{"id":26002,"date":"2017-02-27T13:49:10","date_gmt":"2017-02-27T18:49:10","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=26002"},"modified":"2017-02-27T13:49:10","modified_gmt":"2017-02-27T18:49:10","slug":"ne-implied-consent-law-was-unconstitutional-as-applied-here-but-not-on-its-face","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=26002","title":{"rendered":"NE implied consent law was unconstitutional as applied here, but not on its face"},"content":{"rendered":"

\u201cIn this instance, without a warrant, nor exigent circumstance, the State could only rely upon the exception of a warrantless search incident to a lawful arrest for drunk driving in order to demand a blood test from McCumber. With the U.S. Supreme Court in Birchfield categorically finding that the exception of a warrantless search incident to a lawful arrest for drunk driving is unconstitutional in regard to a blood test, even under an implied consent law, we find \u00a7 60-6,197 is unconstitutional as applied to McCumber. Consequently, we hereby vacate McCumber’s conviction and sentence for refusing to submit to a chemical blood test in violation of \u00a7 60-6,197.\u201d The statute is not unconstitutional on its face. State v. McCumber<\/a>, 295 Neb. 941, 2017 Neb. LEXIS 30 (Feb. 24, 2017).<\/p>\n

The 911 call here was \u201cabout 30 illegals\u201d running into the back of a red semi. Under Navarette, it\u2019s really thin. However, the truck had a refrigeration unit but no seal on the back. The stop was labeled a welfare check and it was done by an experienced interstate truck police officer with 18 years experience. To him, innocent or innocuous factors meant more. Once stopped, the refrigeration unit was running, but no locks. There were multiple different footprints in the dust on the back by the door which was unusual to him. That was sufficient for probable cause based on the reasonable suspicion of smuggling undocumented persons. United States v. Soto, 2017 U.S. Dist. LEXIS 24162 (S.D. Tex. Feb. 21, 2017).*<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cIn this instance, without a warrant, nor exigent circumstance, the State could only rely upon the exception of a warrantless search incident to a lawful arrest for drunk driving in order to demand a blood test from McCumber. With the … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,55,35],"tags":[],"class_list":["post-26002","post","type-post","status-publish","format-standard","hentry","category-consent","category-drug-testing","category-reasonable-suspicion"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/26002","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=26002"}],"version-history":[{"count":1,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/26002\/revisions"}],"predecessor-version":[{"id":26003,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/26002\/revisions\/26003"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=26002"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=26002"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=26002"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}