Tuesday, October 18, 2005
1 year sentence for cruelty and neglect of horses affirmed; Court of Appeals affirms lower court on finding no 4th Amendment violation for warrantless seizure of horses in open field Defendant leased. § 28-1012(1) (Cum. Supp. 2004) which allows law enforcement to seek warrant to seize animals is not required in all instances, but subject to 4th Amendment guidelines. IN this case, "plain fields" exception applies and there is no privacy expectation; Trial court had jurisdiction to enter nunc pro tunc order on reimbursement amount even though defendant has appealed. State v. Ziemann, 14 Neb. App. 117 October 18, 2005. No. A-04-1483. Appeal from the District Court for Thurston County, Darvid D. Quist, Judge, on appeal thereto from the County Court for Thurston County, Douglas Luebe, Judge. Judgment of District Court affirmed in part, and in part remanded for further proceedings. NO expectation of privacy in open field, giving Defendant benefit of the doubt that leased field gives her 4th amendment standingCheryl does not own or reside at the farmstead where her two horses were seized. Cheryl bases her claim of a "legitimate expectation of privacy in the premises" on the fact that she leased the grass area on the farmstead for a dollar--although she did not establish whether this was per day, week, month, or year. And, the only evidence that any such lease existed is Cheryl's testimony. But, assuming there was such a lease, Cheryl was leasing only open land, which is subject to the open fields exception to the warrant requirement. Under the open fields doctrine, "'[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.'" State v. Cody, 248 Neb. 683, 695, 539 N.W.2d 18, 26 (1995), quoting Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The boarding of two horses at an abandoned farmstead for a dollar clearly is not the sort of intimate activity sheltered by the Fourth Amendment. To put it another way, the search is not unreasonable and does not require a warrant. Therefore, Cheryl did not have standing to challenge the search of the farmstead. Neb. Rev. Stat. § 28-1012(1) (Cum. Supp. 2004), which states: "Any law enforcement officer who has reason to believe that an animal has been abandoned or is being cruelly neglected or cruelly mistreated may seek a warrant authorizing entry upon private property to inspect, care for, or impound the animal." is discretionary However, the statute only says "may" seek a warrant, and Cheryl cites no authority that this statute either imposes a higher standard on law enforcement officers than is otherwise established by longstanding principles of search and seizure or makes it mandatory that a warrant be secured. And, we can think of no reason why the statute would do so. Thus, we read "may seek" as purely discretionary and as not effecting other doctrines of search and seizure, such as the plain view doctrine. The Nebraska Supreme Court stated the "plain view doctrine" in State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003) as if (1) a law enforcement officer has a legal right to be in the place from which the object subject to the seizure could be plainly viewed, (2) the seized object's incriminating nature is immediately apparent, and (3) the officer has a lawful right of access to the seized object itself. Case remanded to re-determine restitutionWe find that the district court committed plain error when it vacated the county court's order nunc pro tunc dated July 15, 2004, since the county court did have jurisdiction to enter such order. However, remembering that the county court has ordered three different amounts of reimbursement and that the presentence investigation report and sentencing hearing are insufficient to establish what the reimbursement by Cheryl really should be, we remand the cause to the district court with directions for it to remand the matter to the county court to hold such proceedings as are necessary as to make an accurate determination of the amount of reimbursement owed by Cheryl to Siouxland Rescue and Lown and to enter the corresponding order.
Posted by stan_sipple at 1:10 PM