Colwell, D.J., Retired.
Defendant, Terry Havlat, appeals his conviction of manufacturing a controlled substance, marijuana. Neb. Rev. Stat. § 28-416(l)(a) (Cum. Supp. 1984). The marijuana was growing in a rural area when seized during a warrantless search. Havlat was sentenced to 20 to 40 months in the Nebraska Penal and Correctional Complex and fined $1,000.
On July 26, 1983, while Officers Roy Svoboda and Dean Heiden of the Nebraska State Patrol were making a low-level photographic investigative air flight over parts of Seward County, Nebraska, searching for unlawful growths of marijuana, they observed suspected marijuana plants on a [556]*556250-acre farm later determined to be owned by Lumir and Valerie Havlat, the defendant’s parents. The farm was a grain and livestock operation of Lumir and defendant under an oral agreement having general terms that the defendant described as a partnership. The owners lived in the farmhouse. The property was fenced, with its gates closed and posted against trespassers.
On July 28 Officers Heiden and Billy Hobbs of the State Patrol entered the farm through a fence from a public road at a point distant from the farm buildings. They did not have a search warrant. The officers discovered four patches of growing marijuana, located more than one-quarter mile from the farm buildings,,near a small creek that meandered through the farm. There was a heavy growth of trees, underbrush, and weeds on each side of the creek; the marijuana could not be seen from the road. A hay field and milo field were nearby.
The term “manufacture” includes cultivating marijuana. Neb. Rev. Stat. § 28-401(22) (Cum. Supp. 1984). The ground around the marijuana plants had been disturbed, and the weeds had been eradicated. Plastic garden-type hoses ran from the creek to the plants, conveying water pumped from the creek by a small, gasoline-powered pump from which the defendant’s palm print was later taken and identified. Havlat testified that he had recently used the pump to clean out a cistern on the farm.
Patrol officers continued their investigation by succeeding warrantless intrusions on July 29 and August 2, 4, 5, and 8, 1983. In the late evening of August 8, the officers arrested Havlat when he appeared at the growing area. The following day, the officers seized 600 pounds of marijuana plants. A subsequent search of the defendant’s home and garage in Milford, Nebraska, pursuant to a search warrant, produced two seed-starter trays, marijuana seeds, and other miscellaneous marijuana paraphernalia, not described since this evidence was later suppressed at the close of the trial.
On February 22,1984, the trial court granted the defendant’s pretrial motion to suppress evidence seized in the warrantless search. A single judge of this court reversed the order in the State’s interlocutory appeal, as provided in Neb. Rev. Stat. § 29-824(Cum. Supp. 1984). State v. Havlat, 217 Neb. 791, 351 [557] N.W.2d 86 (1984). Later, the trial court, on its own motion, again suppressed the same evidence, and again that order was reversed in an interlocutory appeal. State v. Havlat, 218 Neb. 602, 357 N.W.2d 464 (1984).
Prior to trial, the State dismissed count II of the indictment charging Havlat with conspiracy to violate § 28-416(l)(a), and Havlat executed a written waiver of his right to a jury trial. At trial the evidence seized in the warrantless search was admitted over the defendant’s objection. At the conclusion of the evidence, the trial judge made complete and detailed findings concerning the crime charged, the elements thereof, and the State’s burden of proof. The trial court also made findings with regard to the testimony of witnesses which supported the State’s burden of proof, the circumstantial nature of some of the evidence and its probative force, and the fact that the land was under the defendant’s control. The court specifically noted that the suppressed evidence seized at the defendant’s home pursuant to a search warrant was disregarded. The court then found Havlat guilty of cultivating marijuana in violation of § 28-416(l)(a).
In his first assignment of error, Havlat contends that the single judge of this court erred when he twice reversed the district court’s orders suppressing the warrantless search evidence and that the trial court erred when it admitted this evidence over the defendant’s motion to suppress. Havlat claims that the evidence was seized in violation of state and federal constitutional provisions guaranteeing the right to be free from unreasonable searches and seizures. His argument is directed to the first-impression question of whether article I, § 7, of the Nebraska Constitution, guaranteeing the right to be free from unreasonable searches and seizures, should have a broader interpretation than its federal counterpart, the fourth amendment to the U.S. Constitution, when applying it to fact scenarios considered under the “open fields doctrine.” Defendant urges a broad and separate state standard because Nebraska is an agrarian state dominated by large areas of farm and ranch land operations, the businesses within which should be accorded the same protection as those enclosed in buildings or walls.
[558] The State counters that an open field is not an “effect” within the meaning of either the fourth amendment or article I, § 7, and even if it were, warrantless entries into open fields are still reasonable because no legitimate expectation of privacy exists in activities conducted in the open fields. What is “reasonable,” the State posits, is to be measured not by the subjective expectations of the parties but by an objective test of what society considers a legitimate interest in privacy which warrants constitutional protection. The State also argues that the officers’ actions were proper pursuant to Neb. Rev. Stat. § 28-429(l)(d) (Reissue 1979), which specifically permits law enforcement officers to enter onto property without a search warrant or consent for the purpose of locating and eradicating wild or illicit weeds from which a controlled substance could be extracted.
The U.S. Supreme Court first articulated the open fields doctrine in Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924): “[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects, ’ is not extended to the open fields.” Forty-three years later, in a telephone-booth electronic surveillance case, the same Court declared that the “Fourth Amendment protects people, not places.” (Emphasis supplied.) Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
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Colwell, D.J., Retired.
Defendant, Terry Havlat, appeals his conviction of manufacturing a controlled substance, marijuana. Neb. Rev. Stat. § 28-416(l)(a) (Cum. Supp. 1984). The marijuana was growing in a rural area when seized during a warrantless search. Havlat was sentenced to 20 to 40 months in the Nebraska Penal and Correctional Complex and fined $1,000.
On July 26, 1983, while Officers Roy Svoboda and Dean Heiden of the Nebraska State Patrol were making a low-level photographic investigative air flight over parts of Seward County, Nebraska, searching for unlawful growths of marijuana, they observed suspected marijuana plants on a [556]*556250-acre farm later determined to be owned by Lumir and Valerie Havlat, the defendant’s parents. The farm was a grain and livestock operation of Lumir and defendant under an oral agreement having general terms that the defendant described as a partnership. The owners lived in the farmhouse. The property was fenced, with its gates closed and posted against trespassers.
On July 28 Officers Heiden and Billy Hobbs of the State Patrol entered the farm through a fence from a public road at a point distant from the farm buildings. They did not have a search warrant. The officers discovered four patches of growing marijuana, located more than one-quarter mile from the farm buildings,,near a small creek that meandered through the farm. There was a heavy growth of trees, underbrush, and weeds on each side of the creek; the marijuana could not be seen from the road. A hay field and milo field were nearby.
The term “manufacture” includes cultivating marijuana. Neb. Rev. Stat. § 28-401(22) (Cum. Supp. 1984). The ground around the marijuana plants had been disturbed, and the weeds had been eradicated. Plastic garden-type hoses ran from the creek to the plants, conveying water pumped from the creek by a small, gasoline-powered pump from which the defendant’s palm print was later taken and identified. Havlat testified that he had recently used the pump to clean out a cistern on the farm.
Patrol officers continued their investigation by succeeding warrantless intrusions on July 29 and August 2, 4, 5, and 8, 1983. In the late evening of August 8, the officers arrested Havlat when he appeared at the growing area. The following day, the officers seized 600 pounds of marijuana plants. A subsequent search of the defendant’s home and garage in Milford, Nebraska, pursuant to a search warrant, produced two seed-starter trays, marijuana seeds, and other miscellaneous marijuana paraphernalia, not described since this evidence was later suppressed at the close of the trial.
On February 22,1984, the trial court granted the defendant’s pretrial motion to suppress evidence seized in the warrantless search. A single judge of this court reversed the order in the State’s interlocutory appeal, as provided in Neb. Rev. Stat. § 29-824(Cum. Supp. 1984). State v. Havlat, 217 Neb. 791, 351 [557] N.W.2d 86 (1984). Later, the trial court, on its own motion, again suppressed the same evidence, and again that order was reversed in an interlocutory appeal. State v. Havlat, 218 Neb. 602, 357 N.W.2d 464 (1984).
Prior to trial, the State dismissed count II of the indictment charging Havlat with conspiracy to violate § 28-416(l)(a), and Havlat executed a written waiver of his right to a jury trial. At trial the evidence seized in the warrantless search was admitted over the defendant’s objection. At the conclusion of the evidence, the trial judge made complete and detailed findings concerning the crime charged, the elements thereof, and the State’s burden of proof. The trial court also made findings with regard to the testimony of witnesses which supported the State’s burden of proof, the circumstantial nature of some of the evidence and its probative force, and the fact that the land was under the defendant’s control. The court specifically noted that the suppressed evidence seized at the defendant’s home pursuant to a search warrant was disregarded. The court then found Havlat guilty of cultivating marijuana in violation of § 28-416(l)(a).
In his first assignment of error, Havlat contends that the single judge of this court erred when he twice reversed the district court’s orders suppressing the warrantless search evidence and that the trial court erred when it admitted this evidence over the defendant’s motion to suppress. Havlat claims that the evidence was seized in violation of state and federal constitutional provisions guaranteeing the right to be free from unreasonable searches and seizures. His argument is directed to the first-impression question of whether article I, § 7, of the Nebraska Constitution, guaranteeing the right to be free from unreasonable searches and seizures, should have a broader interpretation than its federal counterpart, the fourth amendment to the U.S. Constitution, when applying it to fact scenarios considered under the “open fields doctrine.” Defendant urges a broad and separate state standard because Nebraska is an agrarian state dominated by large areas of farm and ranch land operations, the businesses within which should be accorded the same protection as those enclosed in buildings or walls.
[558] The State counters that an open field is not an “effect” within the meaning of either the fourth amendment or article I, § 7, and even if it were, warrantless entries into open fields are still reasonable because no legitimate expectation of privacy exists in activities conducted in the open fields. What is “reasonable,” the State posits, is to be measured not by the subjective expectations of the parties but by an objective test of what society considers a legitimate interest in privacy which warrants constitutional protection. The State also argues that the officers’ actions were proper pursuant to Neb. Rev. Stat. § 28-429(l)(d) (Reissue 1979), which specifically permits law enforcement officers to enter onto property without a search warrant or consent for the purpose of locating and eradicating wild or illicit weeds from which a controlled substance could be extracted.
The U.S. Supreme Court first articulated the open fields doctrine in Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898 (1924): “[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects, ’ is not extended to the open fields.” Forty-three years later, in a telephone-booth electronic surveillance case, the same Court declared that the “Fourth Amendment protects people, not places.” (Emphasis supplied.) Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
Recently, the U.S. Supreme Court reaffirmed the Hester open fields doctrine in Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The facts in Oliver, except for the successive intrusions, were similar to the facts before us, including the warrantless trespass in a rural area enclosed by a fence and posted with no-trespassing signs. The Oliver Court held that, since Katz, the touchstone of fourth amendment analysis has been the question of whether a person has a constitutionally protected, reasonable expectation of privacy. This is not merely a subjective expectation of privacy but, rather, includes only those expectations that society is prepared to recognize as reasonable — in other words, an objective test of reasonableness. Based on this premise, the Oliver Court concluded that the open fields doctrine of Hester [559] retained its validity and was consistent with the holding in Katz. Further,
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. [Citation omitted.] In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment [citation omitted], the uses to which the individual has put a location [citation omitted], and our societal understanding that certain areas deserve the most scrupulous protection from government invasion [citation omitted]. These factors are equally relevant to determining whether the government’s intrusion upon open fields without a warrant or probable cause violates reasonable expectations of privacy and is therefore a search proscribed by the Amendment.
. . . [OJpen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or “No Trespassing” signs effectively bar the public from viewing open fields in rural areas... .For these reasons, the asserted expectation of privacy in open fields is not an expectation that “society recognizes as reasonable.”
466 U.S. at 177-79.
While concluding that neither probable cause nor a warrant is required to effect police searches of open fields, the Court emphasized that the fourth amendment continues to protect other activities in the open fields which might involve an individual’s privacy.
Although a state may not impose greater restrictions on [560] police activity as a matter of federal constitutional law, a state may impose higher standards governing police practices on the basis of state law. See, Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975); Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967), reh’g denied 386 U.S. 988, 87 S. Ct. 1283, 18 L. Ed. 2d 243.
This court has not previously addressed the specific question of whether article I, § 7, of the Nebraska Constitution, which is phrased identically to the fourth amendment, affords greater protection against governmental searches and seizures involving open fields than does its federal counterpart.
Our decision in State v. Cemper, 209 Neb. 376, 307 N.W.2d 820 (1981), based on the fourth amendment to the federal Constitution, merely anticipated Oliver. Cemper, an employee of a farm lessee, was convicted of manufacturing marijuana. We held that although under Katz the right to claim the protection of the fourth amendment depended upon whether a person had a legitimate expectation of privacy in the invaded place, nevertheless the open fields doctrine of Hester remained applicable. Evidence of ownership or possessory rights (or in Cemper, the lack thereof) was a factor in determining the legitimate expectation of privacy. Further,
In the rural areas of this state it would be difficult to find a landowner who would believe that no person would enter on his open field without permission. Hunters, fishermen, and other technical trespassers are so commonly expected in the rural areas of this state that a failure to post trespassing signs is regarded by many persons as almost an implied permission to enter.
Cemper, supra at 381-82, 307 N.W.2d at 823.
Applying Cemper to the Nebraska Constitution, we hold that a person’s capacity to claim the protection of article I, § 7, of the Nebraska Constitution as to unreasonable searches and seizures, like its counterpart, the fourth amendment to the U.S. Constitution, depends upon whether the person who claims such protection has a legitimate expectation of privacy in the invaded place. Further, the open fields doctrine of Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924), is applicable under our Constitution.
[561] Nowhere in our independent research of the state constitutional conventions do we find evidence that the framers intended the explicit language of article I, § 7, to encompass more than what it says. See, 2 Proc. Const. Conv. 1871, 93-96; 1 Proc. Const. Conv. 1871, 88-90.
There is no merit in the argument that Nebraska’s agrarian economy requires a broader interpretation of article I, § 7, of the state Constitution. To the contrary, we note that a vast majority of the 50 states, regardless of population, have large areas of land devoted to farming, ranching, mining, and tree production.
Concerning the open fields doctrine, our state Constitution does not afford more protection than does the fourth amendment to the federal Constitution as interpreted in Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984), and we decline to judicially impose higher standards governing law enforcement officers under the provisions of the state Constitution. Without a further recitation of the rationale set forth by the majority in Oliver, we find persuasive the reasons advanced in Oliver for concluding that no constitutional protection attaches to Havlat’s activities .occurring in the open fields, that Havlat had no legitimate expectation of privacy under the facts here, and that police could enter and search the open field without probable cause or a search warrant.
Accordingly, Havlat’s first assignment of error is without merit. The trial court did not err when it admitted evidence at trial seized during a warrantless search of Havlat’s property, and the single judge who ruled on the State’s interlocutory motions was correct in reversing the trial court’s order suppressing the evidence.
As Havlat’s second assignment of error, he claims that the trial court erred in deciding Havlat’s guilt on the basis of testimonial evidence of one Kenneth Witmuss, Jr. Havlat claims that this evidence, admitted at trial, was wholly lacking in relevance and probative value due to the State’s failure to lay adequate foundation. The defendant and Witmuss had been friendly for several years prior to 1983. Witmuss had visited Havlat at his home and at the farm, the pair had traveled [562] together to California, and from 1979 to 1982 Witmuss had been a part-time mechanic employed by the defendant.
It is undisputed that Witmuss’ testimony is circumstantial. “ ‘Circumstantial evidence is defined as the attendant facts and circumstances from which a principal fact may be inferred by the usual processes of reasoning....’ ” State v. Betts, 210 Neb. 348, 350, 314 N.W.2d 257, 258 (1982).
Because of the wide variety of facts that may have circumstantial probative value, courts are liberal in admitting such evidence of facts which appear to have some degree of relevance to the matters in issue. Much discretion is left to the trial judge, and his or her rulings will be sustained if the evidence admitted tends to show that a fact in controversy did or did not exist. See, 1 C. Torcía, Wharton’s Criminal Evidence § 155 (13th ed. 1972); 29 Am. Jur. 2d Evidence § 266 (1967). Further, the trial judge has wide discretion in the determination of foundation, that is, connecting or qualifying evidence, and “ [i]n order to be admissible, evidence need not invariably appear to be relevant at the time when it is proffered.” 1 S. Gard, Jones on Evidence §§ 4:59 and 4:60 at 512 (6th ed. 1972).
When a case is tried to the court without a jury, it is presumed that the trial court considered only competent and relevant evidence in reaching its decision. State v. Tomes, 218 Neb. 148, 352 N.W.2d 608 (1984). This court will not reverse a trial court’s decision when there is otherwise sufficient material, competent, and relevant evidence to sustain the judgment. Id.
The long-standing rule in this state is that in determining the sufficiency of the evidence to sustain a conviction in a criminal prosecution, this court does not resolve conflicts in the evidence, pass upon the credibility of the witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and its verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. True, 210 Neb. 701, 316 N.W.2d 623 (1982); State v. Thaden, 210 Neb. 622, 316 N.W.2d 317 (1982); State v. Meadows, 203 Neb. 197, 277 N.W.2d 707 (1979).
Havlat claims that the trial court erred when it admitted certain testimony of Witmuss over objections of foundation, [563] relevancy, and lack of probative value. Witmuss testified that on one occasion in 1983 the defendant gave him marijuana which he, Havlat, took from a grain sack in the garage on the farm. From the known relationship of Witmuss and Havlat, the general nature of the testimony, and other evidence in the record, it was within the discretion of the trial judge to admit the evidence on the expectation of later connecting foundation. Such was not provided. Witmuss subsequently testified, without objection, that the defendant had once mentioned the growing of marijuana. Defendant did object to further similar testimony, and although the objection was overruled, that line of questioning ended. However, succeeding foundation evidence established that the conversation was remote in time, having occurred sometime prior to 1981. In each of these instances where either the connecting evidence was not provided or other evidence destroyed the relevancy of the evidence, such was subject to being stricken. Havlat made no motion to strike. In any event, there was no error, because Havlat himself later testified that he had given marijuana to Witmuss. No substantial right of the defendant was affected, and it is presumed that the trial judge disregarded the evidence.
Havlat’s main concern relates to Witmuss’ testifying over objection that in the winter prior to defendant’s arrest, he and the defendant had talked about irrigation systems. Witmuss stated that Havlat expressed an interest in installing a drip irrigation system on his farm, but Havlat did not say that he planned to use it for watering marijuana. The time, place, and circumstances surrounding this conversation were sufficiently provided. As the trial court found, the testimony provided a thread of circumstantial evidence having probative value relating to the issue of cultivating marijuana. There was no error in admitting this evidence; its weight and credibility were for the trier of fact.
Havlat also claims in his second assignment of error that the trial court committed prejudicial error because it decided Havlat’s guilt on the basis of Witmuss’ testimony relating to irrigation systems. This assertion is contrary to the record. The trial judge’s findings noted the testimony, but only as a circumstance supporting other evidence that the defendant was [564] cultivating marijuana plants. The other evidence included the observations of the investigating officers; the soil around the plants, which was disturbed and damp; the hoses and pump, which were in place and operable; the defendant’s palm print on the pump; and the fact that the defendant controlled the area where the plants were growing. Even disregarding Witmuss’ testimony, ample probative evidence existed to support the defendant’s conviction.
We will not interfere with a guilty verdict based upon evidence in a criminal case unless the evidence is so lacking in probative force that it can be said as a matter of law that the evidence is insufficient to support a guilty verdict beyond a reasonable doubt. State v. Thaden, 210 Neb. 622, 316 N.W.2d 317 (1982). Here, the record discloses sufficient evidence which supports a rational theory of the defendant’s guilt. Havlat’s second assignment of error is therefore without merit.
For these reasons the judgment of the district court is in all respects affirmed.
Affirmed.