Nebraska Criminal & Trial Lawyers
Consent and the Reasonable Expectation of Privacy

Consent and the Reasonable Expectation of Privacy

Nebraskans have the right to be free from warrantless searches and seizures by government officials when they have a "reasonable expectation of privacy."  According to article I, section 7, of the Nebraska State Constitution, persons are afforded protection from "unreasonable searches and seizures" by the government just as they are protected under federal Constitutional law. A search or seizure is unreasonable if it cannot be justified when the law is applied to the factual circumstances surrounding the event.

Generally, the police are required to obtain a warrant if they wish to search private property. Whether the place to be searched is private under the law law is determined, in part, by whether a personal actually believes the place private. This is not the end of the inquiry, however. Once established, a person's expectation of privacy must be reasonable as measured by society's expectations. This means that society must be "prepared to recognize" a person's actual expectation of privacy as "acceptable."

Typically, when persons consent to the request of government officials to search, they will not have a reasonable expectation of privacy because the right is deemed to be waived. A noteworthy exception from a 2012 Nebraska Supreme Court decisions stands out.  

In 2010, during a response to a complaint of unlawful firework use, Omaha police officers searched a nearby vehicle. They subsequently issued a citation to a minor, Ashley, for marijuana possession. The officers stated that they discovered a small amount of marijuana after she gave them consent to search. However, the Nebraska Supreme Court disagreed. The Court determined consent had not been given by Ashley because her consent actually constituted a "mere submission or resignation to police authority." The Court found that the Omaha police officers had no right to stop the vehicle because there was no reasonable suspicion of wrongdoing in connection with the fireworks complaint. It unlawful for the police officers to attempt to justify an unrelated search by show of authority when there was no actual connection to the place to be searched.

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