Nebraska State Constitution Article I-7

Article I-7

I-7.

Search and seizure.

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 warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Source

  • Neb. Const. art. I, sec. 7 (1875).

Annotations


1. Expectation of privacy


2. Search warrant


3. Exceptions to warrant requirement


4. Probable cause or reasonable suspicion


5. Exclusion of evidence


6. Waiver of right


7. Action by private individual


8. Seizure, what constitutes


9. Miscellaneous


1. Expectation of privacy

In Nebraska, freedom from unreasonable searches and seizures is guaranteed by U.S. Const. amend. IV and Neb. Const. art. I, sec. 7. To determine whether an individual has an interest protected by the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, sec. 7, one must determine whether an individual has a legitimate or justifiable expectation of privacy in the place subjected to canine scrutiny. Ordinarily, two inquiries are required. First, the individual must have exhibited an actual (subjective) expectation of privacy, and second, the expectation is one that society is prepared to recognize as reasonable. By using a canine to sniff for illegal drugs in a hallway outside an apartment, the police have engaged an investigative technique by which they are able to obtain information regarding the contents of a place that has traditionally been accorded a heightened expectation of privacy, and while such investigative technique may be minimally intrusive, it nevertheless implicates the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, sec. 7, and requires independent reasonable suspicion. Under the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, sec. 7, an occupant has a legitimate expectation of some measure of privacy in the hallway immediately outside his or her apartment or at the threshold of his or her home. Given such constitutional protection, before a drug-detecting canine can be deployed to test the threshold of a home, police officers must possess at a minimum reasonable, articulable suspicion that the location to be tested contains illegal drugs. State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999).

A defendant is guaranteed the right to be secure in his person, house, papers, and effects, against unreasonable searches and seizures. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).

Neither the U.S. Constitution nor the Nebraska Constitution prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of the home. State v. Trahan, 229 Neb. 683, 428 N.W.2d 619 (1988).

A person's capacity to claim the protection of this section as to unreasonable searches and seizures, like its counterpart, U.S. Const. amend. IV, depends upon whether the person who claims such protection has a legitimate expectation of privacy in the invaded place. An unreasonable search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Because the defendants had no reasonable expectation of privacy in the searched premises, they were without standing to claim a violation of U.S. Const. amend. IV in regard to the search of their former residence. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987).

The failure of an individual to secure his vehicle decreased his expectation of privacy relating to the vehicle. State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007).


2. Search warrant

Provisions in warrants allowing no-knock search warrants offend neither U.S. Const. amend. IV nor this provision. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990).

A search pursuant to a warrant is presumed valid. If police have acted pursuant to a search warrant, the defendant bears the burden of proof that the search or seizure is unreasonable; but, if police have acted without a search warrant, the State has the burden of proof that the search was conducted under circumstances substantiating the reasonableness of such search or seizure. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987).

Seizure of theater owner's films without a warrant is not justified under this provision in the absence of probable cause and exigent circumstances or some other recognized exception. State v. Skolnik, 218 Neb. 667, 358 N.W.2d 497 (1984).

A warrant to search a house also covers the land around the house and associated outbuildings used by the inhabitants of the house. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).

This section not violated where law enforcement officers learning of attempted arson from trespassers inspected premises without entry or search to ascertain that no fire was in progress before obtaining search warrant. State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969).

Law permitting search warrant to be issued upon information and belief is not in violation of this section. Watson v. State, 109 Neb. 43, 189 N.W. 620 (1922).

The right to a search warrant is in no instance authorized until a showing, on oath, of probable cause and particular description is given of place or premises to be searched and thing to be seized. Peterson v. State, 64 Neb. 875, 90 N.W. 964 (1902).


3. Exceptions to warrant requirement

Under this provision, it is reasonable for the police to search the personal effects of a person under lawful arrest as part of the routine procedure incident to booking and jailing the suspect. There is no requirement that such inventory policies be established in writing. State v. Filkin, 242 Neb. 276, 494 N.W.2d 544 (1993).

A valid search as incident to an arrest without a warrant necessarily depends on the legality of the arrest itself. State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989).

Seizure of property which is in plain sight in vehicle's completely open trunk while driving on a public thoroughfare is lawful under the plain view doctrine provided there is probable cause to associate the property which is in plain view with criminal activity. State v. Holman, 221 Neb. 730, 380 N.W.2d 304 (1986).

Items not listed on a search warrant but in plain view of officers searching an area described in the warrant for items listed on the warrant may be seized. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).

A condition of the appellant's probation requiring him to submit to warrantless searches contributed to the rehabilitation process and was reasonable and therefore, constitutional. State v. Colby, 16 Neb. App. 644, 748 N.W.2d 118 (2008).

The fact that the appellant's probation officer was not present during a warrantless probation search of the appellant's person and vehicle did not render the search unreasonable. State v. Colby, 16 Neb. App. 644, 748 N.W.2d 118 (2008).

A search without a warrant of a readily mobile, unoccupied vehicle in a residential area was justified under the automobile exception to the warrant requirement where police officers had probable cause to believe that the search would uncover evidence of a crime. State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007).

Law enforcement officers may search the entirety of a motor vehicle, including closed compartments and baggage, as a search incident to a lawful arrest. A warrantless search of containers within a motor vehicle is allowed where there exists probable cause to believe that contraband is located in the vehicle. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).


4. Probable cause or reasonable suspicion

Finding the necessary quantum of individualized suspicion only after a stop occurs cannot justify the stop. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

Time of day and reports of crime in the area will not, in and of themselves, justify a stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

Although of limited usefulness, a court, in determining whether an officer had reasonable, articulable suspicion justifying continued detention of vehicle occupants following a traffic stop, may consider, with other factors, evidence that the occupants exhibited nervousness. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. But in determining whether the government's intrusion into a motorist's Fourth Amendment interests was reasonable, the question is not whether the officer issued a citation for a traffic violation or whether the State ultimately proved the violation. An officer's stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation has occurred. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Evidence that a motorist is returning to his or her home state in a vehicle rented from another state is not inherently indicative of drug trafficking when the officer has no reason to believe the motorist's explanation is untrue, but a court may nonetheless consider this factor when combined with other indicia that drug activity may be occurring, particularly the occupants' contradictory answers regarding their travel purpose and plans or an occupant's previous drug-related convictions. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Factors that would independently be consistent with innocent activities may nonetheless amount to reasonable suspicion to detain a motorist following a traffic stop when considered collectively. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Generally, the factors supporting an officer's reasonable suspicion of illegal drug activity when coupled with a well-trained dog's positive indication of drugs in a vehicle will give the officer probable cause to search the vehicle. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

In determining whether an officer had reasonable, articulable suspicion justifying continued detention of a motorist following a traffic stop, a court can consider, as part of the totality of the circumstances, the officer's knowledge of the motorist's drug-related criminal history. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Reasonable suspicion to detain a motorist following a traffic stop entails some minimal level of objective justification for detention. Reasonable suspicion is something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. If an officer has probable cause to stop a violator, the stop is objectively reasonable and any ulterior motivation is irrelevant. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

To detain a motorist for further investigation past the time reasonably necessary to conduct a routine investigation incident to a traffic stop, an officer must have a reasonable, articulable suspicion that the motorist is involved in criminal activity unrelated to the traffic violation. Reasonable suspicion for further detention must exist after the point that an officer issues a citation. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Whether a police officer has a reasonable suspicion to detain a motorist for further investigation past the time reasonably necessary to conduct a routine investigation incident to a traffic stop based on sufficient articulable facts depends on the totality of the circumstances. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

The test to determine whether an investigative stop is justified is whether the police officer has a reasonable suspicion based on articulable facts which indicate that a crime has occurred, is occurring, or is about to occur and that the suspect may be involved. An officer is not required to wait until a crime has occurred before making an investigatory stop. It is sufficient if there is an objective manifestation that the person stopped is, has been, or is about to be engaged in criminal activity. State v. Rein, 234 Neb. 917, 453 N.W.2d 114 (1990).

When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect has committed a crime, the officer has probable cause to arrest without a warrant. State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989).

The eyewitness report of a citizen informant may be self-corroborating; the fact that a citizen voluntarily came forward with information is itself an indicium of reliability. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).

An investigatory stop and search is not constitutionally permissible where the officer has no reasonable suspicion a person is committing, has committed, or is about to commit a crime. State v. Colgrove, 198 Neb. 319, 253 N.W.2d 20 (1977).

In a "stop and frisk" situation, if after a patdown, officers had nothing more than a suspicion that vehicle contained controlled substances they did not have probable cause to arrest occupants or search vehicle. State v. Aden, 196 Neb. 149, 241 N.W.2d 669 (1976).

An officer does not have probable cause to effectuate an arrest without a warrant where the officer relies upon erroneous information provided from records maintained by Nebraska's Department of Motor Vehicles as the basis for the arrest. State v. Hisey, 15 Neb. App. 100, 723 N.W.2d 99 (2006).


5. Exclusion of evidence

The good faith exception to the exclusionary rule applied to an officer’s stop of a vehicle, which was made in reliance upon incorrect information from the vehicle’s registration, because the error originated with the county treasurer’s office and a county treasurer is not an adjunct of law enforcement. State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 (2013).

Miranda warnings and right-to-refuse advisements are not a cure-all and will not, by themselves, purge the taint. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

The relevant factors for attenuation will depend upon the facts of a particular case but include (1) the proximity between the actual illegality and the evidence sought to be suppressed, (2) the presence of intervening factors, and (3) the flagrancy of the governmental misconduct involved in the case. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

When the State seeks to submit evidence as sufficiently attenuated from a previous Fourth Amendment violation, an appellate court reviews the trial court’s findings of historical facts for clear error but reviews de novo the court’s ultimate attenuation determination based on those facts. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

The exclusionary rule is inapplicable in child protection proceedings. In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647 (2005).

Once a person is lawfully arrested, if the search is within the scope of a search which may be conducted incident to a lawful arrest, then the evidence obtained from the search is properly admitted. State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).

Evidence obtained pursuant to an arrest by an officer who was without statutory or common-law authority to arrest should be suppressed. State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991).

Evidence obtained as the result of an illegal arrest without a warrant is inadmissible in a criminal prosecution. State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211 (1963).

Evidence obtained as the result of an unlawful search is not rendered inadmissible. Haswell v. State, 167 Neb. 169, 92 N.W.2d 161 (1958).

Seizure by officer of property beyond scope and terms of search warrant, is a violation of this section; nevertheless articles seized and information procured may be used as evidence. Billings v. State, 109 Neb. 596, 191 N.W. 721 (1923).

Trooper's pat-down search, performed for an improper purpose, was unconstitutional, and evidence found was inadmissible. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000).

Trooper's warrantless search of defendant's car, glove box, and items strewn about the scene of a vehicle accident lacked probable cause, and evidence found was inadmissible. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000).


6. Waiver of right

Consent to search given in very close temporal proximity to the official illegality is often a mere submission or resignation to police authority. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

The right to be free from search and seizure may be waived by consent of a citizen as long as such consent is given freely and is not the product of a will overborne. State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997).

The right to be free from an unreasonable search and seizure may be waived by the consent of the citizen. State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992).

The right to be free from unreasonable search and seizure can be waived by the citizen's consent. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

A consensual search by its very definition is circumscribed by the extent of the permission given, as determined by the totality of the circumstances. State v. Rathjen, 16 Neb. App. 799, 751 N.W.2d 668 (2008).

A suspect's general consent to a search of his pickup truck authorized a police officer to search a locked toolbox in the bed of the pickup truck. State v. Rathjen, 16 Neb. App. 799, 751 N.W.2d 668 (2008).

The right under the federal and state Constitutions to be free from an unreasonable search and seizure may be waived by the consent of the citizen. Consent is an exception to the probable cause requirement of the Fourth Amendment; however, a consensual search may not exceed the scope of the consent given. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness, or in other words, what a typical reasonable person would have understood by the exchange between the officer and the suspect. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

Where a police officer had indicated, prior to searching the defendant's person, that he was looking for drugs and weapons, a reasonable person would have believed that consenting to the officer's request to search the vehicle would include the officer's examination of the contents of unlocked closed containers within the vehicle, and thus the defendant's authorization of the officer's search extended to the safety glasses bag lying in plain view on the front seat, in which bag the officer discovered marijuana and methamphetamine. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

Whether one who consents later objects to an ongoing search is a significant inquiry determining whether there is a limitation placed on the scope of the consent that has been granted. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).


7. Action by private individual

The constitutional protection against unreasonable searches and seizures proscribes only governmental action and is inapplicable to searches or seizures effected by private individuals. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

Under both the fourth amendment to the U.S. Constitution and this provision, whether a search by a private person is actually a search by the State depends on whether the private person must be regarded as having acted as an instrument or agent of the State. A private person's status as a state agent in a search is not restricted to a search ordered, requested, or initiated by a state official, but may include a search which is a joint endeavor between a private person and a state official. Some conduct by the police in advancement or inducement of a search by a private person must be proven to make out a joint endeavor. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).

If a search is a joint endeavor involving a private person and a state or government official, the search is subject to the constitutional safeguard against an unreasonable search, prohibited by the fourth amendment to the U.S. Constitution and this provision. State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989).


8. Seizure, what constitutes

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of this provision. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

No new arrest occurred when correctional authorities allowed police officers to interview a person being held in jail on other charges, and thus there was no constitutional basis to challenge the officers' seizure of the person when he attempted to leave the interviewing room. State v. Green, 240 Neb. 639, 483 N.W.2d 748 (1992).

A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

A person is seized by police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his or her freedom of movement. Tyler v. Kyler, 15 Neb. App. 939, 739 N.W.2d 463 (2007).

A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. Tyler v. Kyler, 15 Neb. App. 939, 739 N.W.2d 463 (2007).

A citizen is not seized under the Fourth Amendment to the U.S. Constitution and this provision of the Nebraska Constitution when a police-citizen encounter involves no restraint of the citizen's liberty, but, rather, noncoercive questioning regarding the status of the citizen's operator's license. State v. Hisey, 15 Neb. App. 100, 723 N.W.2d 99 (2006).

A seizure for purposes of this provision requires either a police officer's application of physical force to a suspect or a suspect's submission to an officer's show of authority. State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673 (1993).


9. Miscellaneous

Taking prisoner's shoes while confined in jail and introducing same in evidence against him does not contravene prohibition against unreasonable seizure. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).

The protections of sections 5 and 7 of this article intertwine when films are the "things" seized. State v. Skolnik, 218 Neb. 667, 358 N.W.2d 497 (1984).

Sections 29-3301 to 29-3307 do not violate privilege against self-incrimination, are constitutional, and apply to physical evidence, not to oral communications or testimony. State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976).

Statements and admissions by a defendant in proceedings under sexual psychopath law were not obtained in violation of this section. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 (1965).

Statute requiring a warehouseman to furnish tax assessor a list of property stored in warehouse was not violative of this section. United States Cold Storage Corp. v. Stolinski, 168 Neb. 513, 96 N.W.2d 408 (1959).

Filiation proceedings are essentially civil in character. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

A citizen has the right to keep existence of his private papers and effects secret from the world unless required by due process of law to make disclosure. Clarke v. Neb. Nat. Bank, 49 Neb. 800, 69 N.W. 104 (1896).

The continued detention of a citizen by a law enforcement officer for approximately 52 minutes after a traffic stop and while awaiting the arrival of a drug detection dog—which detention was based upon a reasonable, articulable suspicion that the citizen was involved in additional criminal activity—was reasonable where the investigative methods employed during the detention were reasonable and the scope and intrusiveness of the detention were reasonable. State v. Kehm, 15 Neb. App. 199, 724 N.W.2d 88 (2006).

Under section 84-106, a deputized railroad security officer is constrained by the Fourth Amendment like any sheriff or police officer. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

This provision does not foreclose an officer from making observations that lead to a reasonable suspicion of criminal activity during a caretaking encounter. State v. Smith, 4 Neb. App. 219, 540 N.W.2d 375 (1995).