Functional Equivalent Border Search


Functional equivalent border search, allowed to protect the USA, as an expanded border.
Functional equivalent border search, allowed to protect the USA, as an expanded border.
Darren Chaker,,  finds the Ninth Circuit has established a standard for categorizing a stop as a “functional equivalent” border search. A comparison of absolute time and spatial differences alone is not enough to
distinguish between a search at the border’s functional equivalent and an extended border search. United States v.Abbouchi, 502 F.3d at 854-55. Rather, where the search occurred must also be considered.
Searches that occur at the last practicable opportunity before passage of contraband over the international border are “functional equivalent” border searches. See id. at 850 (search of UPS package heading overseas, Louisiana Hub was functional equivalent of the border because UPS was the last practicable opportunity to inspect package before it was shipped overseas).
Further, searches that occur at the first practicable opportunity after entry of contraband in aircrafts or ships are “functional equivalent” border searches. See Almeida-Sanchez v. UnitedStates, 413 U.S. 266, 273 (1973) (the Supreme Court noted that “a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City” would be at the functional equivalent of the border); see also United States v. Potter, 552 F.2d 901 (9th Cir. 1977) (agents used surveillance to follow an airplane from an El Paso airport into Mexico and back to a Las Vegas airport, held that search at Las Vegas airport was at “functional equivalent” of the border); United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976) (court found search of a boat recently at port was at the functional equivalent of the border, but remanded to determine if boat sailed from Mexican waters); United States v. Solmes, 527 F.2d 1370 (9th Cir. 1975) (“with respect to vessels coming from outside the territory of the United States, a vessel’s anchorage in a domestic port is the functional equivalent of the border.”)
The above searches were deemed “functional equivalent” border searches due to impracticality of establishing fixed checkpoints in United States airspace or territorial waters. See Almedia-Sanchez, 413 U.S. at 273; Tilton, 534 F.2d at 1365. It unlikely that aircrafts or vessels will pick up or discharge passengers or cargo between their entry in the United States and their points of destination (airports or shipping ports/marinas). Tilton, 534 F.2d at 1365.

© 2013 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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