The state carried the burden, and it failed to prove that the inventory of defendant’s vehicle followed standardized procedure or was reasonable. The defense had no burden to clear up any evidentiary confusion because the state had the burden. State v. Briggs, 308 Neb. 84 (Jan. 8, 2021):
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 search was conducted pursuant to reasonable standardized procedures governing inventory searches. 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. 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.”
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. 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.
. . .
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 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 express no opinion on whether a policy that does not require all property to be listed on the inventory report could satisfy constitutional requirements, because that question is not before us. 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, and the State alone bears responsibility for meeting, or not meeting, that burden.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)