State v. Havlat

357 N.W.2d 464 (1984)

218 Neb. 602

STATE of Nebraska, Appellant, v. Terry HAVLAT, Appellee.

No. 84-540.

Supreme Court of Nebraska.

November 2, 1984.

Randy R. Stoll, Seward County Atty., Seward, for appellant.

Kirk E. Naylor, Jr., Lincoln, for appellee.

WHITE, Justice.

This is the second appearance before me as a single judge from the order of the district court for Seward County. The facts are recited at State v. Havlat, 217 Neb. 791, 351 N.W.2d 86 (1984), and will not be repeated here.

At issue here is whether Neb. Const. art. I, § 7, prohibits open field, warrantless searches and whether the fruits of such a search must be suppressed. The issue is one of first impression in this state. We have not yet considered, except obliquely, whether independent of the U.S. Constitution the exclusionary rule is rooted in our own Constitution.

Also at issue, though not argued, is whether the responsibility of a single judge of this court is to apply in cases of first impression his personal view of the desired rule, or to exercise an informed judgment as to the probable results if the entire court considered the issue.

The second approach seems to be the more sound and prudent. I am not convinced that a majority of this court would adopt an exclusionary rule based on the Nebraska Constitution relating to open field searches. Therefore, I conclude that the order of the district court suppressing the seized evidence must be reversed.

REVERSED.