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City of Beatrice v. Meints

Supreme Court of Nebraska

December 5, 2014


Petitions for further review from the Court of Appeals, MOORE, PIRTLE, and BISHOP, Judges, on appeal thereto from the District Court for Gage County, DANIEL E. BRYAN, JR., Judge, on appeal thereto from the County Court for Gage County, STEVEN B. TIMM, Judge.

Page 411

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.



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[289 Neb. 559] Connolly, J.


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 [289 Neb. 560] 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.


The City prohibits the prolonged parking of unregistered motor vehicles on private property. Section 16-623(a) of the City's code[2] 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

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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 [289 Neb. 561] 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] [289 Neb. 562] 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.


Meints assigns that the Court of Appeals erred by relying on ...

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