Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/23/2024 09:11 AM CDT
- 435 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
State of Nebraska, appellee, v.
Kay E. Anderson, appellant.
___ N.W.3d ___
Filed August 23, 2024. No. S-22-846.
1. Convictions: Appeal and Error. In an appeal of a criminal conviction,
an appellate court reviews the evidence in a light most favorable to
the prosecution.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews independently of the trial court’s determination.
3. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from the trial and from the hearings on the motion to suppress.
4. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion. When deciding appeals from
criminal convictions in county court, the Nebraska Court of Appeals and
Nebraska Supreme Court apply the same standards of review that are
applied to decide appeals from criminal convictions in district court.
5. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determination, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or reweigh
- 436 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
the evidence presented, which are within a fact finder’s province for
disposition. Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
6. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
7. Search Warrants: Affidavits: Probable Cause. A warrant authorizing
a search must be based on probable cause as established in an affidavit
and application in support of the warrant.
8. Search Warrants: Probable Cause: Words and Phrases. Probable
cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found in the
item to be searched.
9. Search Warrants: Affidavits: Probable Cause: Police Officers and
Sheriffs: Presumptions: Proof. There is a presumption of validity with
respect to affidavits supporting applications for search warrants, but that
presumption may be overcome, and a search warrant may be invalidated,
if the defendant proves the affiant officer knowingly and intentionally,
or with reckless disregard for the truth, included in the affidavit false or
misleading statements that were material to establishing probable cause.
Courts extend the same rationale to misleading omissions of material
information from warrant affidavits.
10. Search Warrants: Affidavits: Probable Cause. Omissions in an affidavit used to obtain a search warrant are considered misleading when the
omitted information tends to weaken or damage the inferences which
can logically be drawn from the facts as stated in the affidavit.
11. Search Warrants: Affidavits: Probable Cause: Police Officers and
Sheriffs: Evidence: Proof. If the defendant proves, by a preponderance
of the evidence, that the affiant knowingly and intentionally, or with
reckless disregard for the truth, included a false or misleading statement or omitted information material to a probable cause finding, then
the court examines whether the evidence obtained from the warrant and
search was fruit of the poisonous tree. To do this, the court reexamines
the affidavit after deleting the false or misleading statement and including the omitted information, and it determines whether, viewed under
the totality of the circumstances, it still establishes probable cause. If
this reexamination shows that the affidavit does not establish probable
cause, then the search warrant is deemed void and the fruits of the
search are excluded.
- 437 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
12. Search Warrants: Affidavits: Probable Cause: Appeal and Error.
An appellate court reviews for clear error the trial court’s findings as
to whether the affidavit supporting the warrant contained falsehoods or
omissions and whether those were made intentionally or with reckless
disregard for the truth. However, an appellate court reviews de novo the
determination that any alleged falsehoods or omissions were not necessary to the probable cause finding.
13. Administrative Law: Constitutional Law: Search Warrants.
Administrative inspections of residential buildings to ascertain compliance with health and safety codes are significant intrusions upon the
interests protected by the Fourth Amendment, and residents who do not
consent to such an inspection have a constitutional right to insist that the
inspectors obtain a warrant, absent exigent circumstances.
14. Administrative Law: Criminal Law: Probable Cause: Search
Warrants. The probable cause necessary to support issuance of an
administrative inspection warrant is clearly different from the probable
cause necessary to support issuance of a criminal search warrant.
15. Administrative Law: Probable Cause: Search Warrants. Probable
cause to issue an inspection warrant exists if reasonable legislative or
administrative standards for conducting an area inspection are satisfied
with respect to a particular building.
16. ____: ____: ____. Probable cause to issue an administrative inspection
warrant does not require a showing that a particular dwelling contains
violations of the minimum standards proscribed by the code being
enforced.
17. Administrative Law: Public Policy: Probable Cause: Search
Warrants. The administrative inspection warrant procedure is designed
to guarantee that a decision to search private property is justified by a
reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted inspection warrant.
18. Administrative Law: Probable Cause: Search Warrants: Evidence.
Probable cause to justify issuance of an administrative inspection warrant can be based either on a showing of specific evidence of an existing violation or on a more general showing that reasonable legislative
or administrative standards for conducting an area inspection have
been satisfied.
19. Administrative Law: Constitutional Law: Public Policy: Probable
Cause: Search Warrants. Although there may be sound public policy
reasons for requiring inspectors to show that consent to inspect was
refused before seeking an administrative inspection warrant, such a
- 438 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
prerequisite is neither compelled by the Fourth Amendment nor necessary to establish probable cause.
20. Constitutional Law: Search and Seizure: States. Not every violation of a state law restricting searches is sufficient to show a Fourth
Amendment violation.
21. Constitutional Law: Statutes: Evidence. Absent a constitutional violation, a court will normally suppress evidence obtained in violation of a
rule or statute only if the governing law provides that remedy.
22. Constitutional Law: Statutes: Search and Seizure: Evidence. In the
absence of a constitutional violation, the failure to comply with the
ministerial step of seeking consent to inspect under Neb. Rev. Stat.
§ 29-832 (Reissue 2016) before seeking issuance of an inspection warrant is a technical irregularity that, absent a statute providing otherwise,
does not require suppression.
23. Judgments: Appeal and Error. A correct result will not be set aside
merely because the wrong reasoning was applied.
24. Ordinances: Statutes: Appeal and Error. When analyzing a municipal
ordinance, Nebraska courts apply the same rules of construction as those
applied to statutory analysis.
25. Criminal Law: Statutes. A penal statute is to be given a sensible construction in the context of the object sought to be accomplished, the
evils and mischiefs sought to be remedied, and the purpose sought to
be served.
26. Ordinances: Courts. When interpreting an ordinance, a court’s analysis
begins with the text. When the words are plain, direct, and unambiguous, courts are to give the language its plain and ordinary meaning.
27. ____: ____. It is not within the province of the courts to read meaning
into an ordinance that is not there or to read anything direct and plain
out of an ordinance.
Appeal from the District Court for Douglas County, Leigh
Ann Retelsdorf, Judge, on appeal thereto from the County
Court for Douglas County, Grant A. Forsberg, Judge.
Judgment of District Court affirmed.
Jason M. Bruno, Robert S. Sherrets, and James L. Schneider,
of Sherrets, Bruno & Vogt, L.L.C., for appellant.
Kevin J. Slimp, Omaha City Prosecutor, and Lindsey L.
Bitzes for appellee.
- 439 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
After a bench trial in county court, Kay E. Anderson was
found guilty of several misdemeanor violations of a city property maintenance code and was sentenced to probation. He
appealed his convictions to the district court, which affirmed.
Anderson appeals again, arguing that evidence of the code
violations should have been suppressed because it was discovered while executing an invalid inspection warrant. He
also argues the evidence at trial was insufficient to support his
convictions.
We moved this matter to our docket primarily to address
the validity of the inspection warrant, which presents an issue
of first impression. Although our reasoning differs in some
respects from that applied below, we affirm.
I. BACKGROUND
1. Apartment Complex
This appeal involves the prosecution of multiple municipal
code violations discovered at a residential apartment complex
in Omaha, Nebraska. The complex, commonly referred to
as “Yale Park,” consists of 13 buildings with approximately
100 residential units and several hundred tenants. At all relevant times, the record owner of Yale Park was “AB Realty,
LLC.” AB Realty’s articles of incorporation list Anderson
as its registered agent, manager, and organizer and as one of
two members.
At trial, Anderson’s wife testified that she was the sole
member of AB Realty and that Anderson had been removed
as a member for “estate planning” purposes but was still the
manager. In September and October 2018, Anderson and his
wife were also residents of Yale Park, living in apartment No.
24. Many of the other tenants of Yale Park are described in
the record as refugees.
- 440 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
On August 31, 2018, Omaha’s chief housing inspector,
accompanied by others, including a refugee coordinator from
a local nonprofit organization, met with Anderson in the office
area of one of the Yale Park buildings. The purpose of the
meeting was to address concerns about unsafe living conditions and poor building maintenance at Yale Park. During that
meeting, Anderson indicated that “he owned the apartment,”
and when the refugee coordinator shared specific maintenance
requests from tenants that had not been addressed, Anderson
replied that he “personally was being a little bit lackadaisical
about the maintenance requests” but that “he would do a better
job.” Anderson also commented that the living conditions at
Yale Park still provided more opportunity for the refugee tenants than they had in their countries of origin.
2. Inspection Warrant
A few weeks later, on September 18, 2018, Omaha’s chief
housing inspector applied for an inspection warrant for Yale
Park. Because Anderson’s appeal challenges the validity of the
inspection warrant, we summarize the statutory requirements
governing such warrants in Nebraska before discussing the
facts surrounding the application, issuance, and execution of
the inspection warrant at issue in this case. We examine the
constitutional requirements for inspection warrants later in
the opinion.
(a) Statutory Requirements for
Inspection Warrants
In 1969, the Nebraska Legislature enacted a series of statutes
governing the issuance of administrative inspection warrants 1
in response to the U.S. Supreme Court’s decision in Camara
v. Municipal Court. 2 That case announced the new rule that
1
See Neb. Rev. Stat. §§ 29-830 to 29-835 (Reissue 2016).
2
Camara v. Municipal Court, 387 U.S. 523,
87 S. Ct. 1727,
18 L. Ed. 2d
930 (1967). Accord See v. City of Seattle,
387 U.S. 541,
87 S. Ct. 1737,
18
L. Ed. 2d 943 (1967) (holding that rule announced in Camara also applies
to inspections of commercial property).
- 441 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
inspections of residential buildings for compliance with health
and safety codes must be conducted pursuant to an inspection
warrant, absent consent or exigent circumstances. The stated
purpose of Nebraska’s statutory scheme was “to provide a
procedure which will meet the requirements laid down by the
Supreme Court” 3 in Camara.
Section 29-830 defines an inspection warrant as “an order
in writing in the name of the people, signed by a judge of a
court of record, directed to a peace officer . . . and commanding him to conduct any inspection required or authorized by
state or local law or regulation relating to health, welfare, fire
or safety.” Section 29-833 provides that inspection warrants
“shall be issued only by a judge of a court of record upon
reasonable cause, supported by affidavit describing the place
and purpose of inspection.” And § 29-832 states, “Inspection
warrants shall be issued only upon showing that consent to
entry for inspection purposes has been refused. In emergency
situations neither consent nor a warrant shall be required.”
(Emphasis supplied.) Anderson’s challenge to the validity of
the inspection warrant is based exclusively on the emphasized
language above, which we will refer to as the “prior refusal”
provision of § 29-832.
(b) Inspection Warrant for Yale Park
On September 19, 2018, the chief housing inspector applied
for an inspection warrant for Yale Park. His affidavit in support stated that on September 14, he received “code violation
complaints detailing major health and safety violations on 84
out of the 100 units” at Yale Park. The affiant further stated
that he attended various community meetings in June, July,
and August 2018 at which he “learned that the [r]efugees . . .
at Yale Park are living in conditions that are not safe and [are]
unhealthy and that the owner of the property is not responsive
to the repairs and needs of the residents.”
3
Introducer’s Statement of Purpose, L.B. 703, Judiciary Committee, 80th
Leg., 1st Sess. (Mar. 3, 1969).
- 442 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
The affidavit stated that several refugee advocacy groups
had obtained permission from the tenants at Yale Park to
conduct informal inspections “of most of the 100 units.” The
purpose of such inspections was to identify possible health and
safety code violations and to educate the tenants on “how to
file proper complaints.” According to the affidavit, “hundreds
of code violations” were observed inside tenant units, including holes in ceilings and roofs; gas leaks; inoperable appliances; broken furnaces and air conditioners; broken windows
and doors; water leaks and plumbing problems, including no
running water; “electrical panels being used as light switches
for entire apartment units”; and various health issues, including “rodents, bed bugs, roaches, maggots [and] mold.” The
affidavit also stated that in recent weeks, the Omaha metropolitan utilities district had to shut off the natural gas to four
separate units at Yale Park due to gas leaks.
The chief housing inspector averred that he and others had
met personally with the “owner, . . . Anderson,” to discuss
living conditions at Yale Park and recounted that in that meeting, Anderson admitted he had been “very lackadaisical” in
completing tenant work orders. Anderson also told inspectors
he “gives the Refugees a better way of living than they are
used to” and he “keeps his rent low and has a waiting list of
potential tenants so he does not care if tenants leave.” The
affidavit stated that due to the severity and number of potential code violations reported by tenants, the chief housing
inspector was requesting a search warrant for all 100 units
at Yale Park. The affidavit concluded by stating, “The complaints received[,] if found to be accurate and real, are worthy of immediate vacate orders” to remove tenants from the
buildings until “the entire structure is repaired” up to standard
under the Omaha Municipal Code (OMC).
Later the same day, a county court judge issued an inspection warrant for all areas of Yale Park. The warrant included
an express finding that, based on the supporting affidavit, there
was reasonable cause to believe that Yale Park was “being
- 443 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
occupied in violation of [OMC] sections dealing with property
maintenance [and] building and other structural codes,” that
the owner had “failed to comply with” the OMC, and that
the property posed “a public health hazard.” The warrant also
stated “the City of Omaha has been unable to obtain consent
from the owner’s representative, . . . Anderson, to enter the
grounds . . . for inspection purposes,” although no averments
to that effect were contained in the supporting affidavit. The
warrant authorized peace officers to enter all areas of Yale
Park, during daytime hours, to conduct any inspection authorized or required by state or local law or regulation relating
to health, welfare, fire, or safety and included authority to
“breach locked doors or gates if necessary” and to photograph
or videotape evidence of violations found.
On September 20, 2018, seven Omaha housing inspectors
executed the inspection warrant at Yale Park. Inspectors discovered approximately 2,500 separate violations of the OMC,
and the violations were documented and photographed. Due to
conditions observed during the inspection, including a bedbug
infestation, all Yale Park residents were immediately removed
from the complex and relocated pending repairs. Anderson,
however, was allowed to be on the Yale Park property daily
from 7 a.m. to 5 p.m. to complete necessary repairs.
(c) Notice of Violations and
Correction Order
As a result of the code violations discovered at Yale Park,
housing inspectors issued a series of written violation notices
and correction orders. Because Anderson challenges the sufficiency of the evidence regarding those notices and orders,
we set out the relevant OMC provisions before summarizing
the evidence.
(i) Notice Requirements Under OMC
Omaha Mun. Code, ch. 48, art. I, § 48-61 (2003), provides,
“Whenever the code official determines that there has been
a violation of [the OMC] or has grounds to believe that a
- 444 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
violation has occurred, notice shall be given to the owner
or the person or persons responsible therefore [sic].” Omaha
Mun. Code, ch. 48, art. I, § 48-12(a) (2003), provides that “the
owner or the owner’s designated agent shall be responsible for
the maintenance of buildings, structures and premises.”
Omaha Mun. Code, ch. 48, art. I, § 48-63 (2003), sets out
the authorized methods for serving violation notices to the
owner or persons responsible and provides that “[s]uch notice
shall be deemed to be properly served if a copy thereof is: (1)
Delivered personally [or] (2) Sent by certified or first-class
mail addressed to the last-known address[.]” If a notice is
returned as not delivered, OMC § 48-63 allows it to be served
by posting a copy “in a conspicuous place in or about the
structure affected by such notice.”
Omaha Mun. Code, ch. 48, art. I, § 48-62 (2015), governs
the form and content of the required notice and, as relevant
here, requires that a violation notice
(1) Be in writing.
(2) Include a description of the real estate sufficient for
identification.
(3) Include a specific statement of all violations presently known, including the code sections violated.
(4) Include a correction order allowing a reasonable
time to make the repairs and improvements required to
bring the dwelling unit or structure into compliance with
the provisions of [the OMC].
OMC § 48-62 further provides that “[o]rdinarily,” a reasonable
period of time to make repairs “shall be the periods prescribed
in Table 48-62(4)” of the OMC, but that “such time can be
increased or decreased if reasonable in light of the health or
safety concerns presented by the violation.” The violations at
issue on appeal all involved “mechanical, plumbing, or electrical” issues as categorized in the table in OMC § 48-62(4),
which provides that the initial notice for such violations should
allow 30 days for repair; it also authorizes inspectors to grant
a total of two additional 30-day extensions.
- 445 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
(ii) Notices Issued for Yale Park
Between September 26 and October 9, 2018, Omaha housing inspectors issued multiple written violation notices that,
collectively, described approximately 2,000 code violations
at Yale Park. Each notice described the violations within a
single building, and all notices were sent via first-class mail
to “AB REALTY LLC[,] 2400 N 34 AVE #24[,] OMAHA,
NE 68111.” It is undisputed that this mailing address was the
apartment at Yale Park where Anderson and his wife had last
resided. None of the notices were returned as undelivered,
and at trial, Anderson’s wife admitted the violation notices
were received.
Each violation notice included a description of the property
and a specific statement of the alleged code violations, including the OMC sections that applied. For simplicity, we will
refer to these as the “underlying code violations.” As relevant
to the issues on appeal, the violation notices included correction orders directing that the listed violations must be abated
no later than 30 days from the date of the notice, and further
directing that the property must be maintained “in compliance with the [OMC].” The notices also stated, “Any person
directly affected by this notice may file an appeal with the
Property Maintenance Appeals Board” and set out the procedure for doing so. The record shows that Anderson filed an
administrative appeal of the violation notices, and the appeals
board eventually allowed him additional time to remedy the
underlying code violations at Yale Park. However, the OMC
provides that an administrative appeal to Omaha’s property
maintenance appeals board “shall not stay the criminal prosecution of any violation of any section of [the OMC].” 4
3. Followup Inspections and Notices
After the expiration of the 30-day abatement period set
out in the first set of correction orders, an Omaha housing
4
Omaha Mun. Code, ch. 48, art. I, § 48-102 (2008).
- 446 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
inspector conducted a followup inspection at Yale Park. The
housing inspector spoke with Anderson, who told the inspector that “no repairs had been made yet.”
Housing inspectors then issued a second set of violation
notices with correction orders dated between October 30 and
November 30, 2018. Those notices were also sent via first-class mail addressed to “AB REALTY LLC” at Anderson’s
last-known address at Yale Park. The second set of correction
orders provided an additional 30 days to abate the underlying
code violations identified in the original notices.
After the second 30-day abatement period expired, an
inspector conducted another followup inspection at Yale Park,
which again showed that none of the required repairs had
been started. Housing inspectors then issued a third set of
violation notices with correction orders, dated December 17,
2018, through January 2, 2019, and again sent them via first-class mail addressed to “AB REALTY LLC” at the same Yale
Park address. The third set of correction orders provided an
additional 30 days to abate the underlying code violations
identified in the original notices. Additionally, letters were
sent that stated in part:
During the next reinspection, if progress is seen and
work is completed in a timely and workmanlike manner,
citations may not be issued and an extension to abate the
remaining violations may be granted. However, if progress is not made to abate the remaining violations, criminal citations will be issued.
Pursuant to the relevant extensions granted in the second
and third set of correction orders, the latest date for abating
the underlying code violations at Yale Park was February 2,
2019. On February 27, an Omaha housing inspector, accompanied by Anderson, inspected the interior and exterior of one
of the Yale Park buildings. Anderson told the inspector it was
“the building he had started repairs on.” At trial, this inspector testified that while inspecting the building, he observed
and photographed underlying code violations that were (1)
- 447 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
first discovered and documented when executing the inspection warrant approximately 5 months earlier, (2) identified
in all the violation notices and correction orders, and (3) still
uncorrected.
4. Misdemeanor Criminal Charges
On March 1, 2019, the State filed a criminal complaint
in the county court for Douglas County charging Anderson
with 99 counts of violating Omaha Mun. Code, ch. 48, art.
I, § 48-53 (2015). Each of the counts corresponded to a different residential unit in Yale Park. Anderson was ultimately
convicted of just 4 of the 99 counts, and this opinion generally
recounts the evidence relating to only those 4 convictions.
OMC § 48-53 is titled “Prosecution of violation,” and it
provides in part:
Any person who knowingly fails to comply with a section of [the OMC] or with a notice of violation or order
served in accordance with [the OMC] for a period of at
least 90 days after such service shall be deemed guilty of
a misdemeanor and be punished as provided in section
1-10 of [the OMC].
Under Omaha Mun. Code, ch. 1, § 1-10 (1980), misdemeanor
code violations are punishable by a fine not to exceed $500,
imprisonment not to exceed 6 months, or both such fine and
imprisonment. The complaint alleged that Anderson violated
OMC § 48-53 by unlawfully failing to comply with a section
of Omaha’s property maintenance code or by failing to comply with a notice of violation or order served in accordance
with that code. 5 The complaint was later amended to include
5
See, generally, Neb. Rev. Stat. § 14-415 (Reissue 2022) (authorizing
cities of metropolitan class to institute any appropriate action to prevent
unlawful maintenance or use of building or structure in violation of
municipal ordinance, and making it misdemeanor for any owner, general
agent, lessee, tenant, architect, builder, contractor, or “any other person” to
assist in such violation or to “maintain[] any building or premises in which
any such violation shall exist”).
- 448 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
updated references to the applicable OMC sections corresponding to the underlying code violations. Anderson entered not
guilty pleas to all 99 counts.
Thereafter, Anderson moved several times to withdraw his
not guilty pleas so he could file a motion to quash challenging,
among other things, the constitutionality of OMC § 48-53. The
county court denied Anderson’s requests to withdraw his pleas.
Because he does not assign error to those rulings on appeal
before this court, we do not address them further.
5. Motions to Suppress
Anderson filed two successive motions to suppress evidence
of the underlying code violations discovered while executing
the inspection warrant in this case. His motions did not assert
there was insufficient probable cause to issue the warrant;
instead, Anderson asserted the inspection warrant was invalid
because officials had not complied with the statutory prerequisite in § 29-832 that such warrants “shall be issued only upon
showing that consent to entry for inspection purposes has been
refused.” The court held evidentiary hearings on both suppression motions. Anderson challenges both rulings on appeal, and
we address them in chronological order.
(a) First Motion to Suppress
Anderson’s first motion to suppress asserted the inspection
warrant was invalid because the affidavit “misled [the] Court
into believing that consent was requested and refused” when,
in reality, “the conditions precedent to issuance required by
. . . § 29-832” had not been satisfied. The motion asserted
that the failure to comply with the prior refusal provision in
§ 29-832 rendered the inspection warrant “unlawful, unauthorized, unconstitutional, and void” and required suppression of all evidence discovered as a result of execution of
the warrant.
- 449 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
At the suppression hearing, the chief housing inspector testified and copies of the inspection warrant and supporting affidavit were received. In response to questioning by the State,
the housing inspector generally testified to the veracity of the
factual allegations contained in his affidavit and application for
inspection warrant. He also testified that before applying for
the warrant, he had been shown photographs taken by refugee
advocates who had been allowed inside the tenants’ apartments
at Yale Park, and he believed the photographs were consist
ent with the numerous written code violation complaints he
received and referenced in his affidavit.
On cross-examination, the inspector admitted that before
applying for the inspection warrant, he had neither personally
asked any of the Yale Park tenants for consent to inspect their
apartments nor asked Anderson “or anybody at AB Realty”
for consent to inspect. The housing inspector explained that
when he drafted the proposed inspection warrant that was
submitted to and signed by the judge, he used a template with
boilerplate language about refusal of consent.
Based on this evidence, Anderson argued that the inspection warrant was constitutionally invalid and that suppression
was the appropriate remedy because the chief housing inspector’s affidavit “misled” the court into believing that consent
was requested and refused when it was not. In response, the
State argued the housing inspector had not deliberately misled
the court about refusal of consent, emphasizing “there was
no misstatement in the affidavit itself, only an unintended
error in the boilerplate language” used to draft the proposed
warrant. The State also argued that even though consent had
not been requested or refused, the constitutional validity of
the inspection warrant turned on whether it was supported by
probable cause. And because the inspection warrant was supported by probable cause, the State argued, suppression was
not an appropriate remedy. Additionally, the State argued that
the good faith exception applied and that Anderson lacked
standing to challenge the validity of the inspection warrant,
- 450 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
because he had no reasonable expectation of privacy in residential units leased to others.
In a written order, the county court granted Anderson’s
motion to suppress. It found he had standing to challenge the
validity of the inspection warrant because he was “a property
owner of a multi-residential unit complex” and was actively
managing and maintaining the complex and living in one of
the units. The court expressed uncertainty about whether the
language of § 29-832 required refusal of consent by all the
individual tenants at Yale Park or by just Anderson, but concluded it was not necessary to decide that issue because the
evidence showed that no one had been asked for, or refused,
consent to inspect. Based on the failure to show any prior
refusal under § 29-832, the court determined the inspection
warrant was “invalid.” It declined to apply the good faith
exception to the exclusionary rule and suppressed “all information, evidence, photos, notes, and the like” obtained during
execution of the inspection warrant.
(b) Interlocutory Appeal of
First Suppression Ruling
The State was granted leave to seek immediate review of
the suppression order in the district court. 6 In that interlocutory
appeal, the State did not contest the county court’s determination that noncompliance with the prior refusal provision in
§ 29-832 rendered the inspection warrant invalid. Instead, the
State argued the county court erred in finding that Anderson
had standing to challenge the validity of the inspection warrant at all, at least as it pertained to residential property leased
to others.
The district court agreed with the State that Anderson did
not have a reasonable expectation of privacy in residential
units leased to others and, citing cases to that effect from other
6
See Neb. Rev. Stat. §§ 29-824 to 29-826 (Reissue 2016).
- 451 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
jurisdictions, 7 reversed the suppression order as it pertained to
evidence discovered in leased units. The district court affirmed
the suppression of evidence discovered in the unit where
Anderson and his wife resided, and it then remanded the matter
back to the county court.
(c) Second Motion to Suppress
After remand, Anderson filed what he titled a “Renewed
Motion to Suppress Inspection Warrant” in the county court.
Like the first motion, the renewed motion asserted the inspection warrant was rendered invalid due to noncompliance with
§ 29-832. The State objected to taking up suppression a second time and argued the district court’s order was statutorily
binding under § 29-824. 8
Over the State’s objection, the county court held an evidentiary hearing on the renewed motion to suppress. At that
hearing, Anderson’s wife testified that Anderson was an agent
of AB Realty and the person “in charge” of managing Yale
Park. She said Anderson was responsible for “repairs, inspections, [and] maintenance” for the entire apartment complex,
including the leased residential units, adding: “I mean, he
mows the lawns. He fixes the laundry. He repairs anything
that needs repairing. He replaces windows that are broken. He
7
See, e.g., State v. Houghtaling, 326 Conn. 330,
163 A.3d 563 (2017)
(holding when owner leases property to another, owner loses expectation
of privacy in property); State v. Smith,
656 S.W.2d 882 (Tenn. Crim. App.
1983) (holding general rule that tenant, not landlord, has expectation of
privacy in leased premises, unless lessor has specifically reserved rights
of possession). Accord
Camara, supra note 2, 387 U.S. at 540 (noting that
“inspectors entered the public portion of the [residential] building with the
consent of the landlord, through the building’s manager,” and emphasizing
that no one claimed manager’s consent alone was sufficient to authorize
inspection of leased unit).
8
See § 29-824(2) (providing that State may appeal county court ruling on
motion to suppress to district court, that “upon any trial on the general
issue thereafter the parties and the trial court shall be bound by such
order,” and that “[u]pon conviction after trial the defendant may on appeal
challenge the correctness of the order by the judge”).
- 452 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
paints. He fixes cabinets. He fixes refrigerators. He moves the
refrigerators in and out. Fixes stoves. He just does anything
that’s needed.” Anderson’s wife also testified that the lease
agreements authorized Anderson to access the leased units for
purposes of maintenance and inspections.
Anderson argued this evidence showed he had a reasonable
expectation of privacy in the residential units leased to others
and thus had standing to seek suppression of the evidence discovered in those units. The county court disagreed. In a written
order, the court found the additional evidence showed only
that AB Realty owned Yale Park and that Anderson was the
agent responsible for maintenance at Yale Park. It concluded
such evidence was not sufficient to show that Anderson had a
reasonable expectation of privacy in the residential units that
were owned by his principal and leased to others. Based on
this reasoning, the court held that Anderson still lacked standing to contest the validity of the inspection warrant “as to the
individual units.”
After the suppression rulings, the State dismissed 10 counts
in the operative amended complaint and the matter proceeded
to trial on the remaining 89 counts.
6. Trial and Judgment of Conviction
In March 2021, a 5-day bench trial was held. Fifteen witnesses testified, and hundreds of exhibits were received. In
addition to the evidence already described, there was evidence
detailing the conditions at Yale Park, the underlying code violations observed when executing the inspection warrant, the
violation notices and correction orders issued, and Anderson’s
response to those notices and orders. Anderson did not testify.
When evidence of the underlying code violations was offered,
Anderson objected and renewed his motions to suppress. The
court overruled the objections.
At the conclusion of all the evidence, the State argued it
had met its burden of proving beyond a reasonable doubt that
Anderson knowingly violated OMC § 48-53 as alleged in all
- 453 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
89 counts. It pointed to evidence proving the underlying code
violations at Yale Park, and it argued the evidence showed that
Anderson either owned or was the person responsible for maintenance at Yale Park, that notice of all underlying code violations had been served in accordance with the OMC, and that
for a period of at least 90 days after such service, Anderson
knowingly failed to comply with the notices or the correction orders.
Anderson argued the State had failed to prove that he knowingly violated OMC § 48-53. He argued, among other things,
that the evidence showed the violation notices were not served
properly, that the violation notices were not directed to him
personally, and that the correction orders did not afford him
a reasonable amount of time to correct the violations. In support of the latter argument, Anderson pointed to testimony
by several witnesses that they did not think all 2,000 code
violations at Yale Park could be corrected in 30 days, or even
in 90 or 120 days. Anderson also emphasized testimony that
sometime after February 2019, Omaha’s property maintenance
appeals board granted his request for additional time to complete repairs of the underlying code violations at Yale Park,
and that by the time of trial in 2021, all required repairs had
been completed.
In a 26-page order, the county court began by identifying the material elements the State needed to prove beyond
a reasonable doubt to establish a violation of OMC § 48-53.
The court generally concluded that in addition to proving that
Yale Park was within the Omaha city limits and thus subject to
the OMC, the State had to prove, with respect to each count,
that (1) the alleged code violation existed at Yale Park, (2)
notice of such code violation was served in accordance with
the OMC, (3) Anderson was either the owner of Yale Park
or a person responsible for maintenance of the premises, and
(4) Anderson knowingly failed to comply with the notice of
violation or correction order for a period of at least 90 days
after service.
- 454 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
On the first element, the court found the evidence was sufficient to prove the underlying code violations in 81 of the
89 counts. On the second element, the court found the State
had proved that violation notices and correction orders were
served in accordance with the OMC as to all but three counts.
On the third element, the court found the State had proved
that Anderson was an agent of AB Realty, was the manager
of Yale Park, and was the person responsible for maintenance
at Yale Park. And on the fourth element, requiring the State
to prove that Anderson knowingly failed to comply with the
violation notices and correction orders for a period of at least
90 days after service, the court found the State met its burden
only as to counts X, XI, XV, and XVII of the amended complaint. Each of those four counts pertained to underlying code
violations that the housing inspector specifically testified
were still uncorrected during the reinspection on February
27, 2019, which occurred more than 90 days after the violation notices and correction orders had been served. As to all
remaining counts, the court found the evidence was largely
circumstantial and not sufficiently convincing to “support a
finding that the State had met its burden.”
The county court therefore found Anderson guilty of violating OMC § 48-53 on counts X, XI, XV, and XVII only,
and not guilty on all remaining counts. The court sentenced
Anderson to a 2-year term of probation, after which Anderson
filed a timely appeal to the district court. The State did not
cross-appeal.
7. District Court Appeal
On direct appeal to the district court, Anderson assigned 55
errors, including the errors he assigns on appeal to this court.
In a 51-page order, the district court found no error or abuse
of discretion in any of the county court’s determinations and
affirmed the convictions. As appropriate, we discuss some of
the district court’s reasoning later in our analysis.
Anderson filed this timely appeal, which we moved to our
docket on our own motion.
- 455 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
II. ASSIGNMENTS OF ERROR
Anderson assigns, consolidated and restated, (1) that the
district court erred in affirming the denial of his motions to
suppress and (2) that the evidence was insufficient to support his convictions for knowingly violating OMC § 48-53,
because (a) there was insufficient evidence that the violation
notices and correction orders were properly served on anyone, (b) the violation notices and correction orders were not
directed to Anderson personally and pertained to property
he did not own, and (c) the notices and correction orders did
not afford Anderson a reasonable amount of time to correct
the violations.
III. STANDARD OF REVIEW
[1] In an appeal of a criminal conviction, an appellate
court reviews the evidence in a light most favorable to the
prosecution. 9
[2] When reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 10
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 11
[3] When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers
all the evidence, both from the trial and from the hearings on
the motion to suppress. 12
[4] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
9
State v. Hammond, 315 Neb. 362,
996 N.W.2d 270 (2023).
10
State v. Dixon,
306 Neb. 853,
947 N.W.2d 563 (2020).
11
Id.
12
Hammond, supra note 9.
- 456 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
its review is limited to an examination of the record for error
or abuse of discretion. 13 When deciding appeals from criminal
convictions in county court, the Nebraska Court of Appeals
and Nebraska Supreme Court apply the same standards of
review that are applied to decide appeals from criminal convictions in district court. 14
[5] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction. 15 In making this determination,
an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations,
or reweigh the evidence presented, which are within a fact
finder’s province for disposition. 16 Instead, the relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. 17
IV. ANALYSIS
When considering Anderon’s various assignments of error,
we necessarily confine our analysis to the four counts of which
he was convicted. We begin by addressing Anderson’s assignment that the lower courts erred in overruling his motions to
suppress. Because neither party raises the issue on appeal, we
do not address the procedural propriety of Anderson’s renewed
motion to suppress, and instead, we assume without deciding
that both suppression motions are properly before us.
13
State v. Buol, 314 Neb. 976,
994 N.W.2d 98 (2023).
14
Id.
15
Id.
16
Id.
17
Id.
- 457 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
1. Motions to Suppress
Both of Anderson’s suppression motions asserted that the
inspection warrant was rendered constitutionally invalid and
legally invalid because the inspector failed to comply with the
prior refusal provision in § 29-832 and, on that basis, sought
to suppress evidence of all code violations discovered in Yale
Park. A defendant who seeks to suppress evidence obtained
under a search warrant has the burden of establishing that the
warrant is invalid so that evidence secured thereby may be
suppressed. 18 We think it is appropriate to apply the same rule
to a defendant who seeks to suppress evidence obtained under
an inspection warrant.
Based on the evidence adduced at the suppression hearings, both the county court and the district court found that
inspectors failed to ask anyone at Yale Park for consent to
inspect the premises before applying for the inspection warrant and that no one had refused to give such consent. We find
no clear error in this historical finding. We also understand
both courts to have concluded—without specifically analyzing whose consent would have allowed inspectors to conduct
a lawful warrantless inspection of Yale Park—that the failure
to seek anyone’s consent resulted in a violation of § 29-832.
For purposes of this appeal, we likewise assume, without
expressing an opinion about whose consent inspectors must
seek under § 29-832, that the failure to request consent from
anyone results in a violation of the prior refusal provision in
§ 29-832. And because the State does not argue that the affidavit’s description of the conditions at Yale Park would have
supported application of the “emergency situations” exception
in § 29-832, we do not consider that possibility.
Both the county court and the district court appear to
have also concluded that failure to comply with the prior
refusal provision in § 29-832 rendered the inspection warrant
18
State v. Thomas, 267 Neb. 339,
673 N.W.2d 897 (2004), abrogated on
other grounds, State v. Rogers, 277 Neb. 37,
760 N.W.2d 35 (2009).
- 458 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
constitutionally invalid, and neither party challenges that conclusion on appeal. Instead, their appellate arguments focus
primarily on whether the lower courts correctly determined
that Anderson lacked a reasonable expectation of privacy in the
residential units leased to others and therefore lacked standing
to challenge the constitutional validity of the warrant.
But whether a violation of § 29-832 renders an inspection warrant constitutionally invalid presents a question of
law that an appellate court must review independently of the
trial court’s determination. 19 This court has not previously
addressed whether the constitutional validity of an inspection
warrant is affected by a violation of the prior refusal provision
in § 29-832; nor have we addressed whether suppression is an
appropriate remedy for such a violation.
To do so now, we begin by recalling the principles that
govern the suppression of evidence when a warrant is deemed
constitutionally invalid. Then we review the origins and objectives of the requirement in § 29-832 that inspection warrants
“shall be issued only upon showing that consent to entry for
inspection purposes has been refused” and consider whether
a violation of that provision renders an inspection warrant
constitutionally invalid.
(a) Principles Governing Invalid
Warrants and Suppression
[6-8] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. 20 As such, it is
well settled that a warrant authorizing a search must be based
on probable cause as established in an affidavit and application in support of the warrant. 21 In a criminal case, probable
cause sufficient to justify issuance of a search warrant means
19
See id.
20
State v. Miller, 312 Neb. 17,
978 N.W.2d 19 (2022).
21
See State v. Short,
310 Neb. 81,
964 N.W.2d 272 (2021).
- 459 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
a fair probability that contraband or evidence of a crime will
be found in the item to be searched. 22
[9] There is a presumption of validity with respect to affidavits supporting applications for search warrants, but that
presumption may be overcome, and a search warrant may
be invalidated, if the defendant proves the affiant officer
“‘“knowingly and intentionally, or with reckless disregard
for the truth,”’” included in the affidavit false or misleading statements that were “‘material’” to establishing probable cause. 23 Courts have extended the same rationale to
misleading omissions of material information from warrant
affidavits. 24
[10,11] Omissions in an affidavit used to obtain a search
warrant are considered misleading when the omitted information tends to weaken or damage the inferences which can
logically be drawn from the facts as stated in the affidavit. 25
Under these established rules, not every false statement or
omission in a supporting affidavit will render a warrant constitutionally invalid. It is only when a defendant successfully
proves, by a preponderance of the evidence, that the affiant
“knowingly and intentionally, or with reckless disregard for
the truth, included a false or misleading statement or omitted information material to a probable cause finding” 26 that
a court must go on to examine whether the evidence obtained
from the warrant and search was fruit of the poisonous tree.
To determine whether a false or misleading statement or omission is material to the probable cause determination, the court
“reexamines the affidavit after deleting the false or misleading
statement and including the omitted information, and it determines whether, viewed under the totality of the circumstances,
22
State v. McGovern,
311 Neb. 705,
974 N.W.2d 595 (2022).
23
Short, supra note 21,
310 Neb. at 125,
964 N.W.2d at 308.
24
See
Short, supra note 21.
25
See
id.
26
Id. at 125,
964 N.W.2d at 308 (emphasis supplied).
- 460 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
it still establishes probable cause.” 27 If this reexamination
shows that the affidavit does not establish probable cause, then
the search warrant is deemed void and the fruits of the search
are excluded. 28
[12] An appellate court reviews for clear error the trial
court’s findings as to whether the affidavit supporting the warrant contained falsehoods or omissions and whether those were
made intentionally or with reckless disregard for the truth.
However, an appellate court reviews de novo the determination
that any alleged falsehoods or omissions were not necessary to
the probable cause finding. 29
Applying these principles here, we read the county court’s
order granting the initial motion to suppress to include a finding that, when drafting the affidavit, the chief housing inspector either intentionally, or with reckless disregard for the truth,
omitted information that he had not asked anyone at Yale
Park for consent to inspect before applying for the inspection
warrant. Assuming without deciding that such factual finding
was not clear error, we consider de novo whether the omitted
information affected the court’s probable cause finding. 30 To
do so, we must first review the constitutional requirements
for issuing inspection warrants, including the probable cause
standard, as articulated by the U.S. Supreme Court.
(b) Inspection Warrants and Camara
In Camara, city housing inspectors entered an apartment
building to inspect for possible housing code violations. 31
When one of the tenants refused to allow inspectors into his
residence without a warrant, the tenant was cited for violating a city ordinance that made it a misdemeanor to refuse to
27
Id. at 126, 964 N.W.2d at 308.
28
Short, supra note 21.
29
See
id.
30
See
id.
31
Camara, supra note 2.
- 461 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
comply with such an inspection. The tenant filed a writ of
prohibition, arguing that he could not be prosecuted for failing to permit a warrantless inspection of his residence, and the
writ was denied. The U.S. Supreme Court granted certiorari
and reversed.
The Camara majority agreed with the tenant that he had “a
constitutional right to insist that the inspectors obtain a warrant to search [his residence],” 32 and, to the extent Frank v
Maryland 33 had previously authorized such inspections without a warrant, the Court overruled it. The Camara majority
also agreed with the tenant that absent exigent circumstances,
he could “not constitutionally be convicted for refusing to
consent” 34 to a warrantless inspection, reasoning:
In this case, [the tenant] has been charged with a crime
for his refusal to permit housing inspectors to enter his
leasehold without a warrant. There was no emergency
demanding immediate access . . . [y]et no warrant was
obtained and thus [the tenant] was unable to verify either
the need for or the appropriate limits of the inspection.
No doubt, the inspectors entered the public portion of
the building with the consent of the landlord, through the
building’s manager, but [the city] does not contend that
such consent was sufficient to authorize inspection of
[the tenant’s] premises. 35
[13] Camara thus held that administrative inspections of
residential buildings to ascertain compliance with health and
32
Id., 387 U.S. at 540.
33
Frank v. Maryland, 359 U.S. 360,
79 S. Ct. 804,
3 L. Ed. 2d 877 (1959),
overruled in part,
Camara, supra note 2.
34
Camara, supra note 2, 387 U.S. at 540.
35
Id., citing Stoner v. California,
376 U.S. 483,
84 S. Ct. 889,
11 L. Ed.
2d 856 (1964) (warrantless search of defendant’s hotel room without
defendant’s consent was unlawful despite consent of hotel clerk); Chapman
v. United States,
365 U.S. 610,
81 S. Ct. 776,
5 L. Ed. 2d 828 (1961)
(warrantless search of rented premises without tenant’s consent violated
Fourth Amendment despite consent of landlord).
- 462 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
safety codes are “significant intrusions upon the interests protected by the Fourth Amendment” 36 and that residents who do
not consent to such an inspection have “a constitutional right
to insist that the inspectors obtain a warrant,” absent exigent
circumstances. 37 Camara also suggested that when the tenant
has not consented and there are no exigent circumstances,
officials must obtain an inspection warrant to lawfully inspect
a residential apartment, regardless of whether the landlord or
building manager has consented. Based on this, we question
whether there are any circumstances under which a landlord
or property manager could provide lawful consent for city
inspectors to enter and inspect residential apartments leased
to others. But we need not answer that question, because, as
we will explain, even assuming that Anderson’s prior refusal
was required under § 29-832, we conclude that a violation of
that requirement has no impact on the probable cause finding
to issue an inspection warrant.
[14-17] In discussing the type of probable cause necessary
to support issuance of an inspection warrant, the Court in
Camara stated:
Where considerations of health and safety are involved,
the facts that would justify an inference of probable
cause to make an inspection are clearly different from
those that would justify such an inference where a criminal investigation has been undertaken. Experience may
show the need for periodic inspections of certain facilities without a further showing of cause to believe that
substandard conditions dangerous to the public are being
maintained. The passage of a certain period without
inspection might of itself be sufficient in a given situation to justify the issuance of a warrant. . . .
. . . [I]t is obvious that probable cause to issue a warrant to inspect must exist if reasonable legislative or
36
Camara, supra note 2, 387 U.S. at 534.
37
Id., 387 U.S. at 540.
- 463 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
administrative standards for conducting an area inspection
are satisfied with respect to a particular dwelling. Such
standards, which will vary with the municipal program
being enforced, may be based upon the passage of time,
the nature of the building (e. g., a multi-family apartment
house), or the condition of the entire area, but they will
not necessarily depend upon specific knowledge of the
condition of the particular dwelling. . . . The [inspection]
warrant procedure is designed to guarantee that a decision
to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate
standard. If a valid public interest justifies the intrusion
contemplated, then there is probable cause to issue a suitably restricted [inspection] warrant. 38
[18] Post-Camara, the U.S. Supreme Court has generally
recognized that probable cause to justify issuance of an inspection warrant can be based either on a showing of “specific evidence of an existing violation” 39 or on a more general showing
that “‘reasonable legislative or administrative standards for
conducting an [area] inspection’” 40 have been satisfied. And a
leading Fourth Amendment commentator observes that when
an inspection warrant is sought for an entire area, “Camara
permits a finding of probable cause upon more general facts,
such as the passage of time, the nature of the building, or the
condition of the area.” 41
38
Id., 387 U.S. at 538-39 (internal quotation marks omitted). Accord See
v. City of Seattle, supra note 2, 387 U.S. at 545 (holding probable cause
to issue administrative inspection warrant of commercial building is
governed by “a flexible standard of reasonableness that takes into account
the public need for effective enforcement of the particular regulation
involved”).
39
Marshall v. Barlow’s, Inc.,
436 U.S. 307, 320,
98 S. Ct. 1816,
56 L. Ed. 2d
305 (1978).
40
Id.
41
5 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth
Amendment § 10.1(c) at 20 (6th ed. 2020).
- 464 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
Applying these principles from Camara to the record here,
we note the housing inspector’s affidavit sought an inspection warrant for the entire area of Yale Park. The affidavit
recounted Anderson’s admission that he had been “lackadaisical” in completing requested maintenance and repairs at Yale
Park, and it referenced natural gas leaks in several units and
“code violation complaints detailing major health and safety
violations on 84 out of the 100 units.” The affidavit described
the general nature of those suspected code violations based
on information obtained from citizens and tenant advocates.
Based on these averments and using the “reasonable cause”
language of § 29-833, the issuing court determined there was
“reasonable cause to believe that the [Yale Park] Property is
being occupied in violation of [OMC] sections dealing with
property maintenance” and that the property was a “public
health hazard in violation of the [OMC].” On appeal to this
court, Anderson does not challenge the sufficiency of this
probable cause finding, and we agree the affidavit provided
sufficient probable cause under Camara to support issuing
the warrant. And because no one suggests otherwise in this
case, we assume without deciding that “reasonable cause”
under § 29-833 is satisfied if probable cause under Camara
is satisfied.
But because Anderson challenges the constitutional validity of the inspection warrant based solely on the affidavit’s
omission of information regarding compliance with the prior
refusal requirement, the question we must answer is whether,
viewed under the totality of the circumstances, an affidavit
that included the omitted information would still establish
probable cause for an inspection warrant under Camara. 42 In
other words, if the housing inspector had truthfully averred
42
See Short, supra note 21,
310 Neb. at 126,
964 N.W.2d at 308 (explaining
that court “reexamines the affidavit after deleting the false or misleading
statement and including the omitted information” and then determines
“whether, viewed under the totality of the circumstances, it still establishes
probable cause”).
- 465 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
that before requesting the inspection warrant, he had not
asked anyone at Yale Park for consent to inspect and no such
request had been refused, would the affidavit still have established sufficient probable cause under Camara to authorize
issuance of the inspection warrant? We conclude it would,
because as we explain next, we do not read Camara to suggest that prior refusal of consent is a constitutional prerequisite to issuing a valid inspection warrant.
(c) No Fourth Amendment Requirement
to Show Prior Refusal
The Camara majority referenced the practice of asking for
consent to inspect before seeking a warrant when it made the
following observation:
[M]ost citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light
of the Fourth Amendment’s requirement that a warrant
specify the property to be searched, it seems likely that
warrants should normally be sought only after entry is
refused unless there has been a citizen complaint or there
is other satisfactory reason for securing immediate entry.
Similarly, the requirement of a warrant procedure does
not suggest any change in what seems to be the prevailing
local policy, in most situations, of authorizing entry, but
not entry by force, to inspect. 43
Two things about this quote are worth highlighting. First,
this observation was not part the discussion in Camara of
the quantum of probable cause necessary to support issuance
of an administrative inspection warrant. Rather, it was in a
section of the opinion responding to concerns raised by the
dissent that imposing a warrant requirement on administrative inspections would be unduly burdensome and would
frustrate prompt inspections. Understood in context, Camara
referenced the practice of asking for consent to inspect before
43
Camara, supra note 2, 387 U.S. at 539-40.
- 466 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
seeking a warrant not because it is a constitutional prerequisite to issuance of a valid inspection warrant, but because it
is a practical step that will often eliminate the need to seek
a warrant at all. 44 Second, to the extent Camara can be read
to endorse the practice of seeking an inspection warrant
only after consent to inspect has been refused, it expressly
excluded circumstances where “there has been a citizen complaint” or where “there is other satisfactory reason for securing immediate entry.” 45
Although Camara plainly held that residents cannot, consist
ent with the Fourth Amendment, be compelled to consent to a
warrantless search of their property to ascertain compliance
with health and safety codes, we do not read Camara to hold
that residents have a constitutional right to be asked for and
refuse consent before an inspection warrant may be issued. We
are not alone in this conclusion. 46
In State v. Jackowski, 47 the Wisconsin Court of Appeals
addressed a constitutional challenge to the validity of an
inspection warrant that, like the one issued here, was based
on an affidavit that did not contain a statutorily-required
showing that “‘consent to entry for inspection purposes has
been refused.’” While executing the warrant, officials observed
criminal firearms violations, and the homeowner was later
prosecuted for such violations. He moved to suppress the
44
See, generally, State v. Jackowski,
247 Wis. 2d 430, 441,
633 N.W.2d 649,
655 (Wis. App. 2001) (reasoning that under Camara, refusal of consent
to inspect is not constitutional requirement, so “lack of an averment that
consent to inspect had been refused is a statutory violation only, not an
omission of constitutional dimension requiring suppression as a remedy”),
abrogated on other grounds, State v. Popenhagen,
309 Wis. 2d 601,
749
N.W.2d 611 (2008).
45
Camara, supra note 2, 387 U.S. at 540.
46
See
Jackowski, supra note 44.
47
Id. at 440,
633 N.W.2d at 655 (quoting
Wis. Stat. Ann. § 66.0119(2)
(West 2014), which required inspection warrants to be issued “only upon
showing that consent to entry for inspection purposes has been refused”).
- 467 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
evidence, arguing that the inspectors’ failure to comply with
the statutory requirement of showing prior refusal rendered
the inspection warrant constitutionally invalid. 48 The court in
Jackowski disagreed, reasoning:
We have discussed above the Fourth Amendment standard for the issuance of administrative inspection warrants, and a refusal of consent is not within it. When the
Supreme Court noted in Camara that “it seems likely
that warrants should normally be sought only after entry
is refused,” it was not discussing the requirements for
warrant issuance. The Court was simply explaining, at
the end of its opinion, why its holding would not prove
unduly burdensome to municipal building code enforcement. . . . Thus, we conclude that the lack of an averment
that consent to inspect had been refused is a statutory
violation only, not an omission of constitutional dimension requiring suppression as a remedy. Finally, we note
that [the Wisconsin statute requiring refusal of consent]
does not specifically require suppression of any evidence
obtained in violation of its provisions. 49
Jackowski thus concluded the inspection warrant was valid
because the affidavit showed sufficient probable cause under
Camara, and it held that no Fourth Amendment violation
resulted from the failure to comply with Wisconsin’s prior
refusal statute.
[19] We agree with this reasoning and conclude that although
there may be sound public policy reasons for requiring inspectors to show that consent to inspect was refused before seeking
an inspection warrant, chief among them reducing the number of inspection warrant applications that must be prepared
by inspectors and reviewed by courts, such a prerequisite is
neither compelled by the Fourth Amendment nor necessary to
48
Jackowski, supra note 44.
49
Id. at 441, 623 N.W.2d at 655.
- 468 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
establish probable cause under Camara or reasonable cause
under § 29-833. 50
[20] Not every violation of a state law restricting searches is
sufficient to show a Fourth Amendment violation. 51 And having reexamined the record to determine whether the omitted
information was material to the probable cause finding here,
we conclude it was not. Probable cause for an area inspection
of Yale Park was plainly supported by Anderson’s admission
to inspectors that he had been “lackadaisical” in responding
to maintenance requests and by multiple citizen complaints
describing serious health and safety code violations in nearly
all of the 100 residential units of Yale Park.
Viewing the matter under the totality of the circumstances,
we appreciate no way in which it would have impacted the
court’s probable cause determination to know that before seeking an inspection warrant, inspectors had not asked anyone at
Yale Park for consent to inspect, nor had anyone refused such
a request. Because the information omitted from the affidavit
was not material to the probable cause finding, the omission
did not render the inspection warrant constitutionally invalid
or provide a constitutional basis for suppressing evidence
discovered in the inspection. 52 To the extent the county and
district courts determined otherwise, they erred.
But this is not the end of our suppression analysis, because
we understand Anderson to argue that, even without a Fourth
50
See id.
51
See State v. Knutson,
288 Neb. 823,
852 N.W.2d 307 (2014). See, also,
State v. Hoehn,
316 Neb. 634,
6 N.W.3d 487 (2024). Accord 2 Wayne R.
LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 4.12
at 1035 (6th ed. 2020) (observing that many jurisdictions have imposed,
by statute or court rule, requirements upon warrants going beyond those
required by Fourth Amendment and that “these requirements are not
deemed to flow so directly from the Fourth Amendment’s proscription upon
unreasonable searches that failure to abide by them compels exclusion of
evidence obtained in execution of a search warrant”).
52
See,
Knutson, supra note 51;
Hoehn, supra note 51; 2 LaFave, supra note
51.
- 469 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
Amendment violation, a violation of § 29-832 triggers the remedy of suppression. We consider that argument next and find it
has no merit.
(d) Violation of § 29-832 Does
Not Require Suppression
[21] Absent a constitutional violation, a court will normally
suppress evidence obtained in violation of a rule or statute
only if the governing law provides that remedy. 53 Anderson
does not direct us to any statute or ordinance requiring the
suppression of evidence obtained pursuant to an inspection
warrant issued without the showing of prior refusal required
by § 29-832, and we are aware of none.
[22] We have already explained that Camara did not recognize a constitutional requirement that inspectors must ask for
consent to inspect and be refused before seeking an inspection
warrant. 54 We now hold that in the absence of a constitutional
violation or a statute requiring suppression, the failure to
comply with the prior refusal requirement in § 29-832 is a
technical irregularity that does not affect a substantial right
and does not require suppression. 55
That said, we do not condone the failure to comply with
the prior refusal provisions of § 29-832, even in a large residential apartment complex like Yale Park where compliance
may require inspectors to contact hundreds of tenants before
seeking an area inspection warrant. If inspectors believe the
prior refusal requirement in § 29-832 is unnecessarily impairing their ability to ascertain compliance with health and
safety codes in residential or commercial buildings with multiple tenants, they can seek appropriate amendments through
the legislative process. But currently, except for “emergency
53
Knutson, supra note 51.
54
Camara, supra note 2.
55
See, e.g.,
Neb. Rev. Stat. § 29-823 (Reissue 2016) (“[n]o evidence shall be
suppressed because of technical irregularities not affecting the substantial
rights of the accused”).
- 470 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
situations” where no warrant or consent is required, 56 the
Legislature has mandated that inspection warrants “shall be
issued only upon showing that consent to entry for inspection
purposes has been refused.” 57 Neither inspectors nor courts are
free to disregard this requirement.
Here, the affidavit plainly contained no such showing, and
for reasons that are not entirely clear from the appellate record,
the county court issued the inspection warrant anyway. This
was a technical violation of § 29-832, but not a constitutional
violation, and Anderson has shown no way in which the violation affected his substantial rights. The inspection warrant was
based upon an affidavit that established probable cause under
Camara and otherwise satisfied the requirements for issuance
of an inspection warrant under § 29-833.
On this record, and under this statutory scheme, an otherwise valid inspection warrant issued without the required
showing of prior refusal under § 29-832 does not require suppression. To the extent the lower courts concluded otherwise,
they erred.
[23] Of course, both the county court and the district court
ultimately overruled Anderson’s motions to suppress using
different reasoning, and a correct result will not be set aside
merely because the wrong reasoning was applied. 58 Although
our reasoning differs from that applied by the district court,
we affirm its decision to affirm the county court’s overruling
of Anderson’s motions to suppress. We reject Anderson’s first
assignment of error, and our dispositional path makes it unnecessary to address his other suppression arguments.
56
§ 29-832. Accord
Camara, supra note 2, 387 U.S. at 539 (emphasizing that
“nothing [stated in Camara] is intended to foreclose prompt inspections,
even without a warrant, that the law has traditionally upheld in emergency
situations”).
57
§ 29-832.
58
See State v. Kolbjornsen,
295 Neb. 231,
888 N.W.2d 153 (2016) (appellate
court will not set aside correct result merely because lower court applied
wrong reasoning).
- 471 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
2. Sufficiency of Evidence
All of Anderson’s remaining assignments of error challenge
the sufficiency of the evidence supporting his four convictions
of violating OMC § 48-53, which, as stated, provides in relevant part:
Any person who knowingly fails to comply with a section of [the OMC] or with a notice of violation or order
served in accordance with [the OMC] for a period of at
least 90 days after such service shall be deemed guilty of
a misdemeanor and be punished as provided in section
1-10 of [the OMC].
We generally agree with the lower courts that the material elements the State was required to prove, beyond a reasonable
doubt, with respect to each count charging a violation of OMC
§ 48-53, were that (1) the alleged code violation existed on
the Yale Park property, (2) notice of such code violation was
served in accordance with the OMC, (3) Anderson was either
the owner of Yale Park or a person responsible for maintenance of the premises, and (4) Anderson knowingly failed
to comply with a section of the OMC, or with the notice of
violation or correction order, for a period of at least 90 days
after service.
We do not understand Anderson to argue there was insufficient evidence of the underlying code violations at Yale Park.
Instead, he presents several interrelated arguments challenging
the sufficiency of the evidence regarding the second, third, and
fourth elements. We address each of these arguments in turn
and ultimately reject them all.
(a) Evidence Was Sufficient to Prove
Violation Notices Were Served
in Accordance With OMC
Anderson contends the evidence was insufficient to show
that the violation notices and correction orders were served
in accordance with the OMC. First, he argues the evidence
of service was insufficient because the notices and correction
- 472 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
orders were “specifically and solely directed to AB Realty and
did not mention Anderson’s name.” 59 Alternatively, he argues
there was insufficient evidence of the mailing process and,
thus, “[t]he State failed to prove that the Notices were served
upon Anderson or anyone else pursuant to OMC § 48-63.” 60
To address these arguments, we first recall the pertinent notice
and service provisions of the OMC.
As relevant here, OMC § 48-61 provides, “Whenever the
code official determines that there has been a violation of [the
OMC,] notice shall be given to the owner or the person or
persons responsible.” And OMC § 48-63 provides that a violation notice “shall be deemed to be properly served if a copy
thereof is . . . [s]ent by certified or first-class mail addressed
to the last-known address.”
To the extent Anderson contends the evidence was insufficient because it showed the violation notices were “directed
to AB Realty and did not mention Anderson’s name,” 61 we
disagree. OMC § 48-61 plainly authorizes officials to give
notice of code violations to either “the owner or the person or
persons responsible therefore [sic],” and therefore, violation
notices directed to AB Realty, the entity that owned Yale Park,
complied with this provision.
We also reject Anderson’s contention that evidence of the
process by which the violation notices were mailed was insufficient to show compliance with the OMC. The chief housing
inspector testified that within 2 weeks of executing the inspection warrant, he prepared, reviewed, and signed the violation
notices and then provided them to his administrative staff,
who sent them via first-class mail pursuant to regular office
procedure. He testified that all notices were addressed to “AB
Realty at 2400 North 34th Avenue, Apartment No. 24,” in
59
Brief for appellant at 32.
60
Id. at 35.
61
Id. at 32.
- 473 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
Omaha, which was Anderson’s last-known address. All subsequent notices were sent using the same procedure.
As such, the State adduced evidence showing that all violation notices were “[s]ent by certified or first-class mail
addressed to the last-known address” 62 of either “the owner
or the person or persons responsible therefore [sic].” 63 The
evidence was undisputed that no notice was returned as undelivered, and at trial, Anderson’s wife admitted the notices
were received. This evidence was sufficient for a rational trier
of fact to find beyond a reasonable doubt that the violation
notices and correction orders were served in accordance with
the OMC. Anderson’s arguments to the contrary are meritless.
(b) Evidence Was Sufficient to Prove
Anderson Was Responsible for
Maintenance of Yale Park
Anderson generally contends that because Yale Park was
owned by AB Realty, that entity alone was “responsible for
both maintenance of Yale Park and compliance with” 64 the
violation notices and correction orders. He suggests there is
“no basis” under the OMC to hold him responsible for correcting code violations that “were not directed toward him and
pertained to apartments that he did not own.” 65 We disagree.
Although the OMC authorizes a process whereby corporations can be punished for violating or failing to comply with
any provision of the OMC, 66 the same ordinance also expressly
provides, “This section shall not relieve any officer or agent
of such corporation from prosecution and punishment in case
such officer or agent has violated or fails to comply with any
62
OMC § 48-63.
63
OMC § 48-61.
64
Brief for appellant at 32.
65
Id. at 33.
66
Omaha Mun. Code, ch. 1, § 1-11 (1980).
- 474 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
provision of [the OMC] or any ordinance.” 67 Additionally,
OMC § 48-12 plainly provides that “the owner or the owner’s
designated agent shall be responsible for the maintenance of
buildings, structures and premises.” (Emphasis supplied.)
There was ample evidence adduced at trial showing that,
at all relevant times, Anderson was both the manager of AB
Realty and its designated agent responsible for the maintenance of the buildings, structures, and premises at Yale Park.
There was also evidence that Anderson held himself out to
housing inspectors, to tenants, and to Omaha’s property management appeals board as the person responsible for remedying code violations at Yale Park, both before and after the
initial violation notices and correction orders were issued.
This evidence was sufficient for a rational trier of fact to find
beyond a reasonable doubt that Anderson was the owner’s
designated agent responsible for maintenance at Yale Park
and “the person or persons responsible” within the meaning
of OMC § 48-61. There is no merit to Anderson’s claim that
the evidence was insufficient to prove he was responsible for
complying with the violation notices and correction orders.
(c) Evidence Was Sufficient to Show
Anderson Knowingly Failed to Comply
With Correction Order for Period of
at Least 90 Days After Service
Finally, Anderson argues the evidence was insufficient to
prove that he knowingly failed to comply with a violation
notice or correction order for a period of at least 90 days after
service. As a general proposition, we have said that “to commit an act knowingly, the defendant must be aware of what he
is doing.” 68 Anderson does not contend that he was unaware
of the code violations, the violation notices, or the correction
67
Id.
68
State v. Lotter, 255 Neb. 456, 523,
586 N.W.2d 591, 636 (1998).
- 475 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
orders. Instead, he contends the evidence was insufficient
because (1) it did not show the specific dates on which the
initial correction orders were served, (2) the correction orders
did not afford him a reasonable opportunity to abate the violations, and (3) he was “never informed . . . which of the 2,000
violations would result in criminal charges.” 69 We address
each of these arguments in turn and ultimately reject them all.
(i) Evidence Was Sufficient to
Determine 90-Day Period
Anderson argues the 90-day period for abating the code
violations in OMC § 48-53 “could have only commenced
from the date service was perfected,” and he contends “[t]he
State never proved when that clock started . . . so [it] also
never proved that Anderson willfully failed to comply with the
[notices or orders] within 90 days.” 70
OMC § 48-63 states that a violation notice is deemed
“served” if a copy thereof is “[s]ent by certified or first-class
mail.” The initial violation notices were dated October 5,
2018, and were sent via first-class mail in the normal course of
business to Anderson’s last-known address. Although no specific mailing date was identified, the evidence was undisputed
that the notices were mailed within 2 to 3 weeks after the
inspection warrant was executed on September 20. As such,
the evidence was sufficient for a reasonable finder of fact to
conclude the initial violation notices were served as early as
October 5 and no later than October 11.
The evidence also showed that during the reinspection on
February 27, 2019, the four violations on which Anderson’s
convictions are based had not yet been abated. At that point,
more than 4 months had elapsed from the time the initial
notices and orders were served. This evidence, construed in
69
Brief for appellant at 15.
70
Id. at 34.
- 476 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
the light most favorable to the prosecution, was sufficient for
a rational trier of fact to conclude that Anderson knowingly
failed to comply with the initial violation notices and correction orders for a period of at least 90 days after service.
(ii) Reasonableness of Abatement Period
Is Immaterial to Violation
Under OMC § 48-53
Anderson argues that he could not have knowingly failed
to comply with the violation notices and correction orders,
because the correction orders did not allow him a reasonable period of time to make the required repairs in the first
instance. As relevant to this argument, Anderson points out
that OMC § 48-62(4) requires that a violation notice must
“[i]nclude a correction order allowing a reasonable time to
make the repairs and improvements required to bring the
dwelling unit or structure into compliance with the provisions
of [the OMC].”
Here, the initial correction orders allowed Anderson 30
days to make the necessary repairs, and the additional 30-day
extensions allowed in the second and third sets of correction orders gave him a total period of 90 days to abate the
underlying code violations that resulted in his four convictions. Anderson does not dispute that the abatement periods
allowed in these correction orders were consistent with the
“reasonable time” periods set out in the table contained within
OMC § 48-62(4). Instead, he points out that several witnesses, including housing inspectors, testified that he could
not have remedied all 2,000 code violations within 90 days,
or even within 120 days. But even assuming these witnesses
were correct, we are not persuaded that the reasonableness of
the abatement period allowed pursuant to OMC § 48-62(4)
has any bearing on whether there has been a violation of
OMC § 48-53.
[24-27] When analyzing a municipal ordinance, Nebraska
courts apply the same rules of construction as those applied
- 477 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
to statutory analysis. 71 A penal statute is to be given a sensible construction in the context of the object sought to be
accomplished, the evils and mischiefs sought to be remedied,
and the purpose sought to be served. 72 When interpreting
an ordinance, our analysis begins with the text. 73 When the
words are plain, direct, and unambiguous, courts are to give
the language its plain and ordinary meaning. 74 It is not within
the province of the courts to read meaning into an ordinance
that is not there or to read anything direct and plain out of
an ordinance. 75
Applying these principles of construction, we must reject
Anderson’s contention that the plain language of OMC
§ 48-53, which makes it a misdemeanor to knowingly fail to
comply with a notice of violation or correction order “for a
period of at least 90 days after such service,” must be read
to include the qualification that no violation can occur unless
the abatement period allowed in the order was reasonable
and unless all required repairs could reasonably be completed
within that 90-day period. Doing so would require that we
read language into the ordinance that is not there and would
be inconsistent with other provisions of the OMC.
Although OMC § 48-53 makes noncompliance with the
service requirements of OMC § 48-63 an element of the
offense, it contains no similar provision referencing the abatement periods set out in OMC § 48-62(4); nor is there any
other language in OMC § 48-53 suggesting that to prove a
violation of OMC § 48-53, the prosecution must prove it was
possible to complete all required repairs within 90 days after
service of the notice and order. This is likely because the OMC
71
See Walsh v. City of Omaha Police & Fire Ret. Sys.,
277 Neb. 554,
763
N.W.2d 411 (2009).
72
See State v. Johnson,
310 Neb. 527,
967 N.W.2d 242 (2021).
73
See State v. Taylor,
310 Neb. 376,
966 N.W.2d 510 (2021).
74
Id.
75
See
id.
- 478 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
authorizes abatement periods ranging from 30 to 240 days,
depending on the nature of the violation and the number of
extensions allowed. 76
When enacting OMC § 48-53, the city of Omaha could
have made it a crime to “fail to complete the repairs necessary to bring the property into compliance with the provisions
of the OMC within the time allowed in the correction order.”
Or it could have made it a crime to “fail to complete, within
a reasonable period of time, the repairs necessary to bring the
property into compliance within the provisions of the OMC.”
It did neither. Instead, it made it a crime to “fail[] to comply
. . . with a notice of violation or order served in accordance
with [the OMC] for a period of at least 90 days after such
service.” As such, it appears that a violation of OMC § 48-53
can occur even before the expiration of the total abatement
period allowed in a particular case, particularly if the evidence shows there was no reasonable attempt to even begin
making the required repairs for a period of at least 90 days
after service.
Stated differently, it is the failure to comply with the violation notice or correction order for a period of 90 days after
service that is criminalized by OMC § 48-53, and such a failure can be shown regardless of the amount of time ultimately
allowed to make the necessary repairs and regardless of the
time reasonably required to complete them. Further support
for this conclusion is found in OMC § 48-102, which provides that although an appeal to the board will stay administrative enforcement of a notice and order until the appeal can
be heard, it “shall not stay the criminal prosecution of any
violation of any section of [the OMC].”
Here, the evidence showed that when inspectors served the
third set of correction orders providing an additional 30 days to
abate the underlying code violations identified in the original
notices and orders, they also sent a letter stating in part:
76
See OMC § 48-62(4) and table.
- 479 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
During the next reinspection, if progress is seen and
work is completed in a timely and workmanlike manner,
citations may not be issued and an extension to abate the
remaining violations may be granted. However, if progress is not made to abate the remaining violations, criminal citations will be issued.
The evidence also showed that at the next reinspection,
which occurred well beyond the 90-day period, the inspector
observed that no repairs had been started with respect to the
four underlying code violations alleged in counts X, XI, XV,
and XVII. This evidence, construed in the light most favorable
to the prosecution, is sufficient for a rational trier of fact to
conclude that Anderson knowingly failed to comply with the
violation notice and correction orders for a period of at least
90 days after service.
(iii) Number of Violations to Be Corrected
Is Immaterial to Violation
Under OMC § 48-53
Finally, Anderson argues that he could not knowingly have
failed to comply with the correction orders, because inspectors “never informed Anderson which of the 2,000 violations
would result in criminal charges.” 77 The district court rejected
this argument, reasoning that Anderson was “attempting to
take advantage of the magnitude of violations present at his
property to avoid prosecution by arguing that since there were
a large number of violations, he cannot be responsible for any
individual violations not corrected within the relevant time
period.” The district court emphasized that despite Anderson’s
receiving three sets of violation notices and correction orders
between October 2018 and January 2019, there was “no evidence [Anderson] even attempted to start [any] repairs until
shortly before the City charged him.”
77
Brief for appellant at 15.
- 480 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. ANDERSON
Cite as 317 Neb. 435
We agree with the district court’s reasoning. Regardless of
the number of violations with which Anderson was charged,
the evidence at trial showed, with respect to counts X, XI,
XV, and XVII, that he had not even begun to make repairs
more than 4 months after the violation notices and correction
orders were served. This evidence was sufficient to prove that
he knowingly failed to comply with the violation notices and
correction orders for a period of at least 90 days after service.
V. CONCLUSION
For the foregoing reasons, we find no reversible error in the
decision of the district court. We therefore affirm Anderson’s
convictions and sentences.
Affirmed.
