, supra note 6, 299 Neb. 348, 907 N.W.2d at 918.

46 See, Filkin, supra note 14; Neely, supra note 39; Ray, supra note 39. 

Accord Wells, supra note 14.
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not comply with any reasonable standardized procedure, 47

the State’s failure to prove what OPD’s standardized procedures actually required made any meaningful analysis under 

Nunez impossible. Simply put, the constitutional reasonableness analysis required by Nunez cannot be performed where, 

as here, the State has not shown what the standardized procedures required and the extent of the officers’ noncompliance 

remains unknown.

Given the State’s failure to meet its burden of proof, the 

Court of Appeals did not have a record which permitted it to 

perform the constitutional reasonableness analysis required by 

Nunez. We thus agree with Briggs that Nunez was misapplied 

in this case.

V. CONCLUSION

Because it was not possible, on the evidence adduced, 

to determine whether the search in this case was conducted 

in conformity with OPD’s standardized procedures governing inventory searches, the State failed to meet its burden to 

show the search fell within the inventory search exception. We 

reverse the decision of the Court of Appeals and remand the 

cause with directions for that court to reverse the judgment of 

the district court and to remand the cause to the district court 

with directions to grant the motion to suppress.

Reversed and remanded with directions.

47 See Filkin, supra note 14, 242 Neb. at 283, 494 N.W.2d at 550 (suggesting 

“‘no standard for the scope of the inventory other than the listing of every 

item of property would satisfy the relevant governmental interests’”).