*

 The Honorable James B. Loken stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2010. He has been succeeded by the Honorable William Jay Riley.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1679

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Michael E. Nikolas, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

City of Omaha, et al., *

*

Defendants - Appellees. *

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Submitted: February 11, 2010

Filed: May 17, 2010

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Before LOKEN, Chief Judge,*

 GRUENDER and BENTON, Circuit Judges.

___________

LOKEN, Chief Judge.

In July 2000, Michael E. Nikolas purchased 6.79 acres of land within three

miles of the Omaha city limits, an area in which the City has statutory planning and

zoning authority. See Neb. Rev. Stat. § 14-418. The property included a forested

area, a ravine, a house, and a dilapidated two-story structure built by a prior owner

without necessary building permits that the City had placarded for condemnation. In

the following years, Nikolas had a series of zoning and code enforcement disputes
1

 The HONORABLE LAURIE SMITH CAMP, United States District Judge for

the District of Nebraska.

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with the City’s Planning Department and the Douglas County Health Department. In

February 2008, he filed this action against the City of Omaha and Planning

Department Code Inspector Scott P. Benson, asserting federal constitutional claims

under 42 U.S.C. § 1983 and an inverse condemnation claim under state law. The

district court1

 granted summary judgment dismissing Nikolas’s federal claims with

prejudice and declining to exercise pendent jurisdiction over his state law claims.

Nikolas appeals the dismissal of his federal claims. Reviewing the grant of summary

judgment de novo, we affirm. See Lewis v. Jacks, 486 F.3d 1025, 1027 (8th Cir.

2007) (standard of review). We will discuss the issues raised by Nikolas in the

context of the two distinct enforcement actions out of which those claims arose.

I. The Debris-Filled Ravine. 

At some time after he purchased the property, Nikolas dumped construction

debris in the ravine, allegedly to stabilize the area and control erosion. When the

unsightly debris reached a height of some thirty feet, a neighbor complained to the

Douglas County Health Department. On January 15, 2003, the Health Department

wrote Nikolas advising that its officers had evidence he was dumping “building rubble

and demolition debris” on the property in violation of § 33-27 of the Omaha

Municipal Code and ordering him “to cease all illegal dumping activity immediately

and apply for written authorization.” 

On March 1, 2004, Health Department inspector Les Theisen entered the

property and photographed the debris. City code inspector Benson accompanied

Theisen at the latter’s request because, as will become apparent in Part II of this

opinion, Benson was already familiar with the property. On March 11, a deputy

sheriff issued Nikolas a citation for violating Douglas County’s Nuisance Regulation.
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The citation referenced § 23-174.10 of the Nebraska Revised Statutes and the Douglas

County Regulation that defined nuisances to include: “14. Building, construction, and

demolition debris except debris defined as beneficial fill . . . and issued a valid

permit.” Six weeks later, Douglas County dropped the charge, and the City charged

that the debris was a littering violation of § 18-22(b) of the Omaha Municipal Code

(“OMC”). Chapter 18 contains the City’s nuisance regulations. Section 18-22(b)

provides that it is unlawful for the owner “of any lot or ground in the city” to “cause

to allow litter to be deposited” or remain on his land. 

 

Nikolas initially pleaded no contest and was found guilty of the charge. He

moved to withdraw the plea when the parties failed to negotiate an appropriate

remedy. The County Court denied that motion and, in March 2005, sentenced Nikolas

to 24 months probation, ten days in jail, and an additional sixty days in jail unless he

promptly completed “a mitigation plan acceptable to the City of Omaha Planning

Department.” Nikolas appealed. The Nebraska Court of Appeals reversed the

conviction because of inadequate plea advice. On remand, the proceedings were

dismissed in December 2007 for failure to satisfy speedy trial requirements. In this

§ 1983 action, Nikolas raises various challenges to his prosecution for violating OMC

§ 18-22(b). These issues were not raised in the state court action. 

First, Nikolas argues that § 18-22 is unconstitutionally vague as applied to him,

not because its operative prohibition is impermissibly vague, but because Chapter 18

does not “clearly articulate whether § 18-22(b) applies to littering on . . . Property

outside the City’s corporate limits.” Chapter 18 is impermissibly vague, he explains,

because it applies to all property “within the city and, at the discretion of the duly

designated enforcing officer, all property within three miles of the city limits.” OMC

§ 18-1 (emphasis added). We acknowledge that criminal statutes can be

impermissibly vague. See United States v. Washam, 312 F.3d 926 (8th Cir. 2002).

But the unusual attempt to apply that doctrine to this prosecution is unsound.
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The Nebraska statutes expressly grant the City broad power to control nuisances

and littering on property within three miles of the city limits. Neb. Rev. Stat. §§ 14-

102(15), 14-103. They also authorize Douglas County to adopt health and safety

regulations that apply to all parts of the county not within city limits “except within

the unincorporated area where a city . . . has been granted zoning jurisdiction and is

exercising such jurisdiction.” Id. § 23-174.10. Here, Douglas County initially

charged Nikolas with a violation of its nuisance regulations but dropped that charge

because those regulations expressly do not apply in an area “over which zoning

jurisdiction has been granted to any city or village.” The City then charged a violation

of OMC § 18-22(b). Thus, the practical effect of Nikolas’s argument -- that neither the

County nor the City had jurisdiction to take action against a serious health and safety

hazard on his property -- is contrary to manifest legislative intent. 

We conclude that § 18-1, properly construed, was plainly an exercise of the

City’s statutory nuisance jurisdiction over all property within three miles of the city

limits, subject to the prosecutorial discretion of a “duly designated enforcing officer”

to exempt a particular property from some or all of Chapter 18’s restrictions. There

is no arguable constitutional flaw in this regime. Nor can Nikolas plausibly claim lack

of notice that his property was subject to littering and nuisance regulations. Thus, it

is not surprising he did not make this strained vagueness argument to the state courts

before pleading no contest to the charge of violating § 18-22(b). 

 Second, for the same reason, Nikolas argues that § 18-1 unconstitutionally

delegated legislative authority to apply the criminal provisions of § 18-22(b) to

property within three miles of the city limits. He cites no federal case applying the

rarely-invoked non-delegation doctrine to a statute conferring upon prosecutors or

enforcement officials the discretion to determine what regulatory violations will be

prosecuted. This contention borders on the frivolous. Compare United States v.

Guzman, 591 F.3d 83, 93 (2d Cir. 2010).
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Third, Nikolas argues that § 18-22(b) as applied to him violated the Ex Post

Facto Clause of the United States Constitution because the City did not determine that

§ 18-22(b) applied to his property until it charged him with a violation, after the

alleged littering occurred. This contention is also without merit. As we have

explained, Chapter 18 applied to his property from the time of its enactment in 1980,

subject only to the discretion of enforcement officials not to prosecute. Thus, the

alleged littering was prohibited by § 18-22(b) long prior to its occurrence. 

Finally, Nikolas did not sue Douglas County or its health inspector whose

photos of the debris-filled ravine helped establish probable cause for the nuisance and

littering citations. Nor does he argue that inspector Theisen violated the Fourth

Amendment when he entered the property and took those photos on March 1, 2004.

Rather, Nikolas argues that § 18-7 of Chapter 18 violates the Fourth Amendment,

facially and as applied to him, because it authorizes Planning Department inspectors

“to enter any premises in the city or its extraterritorial jurisdiction at any reasonable

time,” without requiring that they obtain a warrant. Theisen acted under Douglas

County authority. Thus, the facial attack on § 18-7 is irrelevant. Cf. United States v.

Stephens, 594 F.3d 1033, 1037-38 (8th Cir. 2010); Roark v. South Iron R-1 School

Dist., 573 F.3d 556, 562 (8th Cir. 2009). It is also without merit. An ordinance such

as § 18-7 simply authorizes enforcement action. If action taken pursuant to that

authority violates Fourth Amendment warrant requirements, the resulting criminal

prosecution may be tainted, but that does not render the authorizing statute

unconstitutional. See, e.g., Camara v. Municipal Court, 387 U.S. 523 (1967). 

City code inspector Benson did accompany health inspector Theisen on March

1, 2004, but Benson’s presence did not cause either the nuisance or littering citations.

In sweeping fashion, Nikolas argues that all of Benson’s warrantless searches violated

the Fourth Amendment but discusses only his March 1, 2004, search of the garage,

addressed in Part II of this opinion. Benson’s undisputed affidavit explained that he

visited the property several times during the pendency of the littering proceedings to
2

 Moreover, Benson acted under authority granted by the Property Maintenance

Chapter of the City’s Municipal Code, which provides that, “[i]f entry is refused or

not obtained, the code official is authorized to pursue recourse as provided by law.”

OMC § 48-34. Benson testified that, on at least two occasions, he was refused entry

to residential premises, obtained a warrant, and returned. The difference in the

authorizing language in § 48-34 and § 18-7 is neither troublesome nor surprising.

Chapter 48 covers maintenance of existing structures, whereas nuisance violations

frequently occur outside the home in areas either visible from public lands or within

the “open fields” exception to Fourth Amendment warrant requirements.

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inspect the condition of the debris in the ravine and other open areas. If Nikolas

intended to include these searches in his unfocused argument, we summarily reject the

contention as contrary to the well-established principle that police officers may enter

and search “open fields” without a warrant. See Oliver v. United States, 466 U.S. 170

(1984); United States v. Pennington, 287 F.3d 739, 745 (8th Cir.), cert. denied, 537

U.S. 1022 (2002). Thus, the attack on § 18-7 is irrelevant even as to inspector

Benson’s actions.2

For the foregoing reasons, we affirm the dismissal of all § 1983 claims for

damages or other relief arising out of or related in any way to the prosecution of

Nikolas for littering his property with construction and other debris.

 II. The Dilapidated Garage.

When Nikolas purchased the property, the second structure had been placarded

for condemnation and removal because it was in serious disrepair and was unlawfully

built without necessary permits. The Chief Housing Inspector gave Nikolas written

notice of this action in August 2000 and, in November, ordered him to appear and

show cause why the structure should not be condemned and removed. This hearing

was continued several times over the next two years while Nikolas obtained repair

permits and replaced the siding, roof, and windows on the structure. On September
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27, 2002, the City Planning Director wrote Nikolas regarding the condemnation.

Describing the structure as “Converted into garage. REPAIRED,” the notice stated:

This is to inform you that the inspection conducted by Scott P. Benson,

Housing Inspector, on September 26, 2002, confirmed that the abovereferenced property complies with Chapter 43 of the Omaha Municipal

Code, Unsafe and Dangerous Buildings.

Therefore, the City authorizes the release of the placarding . . . dated

April 7, 2000 . . . filed with the Douglas County Register of Deeds.

Also on September 26, Nikolas applied for electrical permits to install a disposal, a

furnace, a range, a dryer, air conditioning, a dishwasher and 35 outlets in the garage,

and in October he applied for a mechanical permit to install an air conditioning unit.

Although he intended to convert the upper floor of the garage into living quarters for

himself and his mother, he discontinued this construction work in December 2002

after receiving a letter from the local electric utility advising:

The City of Omaha Planning Department has informed us that your

property is not zoned for 2 residential units on the same property.

Therefore, the City of Omaha Permits and Inspections Department can

not issue a permit or give us authorization to connect service without a

valid address. . . . Once you have obtained a valid address, you can

obtain a permit from the City of Omaha Permits and Inspections

Department. The City of Omaha will do a final inspection, and will

authorize us to connect your service.

Nikolas did not apply to divide his property and obtain a second address.

When code inspector Benson accompanied health inspector Theisen to inspect

debris in the ravine on March 1, 2004, Benson first knocked on the front door of the

main residence to contact Nikolas or his tenant. At this time, Benson averred, he - 
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saw that the ‘garage’ had now been renovated to obviously serve as a

second residence on the property. The garage featured patio doors, sky

light windows, glass block windows of the type used for bathrooms,

plumbing piping entering and exiting the building, furnace venting

exiting the building, an air conditioning unit attached to the building, and

residential-style bow windows. These things are indicative of a

dwelling, not a garage.

Benson then circled the garage and “looked in every window and door.” Inside, he

saw unfinished work, tools, ladders, and construction materials. He knew that this

part of the City was zoned to prohibit two separate residences on the same lot. He

knew that Nikolas’s construction permits had expired, some without final inspections.

He knew that the garage had not been inspected or approved for use as a dwelling. He

perceived the garage had no functioning electricity, which is a code requirement for

a lawful dwelling unit. Based on this visual evidence that the approved use as a

garage was changing to unlawful use as a dwelling unit, Benson placed a placard on

the sliding glass door leading directly outside from the upper level, where the

dwelling-like improvements were being installed, to the top of the incline against

which the garage was built. The placard warned in large letters, “DANGER -

CLOSED,” followed in smaller print by this notice: 

This structure has been determined to be unsafe, unfit for human

occupancy, or unlawful, and is ordered closed by the City of Omaha

Planning Department. Its occupancy has been prohibited by the City

Code Official. Any person who occupies this structure . . . may be

prosecuted and punished by a fine of up to $500 and/or imprisonment of

up to six months.

Nikolas did not appeal this action to the Planning Department’s building board

of review, which likely would have stayed inspector Benson’s notice until the appeal

was heard. See OMC §§ 48-101 and 102. Instead, he unsuccessfully applied to the

Planning Department in 2005 to have the garage approved as an “accessory
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apartment,” see OMC § 55-763(a), and then, nearly four years after the placarding,

filed this federal court damage action. On appeal, Nikolas argues that inspector

Benson violated the Fourth Amendment by searching the garage without a warrant

and violated Nikolas’s procedural due process rights by placarding the property.

A. Fourth Amendment Issues. Nikolas argues that inspector Benson

conducted unreasonable warrantless searches when he left the driveway, circled the

garage, and peered in its windows. It is clear that, without a warrant, Benson could

enter the property through its open gate and proceed up the driveway to the front door

of the main residence to ask for consent to search inside any part of the residence. See

United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006), cert. denied, 549 U.S.

1259 (2007); United States v. Weston, 443 F.3d 661, 667 (8th Cir.), cert. denied, 549

U.S. 956 (2006). Likewise, viewing the exterior of the garage while proceeding up the

driveway required no warrant. See Air Pollution Variance Bd. v. W. Alfalfa Corp.,

416 U.S. 861, 864-65 (1974); Widgren v. Maple Grove Twp., 429 F.3d 575, 584-85

(6th Cir. 2005); United States v. Raines, 243 F.3d 419, 421-22 (8th Cir.), cert. denied,

532 U.S. 1073 (2001). Indeed, “visual observation is no ‘search’ at all.” Kyllo v.

United States, 533 U.S. 27, 32 (2001). Nor did inspectors Benson and Theisen need

a warrant to proceed from the unfenced residence to inspect portions of the property

that fall within the open fields doctrine, such as the ravine. See United States v.

Hayes, 551 F.3d 138, 147 (2d Cir. 2008); United States v. Traynor, 990 F.2d 1153,

1157 (9th Cir. 1993). Thus, the only arguable Fourth Amendment violation was

Benson walking from the residence to the garage, walking around the garage, and

looking in its windows.

Applying the multi-factor test in United States v. Dunn, 480 U.S. 294, 301

(1987), the district court concluded that Benson did not need a warrant to approach

the garage and peer in its windows because the garage was not part of the curtilage of

the residence some thirty to forty-five feet away. We agree with this conclusion,

which is consistent with our decisions that have applied Dunn to other garages and
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barns. See United States v. Gerard, 362 F.3d 484, 488 (8th Cir.), cert. denied, 543

U.S. 928 (2004); United States v. Mooring, 137 F.3d 595, 596 (8th Cir.), cert. denied,

525 U.S. 902 (1998); see also United States v. Cousins, 455 F.3d 1116, 1122, 1124

(10th Cir.), cert. denied, 549 U.S. 866 (2006). 

Moreover, even if Nikolas had an expectation of privacy in the garage

warranting protection comparable to that afforded the curtilage of a residence, we

conclude that Benson’s minimally intrusive exterior search and look through the

windows was constitutionally reasonable. Based on our review of Benson’s photos

of the garage exterior, it is obvious that he had probable cause to conclude on March

1, 2004, that the structure was in the process of being changed from a lawful garage

to an unlawful dwelling, and that it was unsafe and unfit for human occupancy in its

unfinished, unapproved condition. Thus, Benson could simply have placarded the

property and left. Instead, he looked in the windows, seeing more signs of on-going

construction and conversion of the upper level to a residence. Although Camara

established that housing and building inspectors need consent or a warrant to enter a

residence to search for code violations, Nikolas cites no case holding that an inspector

who is lawfully on the premises and who sees an apparent public health and safety

violation from the exterior of a detached structure needs a warrant before looking in

the window to confirm or refute the apparent violation. 

B. Placarding and Due Process. Nikolas argues that placarding the garage

without prior notice and an opportunity to be heard violated his constitutional right

to procedural due process. We disagree. Without question, procedural due process

requires notice and an opportunity to be heard before a private building may be

condemned as a nuisance and demolished. See Hroch v. City of Omaha, 4 F.3d 693,

695 (8th Cir. 1993). But the City had such procedures, as Nikolas well knew in March

2004. The garage was placarded and under an order to be demolished and removed

when Nikolas bought the property in July 2000. He promptly received a “First Notice

of Violation,” which extended the condemnation proceedings, and then an opportunity
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to appear and be heard in November 2000 before the demolition order was enforced.

He took good advantage of these predeprivation procedures, persuading the Planning

Department to continue the condemnation proceedings for nearly two years while he

remedied the conditions that made the garage unsafe and unfit. The Department then

released the structure from condemnation in September 2002 as a lawfully permitted

garage. Nikolas knew these procedures were available when the garage was

replacarded in March 2004, but he did not pursue them.

An additional issue of predeprivation due process could arise if placarding of

a structure as unfit for human occupancy caused a severe temporary deprivation, such

as the emergency closing of a retail establishment. We decline to address that issue

because the short answer here is that posting the placard on March 1, 2004, caused no

deprivation or interference with a protected property interest. The placard was merely

a prominent reminder of what Nikolas already knew, as well as a warning to the

general public that applicable zoning and building code restrictions prohibited any

person from occupying (living in) the garage. Nikolas argues that he was deprived of

other uses of the structure. Benson denied at his deposition that the placard barred

uses other than occupancy, testimony consistent with provisions of the Municipal

Code that separately prohibit occupancy and use. See OMC §§ 43-111, 48-122. In

any event, the summary judgment record contains no evidence that Nikolas was

denied a use other than occupancy, or that he was denied permission to undertake

other uses. From this record, it appears that his only pre-placarding use, storing tools

and construction materials, continued after placarding. Thus, at a minimum, summary

judgment on this tenuous due process claim was properly granted for failure of proof.

The only other “use” Nikolas wanted -- occupancy -- was unlawful before and after

the placarding. 

 For the same reason, Nikolas’s argument that placarding the garage was an

unreasonable seizure is without merit. Nothing was seized. From a Fourth
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Amendment perspective, the placarding bore no resemblance to the condemnation and

physical destruction of buildings that we upheld in Hroch, 4 F.3d at 696-97. 

III. Conclusion.

Finally, Nikolas argues that the district court abused its discretion in denying

his post-dismissal motion to amend the complaint if we determine that he did not

adequately plead a procedural due process claim. Like the district court, we have

considered that claim on the merits. Accordingly, there was no abuse of discretion.

The judgment of the district court is affirmed.

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