dissenting.
The majority has provided an investigative field day for law enforcement searches without a warrant.
The Havlat farm, where Terry Havlat’s parents resided, lies *568in parts of adjacent sections, Section 3 on the east and Section 4 on the west, with the farmstead in the northern part of Section 4. Farming operations, conducted by Terry Havlat in partnership with his father since 1977, included crops, hay production, and cattle operations. South of the farmstead, in the southeast quarter of Section 4, was a milo field. East of the farmstead was an alfalfa field, in the northwest quarter of Section 3, and pasture located in the southwest quarter of that same section. Woods and a creek, separating the alfalfa field from the pasture, ran east along the quarter section line to a north-south county road at the east side of the Havlat farm. The farm had perimeter fences and several “no trespassing” signs conspicuously posted. The wooded creek area provided shelter for cattle and calving operations in winter.
On the morning of July 26, 1983, for Trooper Heiden, an investigator in the division of drug control of the Nebraska State Patrol, there were “arrangements made to do some aerial flying of places where the possibility existed of being marijuana fields.” That morning, from a State Patrol aircraft at an altitude between 500 and 700 feet, Heiden took several photographs of the Havlat farm and especially focused on the wooded creek area southeast of the farmstead. While photographing and aerially viewing the area without binoculars, Heiden noticed “green vegetation” growing around a haystack located in the southwest corner of the alfalfa field, near the west boundary of Section 3.
When the aerial photographs were developed and examined by him on July 27, Heiden “felt that [the depicted vegetation near the haystack] was marijuana.” On July 28 Heiden, and another patrol investigator who saw the aerial photographs, decided “to hike into the area in question and check out the photographs” and to “determine whether, if those plants were marijuana, whether they were volunteer or planted.” The two investigators drove to the east side of the Havlat farm, parked their car on the county road, observed a “no trespassing” sign, without Havlat permission crawled through a perimeter fence, and started their trek westward in the woods, with their destination being the haystack area a quarter mile away and not visible from the road. After walking west “close to a half a *569mile,” the investigators arrived at the haystack depicted in the aerial photographs. There is no explanation given for the troopers’ walking a “half a mile” in the woods to reach the haystack area located a quarter mile from the road — a site fixed with precision in the aerial photographs. Notwithstanding their somewhat nomadic approach, the investigators finally arrived at the haystack and verified that the vegetation, observed by Heiden on July 26, was cultivated marijuana. The State Patrol obtained additional aerial photographs on July 29, and that same day three patrol investigators, again without Havlat permission, entered the farm from the county road on the east, walked to the haystack, and then, for an “hour or two,” searched for marijuana growing outside the immediate vicinity of the haystack.
On August 2 investigators of the State Patrol entered the Havlat farm for the third time, without permission, and set up a “surveillance camera” near the haystack. Investigators, still without Havlat permission, entered the premises on August 4 for the fourth time and changed film in the surveillance camera, which was finally removed by patrol investigators on August 5 during the fifth entry without permission. On August 8 Heiden and another investigator, lacking permission from Havlat, entered the farm again to set up personal surveillance, perhaps to catch Terry Havlat green-handed. The troopers carried their surveillance equipment, which included a sawed-off shotgun. Near the haystack, one trooper placed the shotgun under a tree, and the troopers momentarily left their equipment to reconnoiter and photograph the area. When they returned to the location of their equipment, the troopers observed “[a] subject sitting with our equipment, with a dog holding a shotgun that belonged” to one of the troopers. Perhaps Havlat, accompanied by his dog, was holding the shotgun. In any event, one of the troopers directed Terry Havlat to “put the shotgun down.” Havlat complied, supplied his identification to the troopers, and was arrested. The troopers later removed marijuana plants for evidence. Based on an affidavit containing information obtained through the various nonconsensual entries between July 28 and August 8, the county court, on August 9, issued a warrant to search Terry *570Havlat’s town residence, and on September 21 issued a search warrant pertaining to the wooded creek area of the Havlat farm.
Skeptics might say that the itinerant investigators, in walking a half mile to reach the haystack pinpointed by aerial photographs at a location 1,320 feet west of the county road, were on a general, investigatory expedition rather than a realistic route to the haystack. Others might surmise that, given additional time and the intensity of persistent pedestrian traffic by law enforcement on the Havlat farm, the entire question about the search would become moot on account of the investigators’ prescriptive right-of-way acquired on the premises. However, the question concerning admissibility of the evidence obtained by the investigators is not moot and must be addressed.
As expressed by the U.S. Supreme Court in Katz v. United States, 389 U.S. 347, 350-51, 353, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967):
[T]he correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase “constitutionally protected area.” . . . [An] effort to decide whether or not a given “area,” viewed in the abstract, is “constitutionally protected” deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. . ..
. . . [A]nd once it is recognized that the Fourth Amendment protects people — and not simply “areas” — against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
Concurring in Katz, Justice Harlan stated: “[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Id. at 361.
The majority of this court has greatly emphasized and adopted the view expressed in Oliver v. United States, 466 U.S. *571170, 179, 104 S. Ct. 1735, 80 L.Ed. 2d 214 (1984): Because open fields “are accessible to the public and the police in ways that a home, an office, or commercial structure would not be . . . the asserted expectation of privacy in open fields is not an expectation that ‘society recognizes as reasonable.’ ”
In Oliver the U.S. Supreme Court also observed: “It is clear, however, that the term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage.” 466 U.S. at 180 n.ll. This leads to the constitutional converse that the phrase “open fields” may not include any occupied or developed area outside the curtilage.
The more plausible test in determining whether a particular site is a constitutionally protected area is found in the two-part test suggested by Justice Harlan in Katz v. United States, supra: (1) Has the person exhibited a reasonable expectation of privacy? If the preceding is answered in the affirmative, (2) Has such expectation of privacy been violated by unreasonable governmental intrusion? Such two-part test has been adopted by state courts answering questions about law enforcement’s search and seizure of citizens. See, State v. Brady, 406 So. 2d 1093 (Fla. 1981); People v. Edwards, 71 Cal. 2d 1096, 458 P.2d 713, 80 Cal. Rptr. 633 (1969); State v. Byers, 359 So. 2d 84 (La. 1978).
In its attempt at an upright position, the majority opinion leans on State v. Cemper, 209 Neb. 376, 307 N.W.2d 820 (1981), adopted by two judges of this court, with the remaining five judges concurring in the result. In Cemper the real estate involved was not posted, was accessible through at least one fence-gate which was never closed, and was land “owned by one company, of which [Cemper] was an employee, and farmed by another company, with which [Cemper] had no connection, in a rural area and on land on which no one resided.” 209 Neb. at 381, 307 N.W.2d at 823. Even seeking strained similarities, one is compelled to conclude there is a drastic difference between the facts in Cemper and the present case. The statement in State v. Cemper, supra at 382, 307 N.W.2d at 823, “Hunters, fishermen, and other technical trespassers are so commonly expected in the rural areas of this state that a failure to post trespassing signs is regarded by many persons as almost an *572implied permission to enter,” is quixotic, a questionable concept for constitutional law, and an inaccurate characterization of the situation encountered by one without consent hunting and emerging from a field of cornstalks to find a scowling landowner who does not view the interloper as a recreational licensee.
In the present case the Havlat land was entirely fenced private property, accessible only with consent or by trespass, was conspicuously posted with “no trespassing” signs, and constituted an occupied and developed farm unit. Short of constructing some opaque and impenetrable structure around the farm, it is difficult to envision what other measures could have been reasonably utilized to assert and preserve the right of privacy on the Havlat land. Havlat demonstrated a subjective expectation of privacy protectable against unreasonable government intrusion. Acquisition of physical evidence in the present case is the result of an invasion upon and violation of Havlat’s reasonable expectation of privacy, an unreasonable search, and should have been excluded.
There is, however, an additional reason for excluding the physical evidence in the present case. Although the majority euphemistically calls the officers’ entries “warrantless intrusions,” the investigators’ six entries were, nonetheless, trespasses.
A person commits second degree criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(a) Actual communication to the actor; or
(b) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(c) Fencing or other enclosure manifestly designed to exclude intruders.
Neb. Rev. Stat. § 28-521(1) (Reissue 1979).
Conviction for violation of the foregoing criminal statute is punishable by imprisonment, a fine, or both imprisonment and fine. Neb. Rev. Stat. § 28-106(1) (Cum. Supp. 1984).
In construing the Nebraska Constitution, art. I, § 7, “The right of the people to be secure in their persons, houses, papers, *573and effects against unreasonable searches and seizures shall not be violated,” we should not unquestioningly follow an analysis tendered by the U.S. Supreme Court regarding its construction of the fourth amendment to the U.S. Constitution. As the majority recognizes, this court is not inextricably bound to federal decisions which provide less restriction on searches and seizures than may be appropriate for the citizens of Nebraska. We still have the capacity, as well as the obligation, to exercise independence in determining any exclusionary rule regarding admission of evidence questioned under the provisions of the Nebraska Constitution. When called upon to construe the Nebraska Constitution, this court should not exhibit some pavlovian conditioned reflex in an uncritical adoption of federal decisions as the construction to be placed on provisions of the Nebraska Constitution analogous to the U.S. Constitution’s.
The conduct of law enforcement, in obtaining physical evidence in this case, involved repeated trespasses and, therefore, violations of the criminal code of Nebraska. A judicial rule for exclusion of evidence tainted by violation of the criminal code would undoubtedly deter future illegal conduct by law enforcement in investigations or gathering evidence. As a more fundamental consideration, by allowing admission of evidence obtained through law enforcement’s illegal activity, courts encourage continued violation of law as a method of obtaining evidence to convict an accused, and “no distinction can be taken between the Government as prosecutor and the Government as judge.” Olmstead v. United States, 277 U.S. 438, 470, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Holmes, J., dissenting). At that point the imperative of judicial integrity evaporates. As expressed by Justice Brandéis, also dissenting in Olmstead v. United States, supra at 485: “To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” When law enforcement has contempt for laws of the people, inevitably people will have contempt for enforcement of laws.
*574Professor George E. Dix has pointed out:
If state courts are to fulfill their responsibility as state tribunals, it will be necessary that they acknowledge state law issues as ones requiring independent analysis. Supreme Court analyses and results are, of course, available as potential models. In view of the nature of the issues presented by state law exclusionary sanction claims, however, state courts are obligated to exercise great care before deferring to these models.
Dix, Exclusionary Rule Issues as Matters of State Law, 11 Am. J. Crim. L. 109,148 (1983).
If this court views the rights of Nebraska’s citizens only in the light of some federal and less protective decisions, then, truly, we will see such rights “through a glass, darkly.”