NV: Failure to complete inventory after finding gun in plain view was reasonable

The officer’s failure to complete the inventory after finding a gun in plain view and seizing it was reasonable under the circumstances. Jim v. State, 137 Nev. Adv. Op. 57, 2021 Nev. LEXIS 59 (Sept. 23, 2021):

Applying this standard, this court has held that without a sufficiently complete inventory of the subject vehicle or item searched, the officer failed to comply with the applicable department inventory procedures, rendering the inventory warrant exception inapplicable. State v. Greenwald, 109 Nev. 808, 810-11, 858 P.2d 36, 38 (1993) (“Without an inventory, we can have no inventory search.”); see also State v. Nye, 136 Nev. 421, 423-24 468 P.3d 369, 371-72 (2020); Weintraub, 110 Nev. at 289, 871 P.2d at 340. To wit, in State v. Nye, this court held that the inventory search was invalid because the officer only listed “bag” on the inventory log instead of listing the items in the bag, as was required under the policy. Id. at 424, 468 P.3d at 372-73. The booking officer further failed to comply with department policy by not conducting the search in view of a camera, signing the inventory receipt, or testifying as to how the search was conducted. Id. at 424, 468 P.3d at 373.

While an officer’s failure to complete an inventory per department policy may foreclose the inventory warrant exception, such a failure does not per se establish that an officer’s motive for beginning an inventory was a subterfuge. See Wells, 495 U.S. at 4 (“(Alin inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.”); United States v. Garay, 938 F.3d 1108, 1111-12 (9th Cir. 2019) (noting that an inventory search is valid if the search motive is administrative and holding that officers’ failure to create an inventory sheet did not render the search motive as pretextual). And, unlike Nye where the searching officer strayed far afield from the applicable inventory policy, Shelley complied with the EPD policy for impounded vehicles when he entered the Impala to inventory its contents, which he had a legal right and obligation to do. See Collins v. State, 113 Nev. 1177, 1181, 946 P.2d 1055, 1059 (1997) (holding that an officer has a “right and obligation” to enter a vehicle to inventory its items for safekeeping). While lawfully present in the vehicle to conduct a standard inventory—to that point pursuant to and consistent with EPD policy—Shelley saw the firearm and bags of a crystalline-like substance in plain view between the driver’s side seat and center console, and he immediately recognized those items as contraband based on his law-enforcement training. Shelley then changed course and followed the applicable EPD policy for vehicles with evidentiary value by halting his search, following the Impala to the police garage, directing Checketts to secure the vehicle with evidence tape, and seeking a search warrant. Shelley very well could have continued and completed the inventory search at that time, thus inevitably discovering all of the items that EPD eventually recovered under the warrant. Instead, Shelley halted the search and sought and obtained a search warrant, consistent with the Fourth Amendment.

Jim further argues that Shelley failed to comply with EPD policies by not having the Impala secured with evidence tape until after the vehicle was towed to the police garage. But this is beside the point—Shelley’s alleged deviation from the policy was slight and does not show that his search motive was pretextual because Shelley did not continue his search at the scene. Indeed, EPD did not recover further incriminating evidence before Checketts secured the vehicle with evidence tape and Miller obtained and eventually executed a search warrant.