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was entitled to absolute immunity for conduct within the scope 

of his role in the juvenile proceedings. It correctly dismissed 

the six employees in their individual capacities because the 

plaintiffs’ claims against them were barred by the statute of 

limitations. The remaining 12 DHHS employees sued by the 

plaintiffs were not parties to this action. Therefore, there are 

no defendants remaining in the lawsuit that could be found 

liable to the plaintiffs. As such, we do not need to address the 

remaining assignments of error.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court that dismissed the plaintiffs’ complaint.

Affirmed

Cassel, J., not participating

City of Beatrice, State of Nebraska, appelle

v. Daniel A. Meints, appe

___ N.W.2d ___

Filed December 5, 2014. Nos. S-12-1083 through S-12-1092.

1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and 

Error. In reviewing a trial court’s ruling on a motion to suppress evidence based 

on a claimed violation of the Fourth Amendment, an appellate court applies a 

two-part standard of review. An appellate court reviews the trial court’s findings 

of historical facts for clear error. But whether those facts trigger or violate Fourth 

Amendment protections is a question of law that an appellate court independently reviews.

2. Search and Seizure. Searches conducted outside the judicial process, without 

prior approval by judge or magistrate, are per se unreasonable.

3. Constitutional Law: Search Warrants: Property. Probable cause, standing 

alone, is not an exception to the search warrant requirement of the Fourth 

Amendment as applied to real property.

4. Constitutional Law: Search and Seizure. A “search” under the Fourth 

Amendment occurs if a legitimate expectation of privacy is infringed.

5. ____: ____. A reasonable expectation of privacy is one with a source outside the 

Fourth Amendment, by reference either to concepts of real or personal property 

law or to understandings that society recognizes and permits.

6. ____: ____. A “search” under the Fourth Amendment occurs if the government 

gains evidence by physically intruding on constitutionally protected areas.
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7. ____: ____. No “search” occurs under either the reasonable expectation of privacy test or the physical intrusion test if the area examined is an “open field.”

8. Search and Seizure: Words and Phrases. “Open fields” are those unenclosed 

areas beyond the curtilage of a home in which the defendant has no reasonable 

expectation of privacy.

9. Search and Seizure. A person cannot have a reasonable expectation of privacy in 

unenclosed rural land.

10. Search and Seizure: Words and Phrases. 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.

Petitions for further review from the Court of Appeals, 

Moore, Pirtle, and Bishop, Judges, on appeal thereto from t

District Court for Gage County, Daniel E. Bryan, Jr., Judge

appeal thereto from the County Court for Gage County, Stev

B. Timm, Judge. Judgments of Court of Appeals affirme

Terry K. Barber, of Barber & Barber, P.C., L.L.O., for 

appellant.

Gregory A. Butcher, Beatrice City Attorney, for appellee.

Jon Bruning, Attorney General, and James D. Smith for 

amicus curiae State of Nebraska.

Wright, Connolly, Stephan, McCormack, Mille

and Cassel, JJ

Connolly,

SUMMARY

Daniel A. Meints owns an uninhabited, unfenced lot in 

the City of Beatrice, Nebraska (City), on which he kept an 

array of automobiles and motorcycles. In a bench trial, the 

county court convicted Meints of multiple violations of a 

municipal ordinance relating to unregistered motor vehicles. 

On appeal, the district court reversed Meints’ convictions 

on 2 of the 12 counts and otherwise affirmed. The Nebraska 

Court of Appeals affirmed the district court’s judgment,1 and 

1 City of Beatrice v. Meints, 21 Neb. App. 805, 844 N.W.2d 85 (2014).
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we granted Meints’ petitions for further review. These appeals 

present the following question: Does probable cause, standing 

alone, justify a warrantless search of an individual’s real property? We conclude that Fourth Amendment jurisprudence does 

not recognize a probable cause exception applicable to real 

property. But we also conclude that the City did not conduct 

a “search,” because the property invaded was an “open field.” 

Because no warrant was required, we affirm.

BACKGROUND

The City prohibits the prolonged parking of unregistered 

motor vehicles on private property. Section 16-623(a) of the 

City’s code2 provides:

It shall be unlawful for any person in charge or control 

of any private property within the city . . . to allow any 

motor vehicle which has been unregistered for more than 

twenty-one (21) days to remain upon any private property. 

Any motor vehicle allowed to remain on private property 

in violation of this subsection shall constitute a nuisance 

and shall be abated.

Section 16-623(b) states that persons who violate the ordinance 

are guilty of a misdemeanor and subject to fines, ranging from 

$100 to $500 each day the ordinance is violated.

In March 2011, a City code enforcement officer observed 

what he believed to be unregistered motor vehicles on Meints’ 

property. The officer saw numerous motor vehicles and motorcycles without license plates or vehicles that were inoperable. 

The officer did not enter Meints’ property. Instead, he took 

photographs while standing in a public street, an alley, or a 

neighbor’s property.

On that same day, Joe McCormick, a Beatrice police officer, 

was dispatched to the scene. McCormick initially observed 

the vehicles from a public street. He did not see any fencing or closed buildings on the property. McCormick testified 

that he had probable cause to believe Meints was violating 

§ 16-623 and that he entered the property without a warrant 

2 Beatrice Mun. Code, ch. 16, art. XVII, § 16-623(a) (2002).
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to investigate. While on the property, McCormick took photographs and recorded vehicle identification numbers (VINs). He 

testified that he did not enter any structure, open any door, or 

“move anything.”

McCormick returned to the property on May 23, 2011, 

and saw that the vehicles remained. Since McCormick’s first 

visit, Meints had attached a “no trespassing” sign to a tree. 

Additionally, Meints was present and told McCormick to stay 

off the property. But McCormick did not heed the request 

and entered the property without a warrant to take additional 

photographs and record VINs. McCormick cited Meints for 

violating § 16-623 and returned numerous times to issue additional citations.

The City charged Meints in county court with 12 counts of 

violating § 16-623. The 12 counts related to seven motorcycles 

and five automobiles. Meints moved to suppress the evidence 

and observations resulting from McCormick’s warrantless entry 

onto the property. The court denied the motion, reasoning that 

the property was not entitled to Fourth Amendment protection 

because it was an “open field.”

The county court found Meints guilty of all charges. Meints 

appealed to the district court, which reversed his convictions 

on two counts because of insufficient evidence but otherwise affirmed.

Meints assigned to the Court of Appeals that the county court 

erred by overruling his motion to suppress. Meints argued that 

the open fields doctrine did not apply to urban property. The 

court affirmed on a different ground: the probable cause exception to the warrant requirement.

The Court of Appeals assumed that McCormick had searched 

Meints’ real property and noted that a warrantless search is per 

se unreasonable under the Fourth Amendment. But the court 

stated that among “the warrantless search exceptions recognized by the Nebraska Supreme Court” is an exception for 

“searches undertaken with consent or with probable cause.”3

3 City of Beatrice v. Meints, supra note 1, 21 Neb. App. at 812, 844 N.W.2d 

at 92 (emphasis supplied), citing State v. Borst, 281 Neb. 217, 795 N.W.2d 

262 (2011).
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Relying on this language, the court held that the observations 

McCormick made while on a public street gave him probable 

cause to believe the vehicles were evidence of a crime and 

allowed him to enter Meints’ property without a warrant to 

gather evidence.

ASSIGNMENT OF ERROR

Meints assigns that the Court of Appeals erred by relying 

on “a mistaken statement of the law — with regard to ‘probable cause’, alone, being a recognized exception to the warrant 

requirement of the Fourth Amendment to the United States 

Constitution.”

STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress evidence based on a claimed violation of the Fourth 

Amendment, an appellate court applies a two-part standard 

of review.4 We review the trial court’s findings of historical 

facts for clear error.5 But whether those facts trigger or violate 

Fourth Amendment protections is a question of law that we 

independently review.6

ANALYSIS

Probable Cause Excep

Meints argues that probable cause—standing alone—is not 

an exception to the search warrant requirement. The City 

succinctly responds that “the jurisprudence of the State of 

Nebraska for over a decade has noted that probable cause is a 

distinct and separate exception to a warrantless search.”7 While 

both statements are correct, we have been less than precise in 

our language and must clarify the latter.

4 See State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).

5 Id.

6 Id.

7 Brief for appellee in response to petition for further review at 3.
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We begin with the constitutional text. The Fourth Amendment 

to the U.S. Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things 

to be seized.

The amendment’s language naturally divides into two parts: 

(1) a prescription that searches and seizures be reasonable 

and (2) the conditions on which a warrant may issue.8 The 

relationship between these two parts is not apparent from 

the text, which has “‘both the virtue of brevity and the vice 

of ambiguity.’”9 For example, whether a search is “unreasonable” without a warrant is a question to which a “literal 

reading of the language of the Fourth Amendment contributes little.”10

[2] The U.S. Supreme Court has resolved some of this 

ambiguity. It is now well established that “searches conducted 

outside the judicial process, without prior approval by judge 

or magistrate, are per se unreasonable.”11 And the Court has 

consistently referred to a “warrant requirement” for more 

than four decades.12 If law enforcement conducts a search 

8 See, Kentucky v. King, ___ U.S. ___, 131 S. Ct. 1849, 179 L. Ed. 2d 865 

(2011); 2 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth 

Amendment § 3.1(a) (5th ed. 2012).

9 2 LaFave, supra note 8, § 3.1(a) at 4, quoting Jacob W. Landynski, Search 

and Seizure and the Supreme Court 42-43 (1966).

10 Id.

11 Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 

(2009). See, also, Thompson v. Louisiana, 469 U.S. 17, 105 S. Ct. 409, 83 

L. Ed. 2d 246 (1984).

12 E.g., Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 

(2014); Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. 

Ed. 2d 930 (1967).
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without a warrant, it is reasonable only if it falls within a 

band of exceptions the Court has described as “specific,”13

“‘well-delineated,’”14 “carefully delineated,”15 “specifically 

established,”16 and “narrow.”17

The City is correct that we have “noted” that probable 

cause justifies a warrantless search for more than a decade. 

We have often prefaced our analysis of warrantless searches 

with a list of exceptions that includes “searches undertaken 

with . . . probable cause.”18 But our application of this “exception” has been less than clear.

For example, we held in State v. Voichahoske19 that a warrantless strip search during intake was reasonable because 

the officers had probable cause to believe the defendant possessed contraband. There, the defendant was a passenger in 

an automobile stopped by police. After a police dog indicated 

that narcotics were in the vehicle, the defendant was arrested 

and taken to a sheriff’s office. There, police strip searched 

the defendant and found contraband in and on his person. 

The defendant moved to suppress evidence stemming from 

the strip search “because his continued detention, arrest, and 

search were illegal.”20 Stating that the “warrantless search 

13 See Riley v. California, supra note 12, 134 S. Ct. at 2482.

14 See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. 

Ed. 2d 854 (1973).

15 See United States v. United States District Court, 407 U.S. 297, 318, 92 S. 

Ct. 2125, 32 L. Ed. 2d 752 (1972).

16 See Arizona v. Gant, supra note 11, 556 U.S. at 338.

17 See Flippo v. West Virginia, 528 U.S. 11, 13, 120 S. Ct. 7, 145 L. Ed. 2d 

16 (1999). See, also, State v. Green, 287 Neb. 212, 842 N.W.2d 74 (2014).

18 See State v. Borst, supra note 3, 281 Neb. at 221, 795 N.W.2d at 267. 

Accord, State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010); State 

v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008); State v. Eberly, 271 

Neb. 893, 716 N.W.2d 671 (2006); State v. Voichahoske, 271 Neb. 64, 

709 N.W.2d 659 (2006); State v. Roberts, 261 Neb. 403, 623 N.W.2d 

298 (2001). See, also, J.P. v. Millard Public Schools, 285 Neb. 890, 830 

N.W.2d 453 (2013); State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).

19 State v. Voichahoske, supra note 18.

20 Id. at 70, 709 N.W.2d at 668.
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exceptions” included “searches undertaken . . . with probable cause,”21 we held that the strip search was reasonable 

because the police “had probable cause to believe that drugs 

would be found on [the defendant].”22 But it is not clear 

whether we reasoned that probable cause justified a warrantless search, or that probable cause justified a warrantless 

arrest and the narcotics were found in a subsequent search 

incident to arrest, or that probable cause justified a warrantless arrest and security concerns justified a warrantless strip 

search during intake.23

We considered the relationship between probable cause 

and the need for a warrant again in State v. Smith.

24 There, an 

officer reached into the pocket of a person not under arrest 

and pulled out small bags containing narcotics. We stated that 

“searches justified by probable cause” are one of the “warrantless search exceptions recognized by this court.”25 We 

considered the exception’s application, but concluded that the 

officer did not have probable cause to believe that the defendant had narcotics on his person.

So, we have been less than precise. And our statement that 

probable cause, standing alone, justifies a warrantless search 

is out of step with the overwhelming weight of authority.26

In Katz v. United States,

27 the U.S. Supreme Court explained 

21 Id. at 74, 709 N.W.2d at 670.

22 Id. at 77, 709 N.W.2d at 671.

23 See, 3 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth 

Amendment § 5.3(a) and (c) (5th ed. 2012). See, also, Florence v. Board 

of Chosen Freeholders, ___ U.S. ___, 132 S. Ct. 1510, 182 L. Ed. 2d 566 

(2012).

24 State v. Smith, supra note 18.

25 Id. at 927, 782 N.W.2d at 923.

26 See, Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 

(2004); Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 

2d 828 (1961); Jones v. United States, 357 U.S. 493, 78 S. Ct. 1253, 2 L. 

Ed. 2d 1514 (1958); Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 

L. Ed 145 (1925).

27 Katz v. United States, 389 U.S. 347, 356-57, 88 S. Ct. 507, 19 L. Ed. 2d 

576 (1967), quoting Agnello v. United States, supra note 26.
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that probable cause is not a panacea for invasions of privacy 

by law enforcement:

In the absence of [judicial] safeguards, this Court has 

never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular 

crime and voluntarily confined their activities to the 

least intrusive means consistent with that end. Searches 

conducted without warrants have been held unlawful 

“notwithstanding facts unquestionably showing probable cause[.]”

Fourth Amendment jurisprudence has not strayed from this 

understanding. Put simply, “[a]n officer’s correct belief in 

the existence of probable cause does not obviate the warrant requirement.”28

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.”29 By ensuring an objective 

determination of probable cause, rather than one “‘by the officer engaged in the often competitive enterprise of ferreting out 

crime,’”30 the warrant requirement ensures that intrusions on 

privacy are not made by “random or arbitrary acts of government agents.”31 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 

28 U.S. v. Carpenter, 360 F.3d 591, 598 (6th Cir. 2004) (Gilman, Circuit 

Judge, concurring).

29 Stackhouse v. State, 298 Md. 203, 219, 468 A.2d 333, 342 (1983).

30 Riley v. California, supra note 12, 134 S. Ct. at 2482, quoting Johnson v. 

United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 2d 436 (1948).

31 Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 622, 109 S. Ct. 

1402, 103 L. Ed. 2d 639 (1989).
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reliable procedure of an after-the-event justification for 

the search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.”32

And efficiency alone is not enough to disregard the warrant 

requirement.33 Obviously, the investigation of crime would 

always be simpler if police did not need a warrant.34

[3] So, we hold that probable cause, standing alone, is not 

an exception to the search warrant requirement of the Fourth 

Amendment as applied to real property. Probable cause is, of 

course, relevant to the reasonableness of a search under the 

Fourth Amendment. For example, probable cause justifies a 

warrantless arrest35 and probable cause—in conjunction with 

other circumstances—may justify a warrantless search under 

the “plain view” and “plain feel” doctrines.36 Additionally, 

police do not need a warrant to search an automobile if there 

is probable cause to believe that it contains contraband.37

Notably, we first listed “probable cause” as one of the “recognized exceptions to the Fourth Amendment’s warrant requirement as applied to automobiles,”38 and occasionally, courts 

simply refer to a “probable cause exception” in cases involving 

automobiles.39 Here, though, the Court of Appeals applied a 

probable cause exception to real property.

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 

32 U.S. v. Martinez, 686 F. Supp. 2d 1161, 1180 (D.N.M. 2009), quoting Katz 

v. United States, supra note 27.

33 Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978).

34 Id.

35 See, e.g., State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).

36 See State v. Smith, supra note 18.

37 See, e.g., State v. Dalland, 287 Neb. 231, 842 N.W.2d 92 (2014).

38 See State v. Konfrst, 251 Neb. 214, 224, 556 N.W.2d 250, 259 (1996) 

(emphasis supplied).

39 E.g., U.S. v. Snook, 88 F.3d 605, 608 (8th Cir. 1996).
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conducted a search, it does not pass constitutional muster 

unless the City can identify an applicable exception to the 

warrant requirement.

Open Fields Doc

[4,5] But we need not consider the exceptions to the warrant requirement if there was no search. Under the test outlined 

in Justice Harlan’s concurrence in Katz v. United States,

40

a “search” under the Fourth Amendment occurs if a legitimate expectation of privacy is infringed.41 Two inquiries are 

involved. First, an individual must have exhibited an actual 

(subjective) expectation of privacy.42 Second, the expectation 

must be one that society is prepared to recognize as reasonable.43 A reasonable expectation of privacy is one with a source 

outside the Fourth Amendment, by reference either to concepts 

of real or personal property law or to understandings that society recognizes and permits.44

[6] Recently, however, the U.S. Supreme Court has said 

that Fourth Amendment rights “do not rise or fall with the 

Katz formulation.”45 A “search” also occurs if “the government gains evidence by physically intruding on constitutionally protected areas.”46 When government activity crosses 

this “simple baseline,”47 it is unnecessary to ask whether the 

government infringed the defendant’s legitimate expectation of privacy because “the Katz reasonable-expectationof-privacy test has been added to, not substituted for, the 

common-law trespassory test.”48 So, a “search” occurs if 

40 See, Katz v. United States, supra note 27 (Harlan, J., concurring); U.S. v. 

Jones, ___ U.S. ___, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012).

41 See, e.g., State v. Nelson, 282 Neb. 767, 807 N.W.2d 769 (2011).

42 Id.

43 Id.

44 See State v. Knutson, supra note 4.

45 U.S. v. Jones, supra note 40, 132 S. Ct. at 950.

46 Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 

495 (2013).

47 Id., 133 S. Ct. at 1414.

48 U.S. v. Jones, supra note 40, 132 S. Ct. at 952 (emphasis in original).
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either (1) the defendant’s legitimate expectation of privacy 

is infringed or (2) the government physically intrudes on a 

protected area.49

[7] But no “search” occurs under either the reasonable 

expectation of privacy test50 or the physical intrusion test51

if the area examined is an “open field.” The U.S. Supreme 

Court first applied the “open fields doctrine”52 in the 1924 case 

Hester v. United States.

53 There, the defendant tossed a container of “moonshine” whiskey while being chased by revenue 

agents across a field. Citing only the commentator Sir William 

Blackstone as authority, the Court announced “the special protection accorded by the Fourth Amendment to the people in 

their ‘persons, houses, papers, and effects,’ is not extended to 

the open fields.”54

After the reasonable expectation of privacy test flowered in the furrow left by Katz, some courts questioned 

whether the open fields doctrine was compatible with the 

new understanding of Fourth Amendment rights.55 In Oliver v. 

United States,

56 the court answered in the affirmative. Oliver

involved two different marijuana patches, one on a farm and 

another “in the woods.”57 In light of Katz, the Court explained 

that the open fields doctrine “may be understood as providing 

that an individual may not legitimately demand privacy for 

activities conducted out of doors in fields, except in the area 

49 See id.

50 See Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 

214 (1984). See, also, State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 

(1986).

51 See U.S. v. Jones, supra note 40.

52 See State v. Havlat, supra note 50, 222 Neb. at 558, 385 N.W.2d at 439.

53 Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 2d 898 

(1924).

54 Id., 265 U.S. at 59, citing 4 William Blackstone, Commentaries *223, 

*225-26.

55 1 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth 

Amendment § 2.4(a) (5th ed. 2012).

56 Oliver v. United States, supra note 50.

57 Id., 466 U.S. at 174.
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immediately surrounding the home.”58 The Court reasoned 

that cropland and other rural areas are not conducive to reasonable privacy expectations:

[O]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended 

to shelter from government interference or surveillance. 

There is no societal interest in protecting the privacy 

of those activities, such as the cultivation of crops, that 

occur in open fields. Moreover, as a practical matter these 

lands usually are accessible to the public and the police 

in ways that a home, an office, or commercial structure 

would not be. It is not generally true that fences or “No 

Trespassing” signs effectively bar the public from viewing open fields in rural areas.59

In response to the dissent’s argument that private activity in 

rural areas was not uncommon, the majority replied that “[o]ne 

need only think only of the vast expanse of some western 

ranches or the undeveloped woods of the Northwest to see 

the unreality of the dissent’s conception.”60 That the defendants attempted to conceal their criminal activities was irrelevant. The Court “reject[ed] the suggestion that steps taken 

to protect privacy”—such as the erection of fences or “‘No 

Trespassing’” signs—“establish that expectations of privacy in 

an open field are legitimate.”61 Furthermore, that the officers 

physically trespassed on the land did not turn their information 

gathering into a “search.”

[8] The open fields doctrine is best understood as a facet 

of the reasonable expectation of privacy test. That is, “open 

fields” are those unenclosed areas beyond the curtilage of a 

home in which the defendant has no reasonable expectation 

of privacy. Oliver stated that the doctrine is also “founded 

upon the explicit language of the Fourth Amendment,”62 in 

58 Id., 466 U.S. at 178.

59 Id., 466 U.S. at 179.

60 Id., 466 U.S. at 179 n.10.

61 Id., 466 U.S. at 182.

62 Id., 466 U.S. at 176.
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the sense that the text does not literally include “open fields.” 

The four items listed in the Amendment are central to its 

understanding,63 but the Fourth Amendment is not limited to 

literal “persons, houses, papers, and effects.” The Court has 

extended Fourth Amendment protection to areas as diverse 

as bathroom stalls,64 office buildings,65 and, famously, a telephone booth.66 Nor is the concern in Oliver for the difficulties of ad hoc factual determinations the basis of the open 

fields doctrine. Efficiency alone is not enough to dispense 

with Fourth Amendment protections.67 Instead, as we have 

explained, the open fields doctrine, and its attendant concept 

of curtilage, are “merely applications” of the rule that a search 

occurs when a reasonable expectation of privacy is invaded.68

Nor was the reasonable expectation of privacy test jettisoned 

by the U.S. Supreme Court’s renewed focus on trespass. 

Information gathering in “‘open fields’” remains “subject 

to Katz.”69

The statement in Oliver that efforts to protect privacy in 

an open field cannot make a privacy expectation legitimate 

must be understood in the context of the land involved. In 

both Hester and Oliver, the Court was considering rural areas. 

The facts in Hester are sparse, but it appears that when the 

Court referred to the land as “open fields,” it literally meant an 

open field. At the time, the phrase “open fields” was not yet a 

term of art. Similarly, Oliver involved farmland and a densely 

wooded area.70 The references in Oliver to “the cultivation of 

crops,”71 “the vast expanse of some western ranches,” “the 

63 See State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).

64 See 1 LaFave, supra note 55, § 2.4(c).

65 See id., § 2.4(b).

66 See Katz v. United States, supra note 27.

67 See Mincey v. Arizona, supra note 33.

68 State v. Ramaekers, 257 Neb. 391, 395, 597 N.W.2d 608, 612 (1999).

69 Florida v. Jardines, supra note 46, 133 S. Ct. at 1414.

70 See, Oliver v. United States, supra note 50. See, also, United States v. 

Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987).

71 Oliver v. United States, supra note 50, 466 U.S. at 179.
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undeveloped woods of the Northwest,”72 “secluded land,”73 and 

“the many millions of acres that are ‘open fields’”74 show that 

the Court “envisioned particularly rural or undeveloped land.”75

Likewise, the cases in which we have applied the open fields 

doctrine involved marijuana patches in cornfields or other pastoral settings.76

[9] Read in its context, Oliver categorically determined 

that a person cannot have a reasonable expectation of privacy 

in the “many millions of acres” of unenclosed rural land. As 

we have recognized, barbed wire fences and “no trespassing” signs are not, as a practical matter, a barrier to country trespassers:

“In the rural areas of this state it would be difficult to 

find a landowner who would believe that no person would 

enter on his open field without permission. Hunters, fishermen, and other technical trespassers are so commonly 

expected in the rural areas of this state that a failure to 

post trespassing signs is regarded by many persons as 

almost an implied permission to enter.”77

Apart from the impracticality of efforts to keep intruders out, 

the relative vastness of farms, ranches, and acreages makes 

it difficult for their owners to know if intrusions are actually occurring.

The same reasoning does not apply when we consider not 

the “many millions of acres,” but the precious fractions. Only 

an eccentric farmer would erect a privacy fence around a bean 

field, but such measures are common in urban and suburban 

areas. The relative smallness of urban and suburban lots makes 

efforts to protect privacy practical and sometimes effective. 

72 Id., 466 U.S. at 179 n.10.

73 Id., 466 U.S. at 182.

74 Id., 466 U.S. at 182 n.12.

75 O’Neal v. State, 689 So. 2d 1135, 1136 (Fla. App. 1997).

76 See, State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995); State v. Havlat, 

supra note 50; State v. Cemper, 209 Neb. 376, 307 N.W.2d 820 (1981); 

State v. Poulson, 194 Neb. 601, 234 N.W.2d 214 (1975).

77 State v. Havlat, supra note 50, 222 Neb. at 560, 385 N.W.2d at 440, 

quoting State v. Cemper, supra note 76.
Nebraska Advance She

CITY OF BEATRICE v. MEINTS 573

Cite as 289 Neb. 558

Furthermore, the urban landowner is often only yards away 

from the perimeter of his land, not several sections, as is sometimes the case in rural areas.

[10] 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,78 the front yard of an 

urban duplex,79 and the backyard of a suburban house80 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.”81 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.”82 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 

78 See, O’Neal v. State, supra note 75; State v. Stavricos, 506 S.W.2d 51 (Mo. 

App. 1974).

79 See Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007).

80 See People v. Schmidt, 168 Ill. App. 3d 873, 522 N.E.2d 1317, 119 Ill. 

Dec. 458 (1988).

81 Oliver v. United States, supra note 50, 466 U.S. at 180 n.11.

82 See id.
Nebraska Advance She

574 289 NEBRASKA REPORTS

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. 

The lot and its contents were visible from a public road to all 

who wanted to see and even to some who did not want to see 

(e.g., Meints’ neighbors). No physical barrier obstructed entry 

onto the lot. Meints could not reasonably expect that tacking 

a “no trespassing” sign to a tree would prevent others from 

viewing or walking on his land. That Meints happened to be 

present when McCormick made one of his intrusions does not 

change the character of the property or ameliorate Meints’ 

failure to make any significant efforts to ensure that it was 

private. McCormick did not physically manipulate items on 

the lot and so did not physically intrude on Meints’ “effects.” 
Nebraska Advance She

STATE v. HERRERA 575

Cite as 289 Neb. 575

Simply observing the condition of the vehicles while on the 

lot was not a “search”83 and recording the VINs was not 

a “seizure.”84

Because Meints did not in fact have a reasonable expectation of privacy in his urban lot, the land was an open field. 

Therefore, McCormick did not need a warrant because his 

information gathering was not a “search” under the Fourth 

Amendment.

CONCLUSION

There is no “probable cause exception” to the warrant 

requirement. The Court of Appeals erred by assuming that a 

search occurred and excusing the lack of a warrant because the 

officer who intruded on the land had probable cause. But, under 

the open fields doctrine, there was no “search.” So, police did 

not need a warrant to gather information on the property, and 

we affirm on that ground.

Affirmed

Heavican, C.J., not participatin

83 See United States v. Dunn, supra note 70, 480 U.S. at 305.

84 See Arizona v. Hicks, 480 U.S. 321, 324, 107 S. Ct. 1149, 94 L. Ed. 2d 347 

(1987). Accord New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 

2d 81 (1986).

State of Nebraska, appellee, v.

Carlos R. Herrera, appell

___ N.W.2d ___

Filed December 5, 2014. No. S-13-659.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the 

admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial 

discretion is involved only when the rules make discretion a factor in determining admissibility.

2. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

3. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews the 

record de novo to determine whether a trial court has abdicated its gatekeeping 

function when admitting expert testimony.