Reasonable Expectation of Privacy

The warrant requirement of the Fourth Amendment of the United States Constitution is still alive in the State of Nebraska. In a December, 2014 Nebraska Supreme Court decision, the Court made it clear that the state must follow Federal Court rulings noting that the warrantless search exceptions recognized in the State of Nebraska do not include “probable cause” searches.

While cars and trucks that travel on public roads and highways may be searched with probable cause without a warrant, this exception does not apply to searches on private property. Probable cause, alone, is not a recognized exception the warrant requirement of the Fourth Amendment of the United States Constitution.

Search of a private citizen’s property must be reasonable. Furthermore, without consent or another exception, the search may not be conducted without a search warrant signed by a Judge or a Magistrate.

In this case, the City of Beatrice took the position that probable cause, standing alone, justified a warrantless search which was contrary to the case of Katz v. United States. An officer’s correct belief in the existence of probable cause does not preclude the warrant requirement.

Interestingly, while the Court emphasized the importance of having a search warrant to search real property, the Court found against the Defendant under the open fields doctrine. Essentially, no search occurs under the reasonable expectation of privacy test or the physical intrusion test if the area viewed by law enforcement is an “open field.” The Court has reasoned in the past that cropland and other rural areas do not establish a reasonable expectation of privacy because those lands are usually accessible to the public and law enforcement in ways that a house or structure is not. While steps taken, such as erecting fences or posting no trespassing signs, may establish expectations of privacy in open fields, there is not expectation of privacy in unfenced and unoccupied urban lots. The Court reasoned that because the Defendant did not have a reasonable expectation of privacy in his urban lot, the land was an open field and therefore no warrant was needed to gather information about vehicles on his property because the information gathering was not a search under the Fourth Amendment.

In sum, while this case clarified the warrant requirement for law enforcement to search a private area, it certainly diminished a reasonable expectation of privacy for business owners in urban areas.

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