NE: No reasonable expectation of privacy in unfenced and unoccupied urban lot

Admitting that it has been less than clear in the past, the Nebraska Supreme Court holds that more than just probable cause is required to enter real property. Here, the entry was based on open fields to observe all the broken down cars on defendant’s lot visible and photographed from the street. City enforcement officers entered the property to record VINs but they didn’t touch anything. [This is a significant case on urban open fields.] City of Beatrice v. Meints, 289 Neb. 558, 2014 Neb. LEXIS 187 (December 5, 2014), aff’g on other grounds City of Beatrice v. Meints, 21 Neb. App. 805, 844 N.W.2d 85 (2014) (posted here):

If probable cause alone justified a warrantless search of real property, it would suffocate the Fourth Amendment. “A warrantless search cannot be justified by probable cause, because that is the very determination for which the constitution requires a warrant hearing.” By ensuring an objective determination of probable cause, rather than one “‘by the officer engaged in the often competitive enterprise of ferreting out crime,'” the warrant requirement ensures that intrusions on privacy are not made by “random or arbitrary acts of government agents.” Reviewing a search after it has occurred is a poor substitute for a prior judicial determination:

[A]llowing an after-the-fact analysis of the facts and circumstances to determine whether there was probable cause supporting a warrantless search or seizure “bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.”

And efficiency alone is not enough to disregard the warrant requirement. Obviously, the investigation of crime would always be simpler if police did not need a warrant.

. . .

The Court of Appeals assumed that a warrantless search of Meints’ real property occurred but held that the search was reasonable under the probable cause exception to the warrant requirement. As explained, probable cause does not justify a warrantless search of real property. If the City conducted a search, it does not pass constitutional muster unless the City can identify an applicable exception to the warrant requirement.

. . .

We conclude that an unenclosed area within an incorporated community is an “open field” if it is not curtilage and the person complaining of the intrusion does not, under the facts of the case, have a reasonable expectation of privacy in the area. We acknowledge that some courts have taken a less nuanced view of Oliver. Some courts have held, for example, that vacant residential lots, the front yard of an urban duplex, and the backyard of a suburban house are “open fields,” seemingly on the narrow ground that the area was neither curtilage nor an enclosed structure. Many of these courts have particularly relied on the following oft-cited footnote in Oliver: “It is clear … that the term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.” We do not read this footnote as standing for the rule that any unenclosed area outside the curtilage of a home is categorically without Fourth Amendment protection. We note that the Court made this statement apparently in response to the argument that a “thickly wooded area” is not, literally, an “open field.” Furthermore, saying that the open fields doctrine may include any unoccupied land outside the curtilage of a house is not equivalent to saying that the doctrine does include any unoccupied land outside the curtilage. We are not eager to imply so sweeping a rule from a single noncommittal footnote.

. . .

Here, we are not concerned about curtilage because no residence was on the land. Our focus is whether Meints in fact had a reasonable expectation of privacy in his urban lot. Meints’ property is along a public street in Beatrice that comes to a “dead end” after reaching his land. Both the code enforcement officer and McCormick testified that there is no house, “closed” building, or fence on the property. A considerable number of automobiles and motorcycles sit in the dirt, obscured partially only by vegetation. The lot is strewn with smaller bits of detritus, such as sawhorses, chairs, screen doors, bicycles, woodboards, lawnmowers, fenceposts, and a basketball hoop. There are two wooden structures referred to in the record as “lean-to[s]” that are more or less enclosed on three sides. One of these structures holds about 10 motorcycles, which are visible from outside the structure. The code enforcement officer testified that while he was standing in a public street, in an alley, or on the property of one of Meints’ neighbors, he could see motor vehicles without license plates or in a state of disrepair. Similarly, McCormick testified that he could see motor vehicles with no license plates or in a state of disrepair from a public street, though he could not see the VINs until he walked onto the property. At least some of the vehicles are within the line of sight of neighboring houses. The code enforcement officer estimated that he received 15 to 20 complaints from Meints’ neighbors about “the junk, other expletives, and the motor vehicles.” The trial court found that McCormick did not open any car doors, and McCormick testified that he did not enter any structure, or “move anything” to view the VINs while he was on the property.

We conclude that Meints did not have a reasonable expectation of privacy in his unfenced and unoccupied urban lot. … (footnotes omitted)