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State v. Nunez

Supreme Court of Nebraska

March 16, 2018

State of Nebraska, appellee,
v.
Mark P. Nunez, appellant.

         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.

         [299 Neb. 341] 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: John E. Samson, Judge. Affirmed.

          Sean M. Conway and Kate O. Rahel, of Dornan, Troia. Howard, Breitkreutz & Conway, PC, L.L.O., for appellant.

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

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

          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 Search

         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 [299 Neb. 342] 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 ...


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