State v. Havlat

of interest possibility of conflict union and international bargaining collective independent prevent which could regional Sawyer international decision. is support the CIR’s duties, employee as His for both locals. representative IBEW, assisting negotiation unions include local cases, contracts, investigating handling arbitration by president. international interunion matters as directed assisting unions specifically include local His functions bargaining strategy. potential for a conflict developing under circumstances. apparent interest these IBEW, by are chartered Both Local and Local 1536 constitution, in the participate governed the IBEW delegates. The through their elected international convention only adopt bylaws governing their affairs locals are allowed to Similarly, IBEW. a member who desires to approval with have approval transfer one local to another must from from organization. provides international The IBEW constitution its work for that “No L.U. shall allow members to union] [local W., difficulty any L.U. any employer in other of the I.B.E. with president] recognized has such providing the I.P. [international difficulty.” amply international union is Control record demonstrated in the of this case. CIR

The decision of the is affirmed.

Affirmed. appellant. Terry Havlat, Nebraska, appellee, v. State 385N.W.2d April 25, Filed No. 85-374. 1986. Jr., Naylor, appellant. Kirk E. for General, Schaaf, Attorney Terry R. Spire,

Robert M. and appellee. Boslaugh, Hastings, Caporale, Krivosha, C.J., and and Retired. Shanahan, Grant, Colwell, JJ., D.J., D.J., Retired. Colwell,

Defendant, Havlat, Terry conviction appeals his substance, Rev. manufacturing marijuana. a controlled Neb. marijuana 28-416(l)(a) (Cum. Supp. 1984). Stat. The was § growing during in rural search. area when seized a warrantless Penal Havlat was sentenced to 20 to 40 months in the Nebraska $1,000. Complex and Correctional fined July Roy Dean On while Officers Svoboda and making Heiden of the a low-level Nebraska State Patrol were photographic investigative flight parts air over of Seward Nebraska, County, searching growths for unlawful they marijuana, marijuana plants on suspected observed 250-acre farm later determined to be owned Lumir Havlat, parents. Valerie the defendant’s The grain farm was a operation and livestock of Lumir and defendant under an oral agreement having general terms that the defendant described as partnership. The owners lived in the The property farmhouse. fenced, gates posted against with its trespassers. closed July Billy

On 28 Officers Heiden and Hobbs of the State Patrol entered through public the farm a fence from a road at a point They distant from the buildings. farm did not have a search warrant. The officers patches discovered four growing marijuana, one-quarter located more than mile from the farm buildings,,near a small creek through that meandered the farm. heavy growth trees, There was a underbrush, creek; weeds on each side of the marijuana could not be seen hay from the road. A field and nearby. milo field were term The “manufacture” cultivating marijuana. includes Neb. Rev. 28-401(22) (Cum. Stat. Supp. 1984). ground marijuana around the plants disturbed, had been and the weeds had been eradicated. garden-type Plastic hoses ran from the creek the plants, conveying pumped water from the creek small, gasoline-powered pump from which the defendant’s palm print was later taken and identified. Havlat testified that he recently had used the pump to clean out a cistern on the farm.

Patrol officers continued investigation by their succeeding warrantless July intrusions on 2, 4, 5, 29 and August and 1983. In evening the late August the officers arrested Havlat when appeared he at the growing following area. The day, the officers pounds seized 600 marijuana plants. A subsequent search of the defendant’s home garage and Milford, Nebraska, pursuant warrant, to a search produced two trays, seed-starter marijuana seeds, and other marijuana miscellaneous paraphernalia, not described since this evidence was suppressed later at the close of the trial. February

On 22,1984, the granted trial court the defendant’s pretrial motion suppress evidence seized in the warrantless single judge search. A of this court reversed the order in the State’s interlocutory appeal, provided as in Neb. Rev. Stat. 29-824(Cum. Supp. 1984). Havlat, § State v. 217 Neb. Later, court, motion, (1984). N.W.2d 86 the trial on its own evidence, again suppressed again the same and order was that Havlat, interlocutory appeal. reversed in an State v. 218 Neb. 602, 357 (1984). N.W.2d 464 trial,

Prior the State dismissed count II of the indictment charging with conspiracy 28-416(l)(a), Havlat to violate § Havlat right jury executed written waiver of his trial. At trial the evidence seized in the warrantless search was admitted over objection. the defendant’s At the conclusion of the evidence, judge complete the findings trial made and detailed concerning thereof, charged, the crime the elements the proof. findings State’s burden The trial court also made with regard testimony to the supported of witnesses which the State’s proof, burden of the circumstantial nature of some of the force, probative evidence and its and the fact that the land was under specifically the defendant’s control. court noted The suppressed evidence seized at home defendant’s pursuant disregarded. to a search warrant court then cultivating marijuana found guilty Havlat in violation of 28-416(l)(a). § error, assignment

In his first Havlat contends single judge of this court erred when he twice reversed suppressing district court’s orders search warrantless evidence and that the trial erred when it court admitted this evidence over suppress. the defendant’s motion to Havlat claims that evidence was seized violation state and provisions guaranteeing right federal constitutional to be argument free from unreasonable searches and seizures. His I, directed to first-impression question of whether article Constitution, right guaranteeing Nebraska to be seizures, free from unreasonable have a searches should broader interpretation than the fourth counterpart, its federal Constitution, amendment to the U.S. it to applying when fact “open scenarios considered under doctrine.” fields urges Defendant a broad because separate state standard agrarian by Nebraska large is an state dominated areas of farm operations, and ranch land should the businesses within which protection buildings be accorded the same as those enclosed in or walls. open field not an “effect”

The State counters that an is I, meaning within the of either the fourth amendment or article 7, were, open if it warrantless entries into fields are and even legitimate expectation privacy still reasonable because no open exists in activities conducted in the fields. What is “reasonable,” posits, by the State is to be measured not subjective expectations parties objective but an test of society legitimate privacy what considers a interest which argues protection. warrants constitutional The State also proper pursuant the officers’ actions were to Neb. Rev. Stat. § (Reissue 28-429(l)(d) 1979), specifically permits law property enforcement officers to enter onto without a search purpose locating eradicating warrant or consent for the wild or illicit weeds from which a controlled substance could be extracted. Supreme open

The U.S. Court first articulated the fields States, 57, 59, doctrine in Hester United v. 265 U.S. 44 S. Ct. L. Ed. (1924): special protection accorded “[T]he by the people ‘persons, Fourth Amendment to the in their ’ houses, papers, effects, open is not extended to the fields.” Forty-three years later, telephone-booth electronic case, surveillance the same Court declared that the “Fourth protects Amendment people, places.” (Emphasis supplied.) States, 347, 351, v. United 389 U.S. 88 S. Ct. 19 L. Katz Ed. 2d 576 (1967).

Recently, the Supreme U.S. Court reaffirmed the Hester States, open fields doctrine in Oliver v. United 466 U.S. Oliver, 104 S. Ct. 80 L. Ed. 2d 214 (1984). The facts in intrusions, except for the successive were similar to the facts us, including before trespass warrantless in a rural area enclosed no-trespassing signs. fence and with posted that, Katz, Oliver Court held since the touchstone of fourth analysis amendment question has been the person whether a constitutionally protected, has a reasonable privacy. merely subjective expectation This is not privacy but, rather, only expectations society includes those prepared recognize words, as reasonable —in other objective premise, test of reasonableness. Based this open Oliver Court fields concluded that the doctrine of Hester

[559] validity retained holding its and was consistent with the in Katz. Further, single

No factor determines whether an individual legitimately may claim under the Fourth Amendment place government be should free of intrusion not authorized warrant. assessing [Citation omitted.] degree infringes upon the to which a search individual privacy, given the has weight Court to such as factors intention of the Framers of the Fourth Amendment omitted], the uses to put which individual has [citation omitted], a location and our societal [citation understanding that certain areas deserve the most scrupulous protection government from invasion [citation These factors are equally relevant omitted]. determining government’s whether the upon intrusion open probable fields without warrant or cause violates expectations privacy reasonable and is therefore a proscribed search the Amendment.

. . [OJpen provide . setting fields do not for those intimate activities that is Amendment intended to government shelter from interference or surveillance. There nois societal interest in protecting privacy activities, those such as the crops, cultivation of that occur open Moreover, in fields. practical as a matter these lands usually public police are accessible to the ways in home, office, that a an or commercial structure would not generally It not be. is true that Trespassing” fences or “No signs effectively public viewing bar the open from fields reasons, rural areas... these .For asserted expectation privacy open not fields is “society recognizes as reasonable.”

466 at U.S. 177-79. concluding probable

While that neither cause nor a warrant required police open fields, is to effect searches of the Court emphasized protect that the fourth amendment continues to open might other activities fields which involve an privacy. individual’s

Although may greater impose a state restrictions on law, a state constitutional activity matter of as a

police federal practices police governing higher standards may impose 714, Ct. Hass, U.S. 95 S. See, Oregon v. law. of state basis U.S. California, 386 Cooper v. (1975); L. Ed. 2d 570 U.S. reh’g denied 386 788, 17 (1967), 2d 730 L. Ed. Ct. 87 S. 2d 243. L. Ed. Ct. 87 S. specific question addressed previously has not This court Constitution, I, 7, of the Nebraska whether article amendment, greater affords identically to the fourth phrased and seizures searches against governmental protection counterpart. federal than does its involving open fields 376, 307 N.W.2d 209 Neb. Cemper, v. Our decision State the federal amendment to the fourth (1981), based on 820 employee Cemper, an Constitution, merely anticipated Oliver. manufacturing marijuana. lessee, convicted of a farm was of right to claim although under We held that Katz upon whether a depended amendment protection of the fourth in the invaded privacy of legitimate expectation person had Hester remained open fields doctrine of nevertheless the place, rights (or in ownership possessory or Evidence of applicable. determining the a factor in thereof) the lack Cemper, Further, privacy. legitimate expectation of be difficult to state it would In the rural areas of this person would believe that no a landowner who would find Hunters, permission. without open field enter on his so fishermen, trespassers are and other technical that a commonly rural areas of this state expected in the regarded by many signs is post trespassing failure to enter. implied permission almost an persons as 381-82, 307 N.W.2d at 823. Cemper, supra at Constitution, we hold to the Nebraska Applying Cemper I, 7, of article person’s capacity protection to claim the § that a unreasonable searches the Nebraska Constitution as to of seizures, to the U.S. counterpart, like its the fourth amendment Constitution, person who claims depends upon whether the in the legitimate expectation privacy of protection such has a Further, v. open fields doctrine of Hester place. invaded 57, 445, States, (1924), 44 L. Ed. 265 U.S. S. Ct. United under our Constitution. applicable Nowhere our independent research of the state constitutional we find conventions do evidence that the framers explicit I, encompass language intended the article § 93-96; says. See, more than it 2 Proc. Const. Conv. what Proc. Conv. Const. 88-90. argument There is merit in agrarian no that Nebraska’s economy requires interpretation I, 7, a broader of article the state contrary, Constitution. To the we note that a vast majority states, of the 50 regardless population, large have areas of farming, ranching, land devoted to mining, and tree production. doctrine,

Concerning open fields our state Constitution does not afford more protection than does the fourth amendment to federal interpreted Constitution as in Oliver States, 170, 104 v. United 466 U.S. S. Ct. 80 L. Ed. 2d 214 (1984), and judicially higher we decline impose standards governing law provisions enforcement officers under the state Constitution. Without a further recitation the rationale set forth majority Oliver, persuasive we find reasons advanced in concluding Oliver that no protection constitutional attaches to Havlat’s activities .occurring fields, open in the had legitimate Havlat no privacy here, under the police facts and that could enter and search open probable field without cause a search warrant.

Accordingly, assignment Havlat’s of first error is without merit. The trial court did err when it admitted evidence at during trial seized a warrantless search property, of Havlat’s single judge who ruled on interlocutory the State’s reversing motions was correct in the trial court’s order suppressing the evidence.

As second assignment error, Havlat’s of he claims that deciding trial court erred in guilt Havlat’s on the basis of Witmuss, testimonial evidence of one Kenneth Jr. Havlat evidence, trial, claims that wholly lacking this admitted at probative relevance in due to lay value the State’s failure to adequate foundation. The defendant and been Witmuss had friendly years prior several to 1983. Witmuss had visited farm, Havlat at home pair his and at had traveled 562 had Witmuss California, to 1982 and from 1979

together to by the defendant. employed part-time mechanic been a testimony circumstantial. undisputed that Witmuss’ It is “ evidence is defined as the attendant facts and ‘Circumstantial may principal be inferred from which a fact circumstances ” Betts, State v. reasoning....’ 210 Neb. processes of the usual 348, 350, 257, (1982). 258 314 N.W.2d variety may have of the wide facts

Because value, admitting courts are liberal in probative circumstantial appear degree to have some such evidence of facts to the matters in issue. Much discretion is left to the relevance rulings judge, and or her will be sustained if the trial his controversy did evidence admitted tends to show that a fact See, Torcía, 1 Evidence or did not exist. C. Wharton’s Criminal 29 Am. Jur. 2d Evidence (13th 1972); (1967). ed. § Further, judge the trial has wide discretion in the determination foundation, is, evidence, connecting qualifying or “ admissible, invariably order to be evidence need not [i]n appear proffered.” to be relevant at time when it is S. Gard, (6th Jones on Evidence and 4:60 at 512 ed. 1972). 4:59 §§ jury, presumed

When a case is tried to the court without a it is only competent that the trial court considered and relevant Tomes, its decision. State v. reaching evidence in 218 Neb. (1984). 352 N. W.2d 608 This court will not reverse a trial court’s material, when competent, decision there is otherwise sufficient Id. evidence judgment. and relevant to sustain the long-standing determining rule in this state is that sufficiency of the evidence to in a sustain conviction criminal prosecution, this court does not resolve conflicts evidence, witnesses, pass upon credibility determine plausibility explanations, weigh the evidence. Such fact, are matters for the trier of and its verdict be must sustained if, taking State, the view most favorable to there is sufficient True, it. State v. support evidence to 210 Neb. 316 N.W.2d Thaden, State v. (1982); 210 Neb. 316 N.W.2d 317 Meadows, (1982); State v. 203 Neb. 277 N.W.2d 707 (1979).

Havlat claims that the trial court erred when it admitted testimony objections foundation, certain over Witmuss relevancy, probative and lack of value. Witmuss testified gave marijuana him on one occasion in 1983 the defendant he, Havlat, grain garage in the on the took from a sack Havlat, Witmuss and relationship farm. From the known general testimony, evidence in the nature of the and other record, judge it was within the discretion of the trial to admit connecting on the the evidence of later foundation. testified, provided. subsequently Such was not Witmuss objection, without that the defendant had once mentioned the growing marijuana. object Defendant did to further similar overruled, testimony, although objection was that line However, succeeding questioning ended. foundation time, evidence established that the conversation was remote in having prior occurred In each of sometime to 1981. these connecting instances where either the evidence was not provided destroyed relevancy or other evidence evidence, subject being such was to stricken. Havlat made no event, error, any there no motion strike. was because marijuana given Havlat himself later testified that he had affected, right No of the defendant was Witmuss. substantial presumed judge disregarded and it that the trial the evidence. testifying Havlat’s main concern relates to Witmuss’ over arrest, objection prior that in the winter to defendant’s he and irrigation systems. had talked about Witmuss the defendant installing expressed drip an interest in stated that Havlat farm, say irrigation system his but Havlat did not that he time, watering marijuana. place, planned to use it for sufficiently surrounding this conversation were circumstances found, testimony provided provided. As trial court having probative evidence value thread of circumstantial marijuana. relating cultivating to the issue of There was no evidence; weight credibility admitting this its were error in fact. for the trier of assignment of error claims in his second that the

Havlat also it prejudicial error because committed decided trial court testimony relating Witmuss’ guilt on the basis of Havlat’s contrary to the systems. assertion is record. The irrigation This testimony, only but judge’s findings noted the as a trial the defendant evidence that supporting other circumstance cultivating marijuana plants. The other evidence included the officers; investigating the the observations of soil around the and plants, damp; pump, which was disturbed the and hoses place operable; palm print which were in the defendant’s on pump; the fact that defendant controlled area plants growing. where the were disregarding Even Witmuss’ testimony, probative ample support evidence existed to defendant’s conviction.

We will guilty not interfere with a upon verdict based in lacking evidence a criminal case unless the evidence is so in probative that it be force can said as a matter that of law support guilty beyond evidence insufficient to a verdict a Thaden, 622, reasonable doubt. State v. 210 Neb. 316 N.W.2d Here, (1982). 317 the record discloses sufficient evidence which supports theory a rational of the guilt. defendant’s Havlat’s assignment second of error is therefore without merit. judgment For these reasons of the district court is in all respects affirmed. Affirmed. C.J., dissenting.

Krivosha, respectfully majority must from I dissent in this case. I do so because I believe that justify the facts of this case do not our saying right that the defendant’s free be of unreasonable searches and under either seizures the fourth amendment to the Const, 7, I, U.S. Constitution or Neb. art. not violated. I persuaded part by am the dissent of Justice Marshall in States, 170, 104 v. U.S. Oliver United 466 S. Ct. 80 L. Ed. upon (1984), part by 2d 214 the case relied majority in this Oliver, case. his dissent Justice Marshall at “open provide setting concludes that fields do not for those that the intimate activities Amendment is intended to shelter government surveillance,” Oliver, from interference or nevertheless, teaches us: single determines

No factor whether an individual legitimately may claim under the Fourth Amendment that place government be free of a should intrusion not assessing authorized warrant. In [Citation omitted.] infringes degree upon to which a search individual weight privacy, given the Court has to such factors as the intention of the Framers Fourth Amendment omitted], which the put the uses to individual has [citation omitted], and a location our societal [citation understanding that certain areas deserve the most government scrupulous protection from invasion [citation equally factors are These relevant omitted]. government’s determining whether the upon intrusion probable open fields without a warrant or cause violates expectations privacy of is therefore reasonable a by Amendment. proscribed search Id. at 177-78. done, look to majority in this case has I too would

As the this Neb. Cemper, in State v. court’s earlier decision conclusion, (1981). N.W.2d 820 I would not reach the same however, regarding holding my Cemper. Cemper of view open protection has not written out the field from the of either Const, the fourth amendment to the U.S. Constitution or Neb. I, Rather, Cemper, supra art. 7. State v. at 307 N.W.2d at § 823, indicates:

The protects persons fourth amendment but it does not every protect every them in circumstance in place, public private. Ownership possessory rights “places” important determining are still whether or not particular person legitimate expectation privacy has particular place. open in a fields doctrine is not completely dead. Its reincarnated substance is still a vital part concept of the broader constitutional of freedom from unreasonable searches and seizures. that,

Having said we then Cemper went on in to conclude that, Cemper, under the circumstances the defendant could legitimate expectation privacy not have a particular in his open Cemper, however, field. The facts in were that while there surrounding area, unlocked, was a fence there were open gates signs posted. and no That is presented not the evidence Here, us in this case. the evidence is that the officers had to through perimeter get crawl fence in order to into the field. To suggest person placed that a who has a locked fence around a posted field and the fence with trespassing signs no has no expectation privacy is simply ignore the facts of the matter. prepared simply I am to hold provisions that under the Const, I, Neb. art. no one in may Nebraska have an expectation privacy in an open field tightly fenced, which is locked, signed against trespassers. I cannot imagine what person more a could do to evidence an privacy. view, my Constitution, In under the Nebraska before a court whether right can determine a citizen’s privacy has been violated, a court must examine the facts to determine whether a challenging a person search or i.e., seizure has standing, expectation privacy. reasonable having After concluded that has shown that he Havlat had a reasonable I would privacy, then examine the facts and conclude that the in the and, instant thus, search case was unreasonable Havlat’s rights were violated. Neither the fourth amendment to the Const, I, federal Constitution nor Neb. art. all bars seizures; they merely searches and bar unreasonable searches and seizures. The most common and the reliable most method of showing that a by proving search was reasonable is trial at that a properly search warrant had been procured before Thus, search. “a search carried on suspect’s seizure out premises without per a warrant is se unreasonable unless the police can show it carefully that falls within one designated exceptions presence based ‘exigent Weible, circumstances.’” State v. 211 Neb.

N.W.2d 923 (1982). present case the evidence that the officers discloses flew over the area and took photographs. When the photographs developed, testified, were they the officers “felt depicted vegetation haystack] near [the marijuana.” nothing There is in the record to indicate that with that information the officers could not have obtained a warrant area; to search exigent there were no circumstances shown By here. requiring officers to first obtain a warrant before intruding into a citizen’s privacy, the Constitutions of both the United States and the contemplate State of Nebraska that some impartial magistrate arbitrator in the form of a will be afforded an opportunity to determine whether there is a reasonable basis invading protected citizen’s otherwise privacy. By not doing case, inso this the State conducted an unreasonable search, in violation of both federal and state Constitutions. apparent

While it is we that must do all we can combat ever-growing problem by drugs society, created within am our I More, who, nevertheless reminded words Sir Thomas being Roper after told every he would cut down law England Devil, said, get after “And when the last law was down, you Devil turned round on you would —where hide, Roper, being the laws all flat?”

Shanahan, J., dissenting. majority provided investigative day The has field for law enforcement searches without a warrant. farm, resided, Terry parents Havlat where Havlat’s lies sections, and Section 3 on the east adjacent Section parts

in Section part west, in the northern with the farmstead on the Terry Havlat in Farming operations, conducted 4. hay crops, included with his father since partnership farmstead, of the in operations. South production, and cattle a milo field. East quarter of Section was the southeast field, quarter of in the northwest was an alfalfa farmstead quarter the pasture located in southwest Section creek, field separating the alfalfa Woods and a same section. line to a along quarter section pasture, ran east from the Havlat farm. county road at the east side of north-south trespassing” and several “no perimeter had fences The farm provided creek area signs conspicuously posted. The wooded calving in winter. operations for cattle and shelter Heiden, 26, 1983, morning July Trooper On the drug control of the Nebraska investigator in the division of Patrol, “arrangements made to do some aerial State there were being marijuana flying places possibility where the existed of morning, Patrol aircraft at an fields.” That from a State feet, between 500 and 700 Heiden took several altitude photographs especially farm and focused on the Havlat While wooded creek area southeast of farmstead. aerially viewing the area photographing without binoculars, “green vegetation” growing around Heiden noticed field, haystack in of the alfalfa located the southwest corner boundary near the west of Section 3. photographs developed

When the aerial were and examined July vegetation depicted him on Heiden “felt that [the Heiden, haystack] marijuana.” July near the On patrol investigator photographs, another who saw the aerial question decided “to hike into the area in check out the whether, photographs” plants and to “determine if those were marijuana, they planted.” whether were volunteer or The two farm, investigators parked the east of the Havlat drove to side road, county sign, trespassing” their car on the observed a “no fence, permission through perimeter without Havlat crawled woods, their and started trek westward with their haystack being quarter away destination area a mile and not walking visible from the road. After west “close to a half a mile,” investigators haystack depicted arrived at the in the photographs. aerial There explanation given is no for the troopers’ walking a “half a mile” reach woods to haystack quarter area located mile from the site fixed road —a with precision Notwithstanding the aerial photographs. their approach, investigators finally somewhat nomadic arrived haystack at vegetation, by the and verified that the observed July 26, marijuana. on Heiden was cultivated The State Patrol photographs July obtained aerial additional on and that day patrol investigators, again same three without Havlat permission, east, county entered the farm from on the road the haystack, then, two,” to the walked and for an “hour marijuana growing searched for vicinity outside the immediate haystack. of the August investigators

On 2 of the State Patrol entered the time, permission, Havlat farm for up the third without set and a haystack. “surveillance camera” near the Investigators, still permission, Havlat the premises August without entered 4 on camera, fourth changed for the time and film in the surveillance finally by was patrol investigators August which removed on 5 during the entry permission. fifth without August On Heiden and investigator, lacking permission Havlat, another from surveillance, the farm again up personal entered to set perhaps Terry green-handed. to troopers catch Havlat The carried their equipment, shotgun. surveillance included sawed-off haystack, tree, trooper placed shotgun Near the one the under troopers momentarily and the their equipment left photograph they reconnoiter the area. When returned to equipment, the troopers location of their the observed “[a] subject sitting our equipment, dog holding with with a shotgun belonged” troopers. Havlat, to one of Perhaps accompanied by dog, any event, was holding shotgun. his troopers Terry “put shotgun one of the Havlat directed supplied complied, down.” Havlat his identification to troopers arrested. troopers, later removed marijuana plants Based for evidence. on an affidavit containing through information obtained the various July August entries between 28 and nonconsensual court, August 9, county Terry warrant on issued a to search residence, a search September issued

Havlat’s town of the Havlat wooded creek area pertaining warrant to the farm. walking might say investigators, in

Skeptics that the itinerant by haystack pinpointed aerial a half mile to reach road, 1,320 county at a location feet west photographs than a general, investigatory expedition rather were on a that, given haystack. might Others surmise realistic route to the intensity pedestrian persistent time and the traffic additional farm, by question law enforcement on the Havlat entire search moot on account of the about would become investigators’ prescriptive right-of-way acquired on the However, admissibility question concerning premises. by investigators the evidence obtained is not moot must be addressed. expressed Supreme the U.S. Court in v. United

As Katz States, 347, 350-51, 353, 389 U.S. 88 S. Ct. 19 L. Ed. 2d (1967): problems correct solution of Fourth Amendment

[T]he necessarily promoted phrase incantation of the “constitutionally protected . . area.” . effort [An] “area,” given decide whether or not a viewed in the abstract, “constitutionally protected” is deflects attention by problem presented from the this case. For the Fourth protects people, places. Amendment not . .. . recognized

. . once it is that the Fourth [A]nd protects people Amendment simply not —and against seizures, unreasonable searches and it “areas” — clear becomes that the reach of that Amendment cannot upon presence turn or physical absence of a intrusion any given into enclosure. Katz,

Concurring in Justice Harlan stated: is a “[T]here requirement, twofold person first that a have exhibited an (subjective) expectation and, second, actual privacy that the expectation society be one prepared recognize that is as ” ‘reasonable.’ Id. at 361. majority

The greatly of this court emphasized has adopted expressed States, the view in Oliver v. United 466 U.S.

571 170, 179, 104 1735, S. 214 (1984): open Ct. 80 L.Ed. 2d Because public ways police fields “are accessible to the and the that a home, office, an or commercial structure would not be . . . privacy open is expectation

asserted fields ” expectation ‘society recognizes as reasonable.’ clear, Supreme In Oliver U.S. also “It Court observed: is however, any ‘open may the term fields’ include unoccupied curtilage.” undeveloped or area outside of the 466 U.S. at 180 n.ll. This leads to the constitutional converse that phrase “open may any occupied fields” not include developed curtilage. area outside the plausible determining more particular test whether a is a constitutionally protected

site two-part area is found in the by States, suggested test Justice Harlan in v. supra: United Katz (1) person Has expectation exhibited a reasonable privacy? affirmative, preceding If the is in the answered Has (2) such of privacy by been violated unreasonable governmental intrusion? Such been two-part adopted test has by answering state courts questions about law enforcement’s See, search and Brady, seizure of citizens. State v. 406 2d So. Edwards, (Fla. 1981); 1096, 1093 People v. 71 Cal. 2d 458 P.2d Rptr. (1969); Byers, Cal. (La. State v. So. 2d 1978). attempt its upright position, majority at an opinion 376, 307

leans on State v. Cemper, 209 Neb. (1981), N.W.2d 820 adopted by court, judges two remaining this with the five judges concurring Cemper in the result. In the real estate involved posted, through was not was accessible at least one fence-gate closed, which was never and was “owned land one company, [Cemper] employee, was an and farmed another company, [Cemper] connection, with which had no in a rural area land on which no one at resided.” 209 Neb. seeking similarities, 307 N.W.2d at 823. Even strained one compelled conclude there is a drastic difference between Cemper present the facts in and the case. The statement in State Cemper, supra “Hunters, v. at 307 N.W.2d at fishermen, trespassers commonly and other technical are so expected in the rural areas of this failure post state that a to signs trespassing regarded by many persons is an as almost enter,” quixotic, questionable a to implied permission law, inaccurate and an constitutional concept by one without of the situation encountered characterization to find hunting emerging from a field of cornstalks consent interloper view the as a scowling who does not landowner recreational licensee. entirely Havlat land was fenced present case the

In the by only trespass, with or property, accessible consent private trespassing” signs, and conspicuously posted with “no developed farm unit. Short of occupied an constituted around constructing opaque impenetrable structure some farm, measures could it is difficult to envision what other right reasonably preserve utilized to assert and have been subjective privacy on the Havlat land. Havlat demonstrated against unreasonable expectation privacy protectable government Acquisition physical evidence in the intrusion. upon present case is the result of an invasion and violation of privacy, an unreasonable Havlat’s reasonable search, and should have been excluded. is, however, excluding additional reason for

There Although majority physical present evidence in the case. euphemistically entries “warrantless calls officers’ intrusions,” were, nonetheless, investigators’ six entries trespasses. if, degree trespass person

A commits second criminal so, knowing privileged do he that he is not licensed or any place against or remains in as to which notice enters given by: trespass is actor;

(a) Actual communication to or (b) Posting prescribed reasonably in a manner law or intruders; likely to come to the attention of Fencing manifestly designed (c) or other enclosure exclude intruders. (Reissue 28-521(1) 1979).

Neb. Rev. Stat. § foregoing criminal Conviction for violation of statute is fine, punishable imprisonment, imprisonment or both 28-106(1) (Cum. Supp. 1984). fine. Neb. Rev. Stat. § Constitution, I, 7, construing art. “The the Nebraska houses, right people persons, papers, be in their secure against and effects unreasonable and seizures not searches shall violated,” analysis be we should unquestioningly not follow an by Supreme tendered the U.S. regarding Court its construction of fourth amendment to the U.S. Constitution. As the majority recognizes, inextricably court is this bound to provide federal decisions which less restriction on searches and may seizures than be appropriate for the citizens of Nebraska. We still capacity, obligation, have the well as as the to exercise independence determining any exclusionary in regarding rule questioned admission of evidence provisions under the of the Nebraska Constitution. When upon called to construe the Constitution, Nebraska this court should not exhibit some pavlovian conditioned in reflex adoption uncritical federal decisions as the placed construction to provisions be analogous Nebraska Constitution to the U.S. Constitution’s. enforcement, conduct of law obtaining physical case,

evidence in this repeated trespasses and, involved therefore, violations of the criminal code A Nebraska. judicial rule for by exclusion of evidence tainted violation undoubtedly criminal code would deter illegal future conduct by investigations law enforcement in gathering evidence. As consideration, a more by allowing fundamental admission of evidence through obtained law illegal activity, enforcement’s encourage courts continued violation lawof as a method of obtaining accused, evidence to convict an and “no distinction prosecutor can be taken between the Government as and the States, 277 judge.” Government Olmstead v. United as (1928) 48 S. 72 L. Ed. U.S. Ct. J., point imperative At that (Holmes, dissenting). Brandéis, judicial integrity evaporates. expressed As Justice States, dissenting supra United at 485: “To also Olmstead v. the end that in the administration of the criminal law declare may means —to declare that the Government justifies private in order of a commit crimes to secure conviction bring Against criminal —would terrible retribution. resolutely face.” this should set its pernicious doctrine Court contempt people, laws of the law When enforcement has laws. inevitably contempt will have for enforcement of people George pointed E. Dix out: Professor has responsibility If state courts are to fulfill their as state tribunals, necessary they acknowledge it will be state analysis. requiring independent law issues as ones are, course, Supreme analyses and Court results potential available as models. In view of the nature of the claims, exclusionary presented issues state law sanction however, obligated great are exercise state courts care deferring before to these models.

Dix, Law, Exclusionary Rule as 11 Am. Issues Matters State 109,148 Crim. L. (1983). J. rights only

If this court views the of Nebraska’s citizens light decisions, then, protective truly, of some federal and less rights “through glass, darkly.” we will see such Jerry Shoecraft, appellee, D. v. Catholic Social Services nonprofit Bureau, Incorporated, corporation, Nebraska Mary Doe, and John Doe and real and true names Department unknown, appellants, Services, of Social appellee. Nebraska, State

385N.W.2d 448 25, 1986. April Filed No. 85-657. notes 185-86: ground The first the Court rests its decision is the Fourth that Amendment “indicates with some places precision things encompassed by its protections,” and property that real is not included in the protected spaces and possessions. Ante, list at 176. This argument line of has several obviously, flaws. Most it is many inconsistent with the results of previous of our decisions, none of purports which the Court to overrule. For example, public a telephone neither booth nor a conversation fairly conducted therein can be described as house, effect; yet we held that the person, paper, have police Fourth Amendment forbids the without a warrant eavesdrop United on such conversation. v. Katz States, argued (1967). plausibly 389U. S. 347 Nor can it be that an office or commercial establishment is covered Amendment; yet plain language we have held premises protection are entitled to such constitutional they public marked in if are a fashion alerts the to the Barlow’s, Inc., they private. are fact that Marshall v. (1978); Leasing Corp. U. S. G. M. v. United States, (1977). U. S. 358-359 can, hand, perceive It is difficult for me to how we on the one posted open write out fields surrounded locked fence and, other, signs reading Trespass,” public “No on the read in telephone places booths and commercial of business. States, majority supra While the in Oliver v. United at

Case Details

Case Name: State v. Havlat

Court Name: Nebraska Supreme Court

Date Published: Apr 25, 1986

Citation: 385 N.W.2d 436

Docket Number: 85-374

Court Abbreviation: Neb.