NE: State failed in its burden of proof on inventory; the defense has no duty to clear up confusion in the proof

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.

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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.