consent exception in Nebraska

2023SIMONS Cite as 315 Neb. 415 [25] If consent is “granted only in submission to a claim of lawful authority,” the consent is invalid. 54 We agree with the court in State v. Guzman, 55 which held that submitting to a probation officer’s show of authority is coerced by the possibility that the probationer would be arrested for a viola- tion of probation if he did not cooperate.

2023HAMMOND Cite as 315 Neb. 362 relies on two exceptions to justify the reasonableness of the searches, arguing that (1) the consent exception permitted the initial search of Hammond’s vehicle and (2) the search incident to a valid arrest exception justified the subsequent search of Hammond’s person.

2023Because the question of voluntary consent was presented below 52 and whether undisputed historical facts constitute voluntary consent is a question of law, 53 we address the consent exception to the warrant requirement. 52 See State v. Thomas, 303 Neb. 964 , 932 N.W.2d 713 (2019) (appellate court will not consider issue not presented to or passed upon by trial court). 53 State v. Degarmo, supra note 13 . - 434 - Nebraska Supreme Court Advance Sheets 315 Nebraska Reports STATE V.

2023Because the question of voluntary consent was presented below 52 and whether undisputed historical facts constitute voluntary consent is a question of law, 53 we address the consent exception to the warrant requirement. 52 See State v. Thomas, 303 Neb. 964 , 932 N.W.2d 713 (2019) (appellate court will not consider issue not presented to or passed upon by trial court). 53 State v. Degarmo, supra note 13 . - 434 - Nebraska Supreme Court Advance Sheets 315 Nebraska Reports STATE V.

2018The Court stated that “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads” 47 and concluded that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” 48 The Court did not go on to conclude, as Hood argues, that the Fourth Amendment prohibits the use of evidence of a defendant’s refusal in a 45 Birchfield, supra note 1 , 136 S. Ct. at 2185 . 46 See id. 47 Id., 136 S. Ct. at 2185 . 48 Id., 136 S. Ct. at 2186 . - 223 - Nebraska Supreme Court A

2018The Court stated that “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads” 47 and concluded that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” 48 The Court did not go on to conclude, as Hood argues, that the Fourth Amendment prohibits the use of evidence of a defendant’s refusal in a 45 Birchfield, supra note 1 , 136 S. Ct. at 2185 . 46 See id. 47 Id., 136 S. Ct. at 2185 . 48 Id., 136 S. Ct. at 2186 . - 223 - Nebraska Supreme Court A

2018The Court stated that “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads” 47 and concluded that “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” 48 The Court did not go on to conclude, as Hood argues, that the Fourth Amendment prohibits the use of evidence of a defendant’s refusal in a 45 Birchfield, supra note 1 , 136 S. Ct. at 2185 . 46 See id. 47 Id., 136 S. Ct. at 2185 . 48 Id., 136 S. Ct. at 2186 . - 223 - Nebraska Supreme Court A

2016Cite as 293 Neb. 917 [16] But we conclude that Jesse is not a “man” within the meaning of § 43-104.22(11).

2016We have stated that “to terminate a father’s rights through an adoption procedure, the consent of the adjudicated father of a child born out of wedlock is required for the adoption to proceed unless the Nebraska court having jurisdiction over the custody of the child determines otherwise, pursuant to § 43-104.22.”40 That section sets out 11 circumstances under which consent to an adoption is not required from “an adjudi- cated biological father or putative biological father of a minor child born out of wedlock.” Six subsections in § 43-104.22 refer to a “father,” two refer to a “putative fathe

2015See, e.g., People v. Harris, - 671 - Nebraska A dvance Sheets 291 Nebraska R eports STATE v. MODLIN Cite as 291 Neb. 660 234 Cal. App. 4th 671 , 184 Cal. Rptr. 3d 198 (2015) (con- cluding that McNeely does not govern where defendant freely and voluntarily consented to blood test and that such consent satisfies Fourth Amendment); State v. Brooks, 838 N.W.2d 563 (Minn. 2013) (rejecting broad view of McNeely and find- ing that although McNeely eliminated single-factor exigency exception to warrant requirement, warrantless extraction of blood, breath, and urine was still permissible under Fourth A

2015State v. Tucker, 262 Neb. 940 , 636 N.W.2d 853 (2001).

2015State v. Tucker, 262 Neb. 940 , 636 N.W.2d 853 (2001).

2015Other courts have analyzed Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 , 185 L.

2015Other courts have analyzed Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 , 185 L.

2015See, e.g., People v. Harris, - 671 - Nebraska A dvance Sheets 291 Nebraska R eports STATE v. MODLIN Cite as 291 Neb. 660 234 Cal. App. 4th 671 , 184 Cal. Rptr. 3d 198 (2015) (con- cluding that McNeely does not govern where defendant freely and voluntarily consented to blood test and that such consent satisfies Fourth Amendment); State v. Brooks, 838 N.W.2d 563 (Minn. 2013) (rejecting broad view of McNeely and find- ing that although McNeely eliminated single-factor exigency exception to warrant requirement, warrantless extraction of blood, breath, and urine was still permissible under Fourth A

2009Similarly, in In re Adoption of Jaden M., 272 Neb. 789 , 725 N.W.2d 410 (2006), we concluded that the predecessor to the current § 43-104.22(7), which eliminated the consent requirement of certain biological fathers, infringed upon the constitutionally protected parental rights of the father of the child proposed for adoption.

2009Similarly, in In re Adoption of Jaden M., 272 Neb. 789 , 725 N.W.2d 410 (2006), we concluded that the predecessor to the current § 43-104.22(7), which eliminated the consent requirement of certain biological fathers, infringed upon the constitutionally protected parental rights of the father of the child proposed for adoption.

2000Opinions 16, 34, and 77 of the Committee on Professional Ethics and Grievances of the American Bar Association.” Richards, 165 Neb. at 92 , 84 N.W.2d at 144 .

2000Opinions 16, 34, and 77 of the Committee on Professional Ethics and Grievances of the American Bar Association.” Richards, 165 Neb. at 92 , 84 N.W.2d at 144 .

1996The Clark court elaborated that notwithstanding an arrested motorist’s expressed consent or agreement to take a breath test authorized by [§ 60-6,197(4)], the motorist’s subsequent conduct may be the basis for an inference that the motorist has withdrawn or revoked the previous consent to such test or has feigned consent to the test and, therefore, has refused to submit to the statutorily authorized breath test. 229 Neb. at 109 , 425 N.W.2d at 351 .

1996The Clark court elaborated that notwithstanding an arrested motorist’s expressed consent or agreement to take a breath test authorized by [§ 60-6,197(4)], the motorist’s subsequent conduct may be the basis for an inference that the motorist has withdrawn or revoked the previous consent to such test or has feigned consent to the test and, therefore, has refused to submit to the statutorily authorized breath test. 229 Neb. at 109 , 425 N.W.2d at 351 .

1988See, Ontiveros v. Arizona Dept. of Transp., 151 Ariz. 542 , 729 P.2d 346 (1986); People v. Schuberth, 115 Ill.

1988Chadd v. Midwest Franchise Corp., 226 Neb. 502, 506 , 412 N.W.2d 453, 457 (1987). *387 Newman relies on B & R Oil Company v. Ray’s Mobile Homes, 139 Vt. 122 , 422 A.2d 1267 (1980), in which the Vermont Supreme Court, construing lease language identical to the consent requirement in Newman’s lease, embraced a rule . recognizing a lessor’s right to arbitrarily withhold consent to an assignment of a lease.

1988Chadd v. Midwest Franchise Corp., 226 Neb. 502, 506 , 412 N.W.2d 453, 457 (1987). *387 Newman relies on B & R Oil Company v. Ray’s Mobile Homes, 139 Vt. 122 , 422 A.2d 1267 (1980), in which the Vermont Supreme Court, construing lease language identical to the consent requirement in Newman’s lease, embraced a rule . recognizing a lessor’s right to arbitrarily withhold consent to an assignment of a lease.