Consent to Search Appeal Standard

Consent to search, Darren Chaker,
provides a court’s approval of consent searches “without the most careful scrutiny would sanction the possibility of
official coercion ….” See Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S.Ct. 2041 (1973). “[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324 (1983).

The Government has the burden of  proving consent to search by a preponderance of the evidence. See United States v. Bourjaily, 483 U.S. 171, 176 (1987), citing
United States v. Matlock, 415 U.S. 164 (1974), for the rule that
“voluntariness of consent to search must be shown by preponderance of the evidence.” See United States v.Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)(holding, “upon a careful review of the record,” that the “government established, by a preponderance of the evidence, both that [defendant] consented
to the search at [defendant’s residence] and that his consent was voluntary.”)

“Although not as rigorous as the reasonable doubt or clear and convincing standards, the preponderance standard is not toothless. It is the district court’s duty to ensure that the Government carries this burden by presenting reliable and
specific evidence.” See United States v. Lawrence, 47 F.3d 1559, 1566
(11th Cir. 1995)(vacating an enhanced sentence for clear error and directing
the District Court on remand to “base its findings on reliable and specific
evidence rather than on the conclusory language of a PSR, the sparse evidence
given at a Rule 11 hearing, and the prosecution’s mere reference to evidence
adduced in the separate trials of co-indictees.”).

Most circuit appellate courts reviews “findings of fact for clear error” when considering a defendant’s appeal from the denial of a motion to suppress evidence. See United States v. Pratt, 438 F.3d at 1268. In that case, the Eleventh Circuit found a court “cannot find clear error unless ‘we are left with a definite and firm conviction that a mistake has been committed.’ [citation omitted]. Although the clear error standard is ‘purposefully deferential to the district court, we are not
required to rubber stamp the district court’s findings simply because they were
entered.’ [citation omitted]. Review for clear error ‘does not mean no review.’
[citation omitted]” See United States v. Crawford, 407 F.3d 1174, 1177
(11th Cir. 2005).

© 2015 Darren Chaker. All Rights Reserved.

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Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

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