NE: Warrant for grass clippings was mooted by open fields and plain view

A warrant for grass clippings was essentially a moot point since it was possible to seize the grass and data about it under open fields or the plain view doctrine. State v. Meduna, 18 Neb. App. 792, 2011 Neb. App. LEXIS 2 (January 4, 2011) (opinion first withdrawn then reposted):

Initially, Meduna alleges that the trial court erred in denying his motion to suppress evidence illegally seized by Cook, the State’s rangeland management specialist. He argues that although Cook’s duty was to seize grass clippings as specified in the warrant, Cook decided to change course and attempted to determine the amount of cover on the land and the amount of utilization of the grasses. Meduna claims that this “data gathering” by Cook “far exceeded the scope of the warrant” and that, consequently, Meduna’s right to be free from unreasonable searches and seizures was violated. Brief for appellant at 8. We disagree for a number of reasons.

. . .

As Cook explained in his report on the range condition inventory at 3-Strikes Ranch, the original intention was to “clip standing plant material to estimate forage production for each site.” However, Cook was unable to do so because the grasses on the range were extremely sparse. Forced to improvise under the circumstances, Cook employed a different methodology. Instead of clipping grass, Cook tossed a hoop onto the ground at six different locations throughout Meduna’s ranch. He visually estimated the plant levels within the hoop at each site, took a “GPS reading” of his precise location, and photographed each observation point.

Meduna asserts that Cook’s visual estimation “far exceeded the scope of the warrant.” However, the affidavit in support of that warrant recites, as stated above, that “stocking rates for the pastures can be determined by the grass species and condition.” Thus, not only did Cook engage in less invasive activity than the warrant authorized because he did not seize any items from the ranch, his assessment as to the stocking rate for the range was contemplated by the affidavit upon which, Meduna does not dispute, probable cause for the search was established.

Moreover, under the open fields doctrine, Meduna had no reasonable expectation of privacy on the range. Pursuant to that well-settled legal principle, open fields do not provide the setting for those intimate activities that the Fourth Amendment is intended to shelter from government interference or surveillance. See State v. Ramaekers, 257 Neb. 391, 597 N.W.2d 608 (1999). Here, aside from the curtilage—that area so intimately tied to the home that an individual reasonably may expect that the area in question will be treated as the home itself—the range at 3-Strikes Ranch is an open field and is thus not protected from government inspection. See id. There is uncontroverted testimony from Edens at the November 10, 2009, suppression hearing that none of the six sites observed by Cook during his inventory of 3-Strikes Ranch are within the curtilage of Meduna’s home.

We additionally agree with the State that Cook’s observations were clearly admissible under the plain view doctrine.