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'There's that felony you were waiting on': State high court throws out Omaha police search

'There's that felony you were waiting on': State high court throws out Omaha police search

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Omaha police officers responding to reports of an altercation between a Bellevue man and woman found an SUV filled to the brim with mostly junk — several suitcases, bags of clothing and wigs, phone chargers, old license plates, a jacket.

They asked the driver for permission to search it. He refused. They called for a drug-sniffing dog to come search the Jeep Grand Cherokee near 50th and L Streets, but none showed up.

So they arrested the driver on outstanding warrants and searched the vehicle under the assertion that they were impounding it and, as such, needed to inventory its contents.

At one point, one of the officers searching the vehicle found small amounts of cocaine and methamphetamine and called out: “Well, there you go, there’s that felony you were waiting on! There it is!”

In a decision Friday, the Nebraska Supreme Court threw out the search, ruling it unconstitutional. In turn, felony drug charges will be dropped against Maurice L. Briggs, the subject of the illegal search, said his attorney, Assistant Public Defender Bethany Stensrud.

Under the Fourth Amendment to the U.S. Constitution, officers must establish probable cause that a crime has been committed before they conduct a search. There are limited exceptions to that law, including when officers receive permission to search or when they are inventorying a vehicle before impoundment.

In Briggs’ case, his attorneys, Stensrud and Douglas County Public Defender Tom Riley, argued that the inventory search was nothing more than a fishing expedition. Stensrud pointed out that officers failed to follow Omaha police policy that requires them to log each item.

Stensrud said attorneys in the Public Defender’s Office hope this decision curtails what she called Omaha police’s increasing use of inventory searches. Stensrud said she plans to ask a judge to dismiss a search of another client based on Friday’s ruling.

“It’s our belief that the problem has become systemic within Omaha police, to use an inventory search to look for guns and drugs and evidence of crime,” Stensrud said.

Omaha Police Lt. Sherie Thomas, a police spokeswoman, said Monday that no one in Omaha police command staff has received reports that officers are increasingly conducting inventory searches. She said police adjust their training in consultation with the Douglas County Attorney’s Office and welcome feedback from the Public Defender’s Office.

“We are not aware of any ‘systemic’ problem relating to vehicle inventories and this is the first time this issue has been brought to our attention,” Thomas said in a statement. “We will review our policies and procedures, as it relates to this case, as well as the investigative measures taken by the officers, and make any needed changes to make sure issues noted by the court are addressed.”

According to the case file: An Omaha police officer testified that officers arrested Briggs, who had a felony record, on outstanding warrants and driving on a suspended license and placed him in the back of a cruiser. After Briggs refused to give permission to search the SUV — and officers couldn’t summon an Omaha police drug-sniffing dog — Officer Joe Eischeid decided to impound the vehicle and conduct an inventory search.

During a pretrial hearing, Eischeid admitted that he told another officer on scene: “I get to search that car now. I can’t wait.”

In the course of the search, officers found small amounts of cocaine and methamphetamine. Briggs was charged with two felony counts of drug possession.

Stensrud challenged the inventory search as unconstitutional. She noted that officers didn’t file an inventory as required under department policy and case law. During a hearing over the matter, Officer Tyler Hansen, who also was present for the search, said the search was “conducted in accordance with OPD standard operating procedure.” Such inventories are designed to protect police against car owners who retrieve their vehicle and assert that something is missing.

Stensrud asked Hansen: “Your manual specifically says these are not searches, correct? You’re not supposed to be inventorying a vehicle to look for evidence of a crime, correct?”

Hansen: “Correct.”

The high court’s ruling doesn’t outlaw such inventory searches, nor does it assert that prosecutors can never bring charges based on such searches. But it does serve notice that police departments have to, at a minimum, follow their own policies and procedures, such as filing full inventory reports after they search.

The Nebraska Supreme Court’s ruling overturned decisions by Douglas County District Judge Peter Bataillon and the Nebraska Court of Appeals that upheld the search.

Stensrud said Briggs, 45, was “stoked” by the ruling. He had been placed on probation after being wrongfully convicted of the drug possession. Briggs has completed drug treatment and is now gainfully employed, she said.

“It was a really good win,” Stensrud said.

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Reporter - Courts

Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.

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