dissenting.
I must respectfully dissent from the majority in this case. I do so because I believe that the facts of this case do not justify our saying that the defendant’s right to be free of unreasonable searches and seizures under either the fourth amendment to the U.S. Constitution or Neb. Const, art. I, § 7, was not violated. I am persuaded in part by the dissent of Justice Marshall in Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984), the case relied upon in part by the majority in this case. In his dissent in Oliver, Justice Marshall notes at 185-86:
The first ground on which the Court rests its decision is that the Fourth Amendment “indicates with some precision the places and things encompassed by its protections,” and that real property is not included in the list of protected spaces and possessions. Ante, at 176. This line of argument has several flaws. Most obviously, it is inconsistent with the results of many of our previous decisions, none of which the Court purports to overrule. For example, neither a public telephone booth nor a conversation conducted therein can fairly be described as *565a person, house, paper, or effect; yet we have held that the Fourth Amendment forbids the police without a warrant to eavesdrop on such a conversation. Katz v. United States, 389 U. S. 347 (1967). Nor can it plausibly be argued that an office or commercial establishment is covered by the plain language of the Amendment; yet we have held that such premises are entitled to constitutional protection if they are marked in a fashion that alerts the public to the fact that they are private. Marshall v. Barlow’s, Inc., 436 U. S. 307, 311 (1978); G. M. Leasing Corp. v. United States, 429 U. S. 338, 358-359 (1977).
It is difficult for me to perceive how we can, on the one hand, write out open fields surrounded by a locked fence and posted signs reading “No Trespass,” and, on the other, read in public telephone booths and commercial places of business.
While the majority in Oliver v. United States, supra at 179, concludes that “open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance,” Oliver, nevertheless, teaches us:
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. [Citation omitted.] In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment [citation omitted], the uses to which the individual has put a location [citation omitted], and our societal understanding that certain areas deserve the most scrupulous protection from government invasion [citation omitted]. These factors are equally relevant to determining whether the government’s intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy and is therefore a search proscribed by the Amendment.
Id. at 177-78.
As the majority in this case has done, I too would look to this court’s earlier decision in State v. Cemper, 209 Neb. 376, 307 *566N.W.2d 820 (1981). I would not reach the same conclusion, however, regarding the holding of Cemper. In my view Cemper has not written out the open field from the protection of either the fourth amendment to the U.S. Constitution or Neb. Const, art. I, § 7. Rather, State v. Cemper, supra at 382, 307 N.W.2d at 823, indicates:
The fourth amendment protects persons but it does not protect them in every circumstance and in every place, public or private. Ownership and possessory rights in “places” are still important in determining whether or not a particular person has a legitimate expectation of privacy in a particular place. The open fields doctrine is not completely dead. Its reincarnated substance is still a vital part of the broader constitutional concept of freedom from unreasonable searches and seizures.
Having said that, we then went on in Cemper to conclude that, under the circumstances in Cemper, the defendant could not have a legitimate expectation of privacy in his particular open field. The facts in Cemper, however, were that while there was a fence surrounding the area, there were unlocked, open gates and no signs posted. That is not the evidence presented to us in this case. Here, the evidence is that the officers had to crawl through a perimeter fence in order to get into the field. To suggest that a person who has placed a locked fence around a field and posted the fence with no trespassing signs has no expectation of privacy is to simply ignore the facts of the matter. I am simply not prepared to hold that under the provisions of Neb. Const, art. I, § 7, no one in Nebraska may have an expectation of privacy in an open field which is tightly fenced, locked, and signed against trespassers. I cannot imagine what more a person could do to evidence an expectation of privacy.
In my view, under the Nebraska Constitution, before a court can determine whether a citizen’s right to privacy has been violated, a court must examine the facts to determine whether a person challenging a search or seizure has standing, i.e., a reasonable expectation of privacy. After having concluded that Havlat has shown that he had a reasonable expectation of privacy, I would then examine the facts and conclude that the search in the instant case was unreasonable and, thus, Havlat’s *567rights were violated. Neither the fourth amendment to the federal Constitution nor Neb. Const, art. I, § 7, bars all searches and seizures; they merely bar unreasonable searches and seizures. The most common and the most reliable method of showing that a search was reasonable is by proving at trial that a search warrant had properly been procured before the search. Thus, “a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable unless the police can show that it falls within one of the carefully designated exceptions based on the presence of ‘exigent circumstances.’” State v. Weible, 211 Neb. 174, 179, 317 N.W.2d 920, 923 (1982).
In the present case the evidence discloses that the officers flew over the area and took photographs. When the photographs were developed, the officers testified, they “felt that [the depicted vegetation near the haystack] was marijuana.” There is nothing in the record to indicate that with that information the officers could not have obtained a warrant to search the area; there were no exigent circumstances shown here. By requiring officers to first obtain a warrant before intruding into a citizen’s privacy, the Constitutions of both the United States and the State of Nebraska contemplate that some impartial arbitrator in the form of a magistrate will be afforded an opportunity to determine whether there is a reasonable basis for invading a citizen’s otherwise protected privacy. By not doing so in this case, the State conducted an unreasonable search, in violation of both federal and state Constitutions.
While it is apparent that we must do all we can to combat the ever-growing problem created by drugs within our society, I am nevertheless reminded of the words of Sir Thomas More, who, after being told by Roper that he would cut down every law in England to get after the Devil, said, “And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?”