Valid Consent to Search Computer

Computer Search with Forensics
Darren Chaker computer search by police often yields evidence for unsophisticated criminals.

Additional research by Darren Chakerhttp://darrenchaker.us ,shows another exception to the Fourth Amendment’s prohibition against warrantless searches and seizures is when an individual consents to the search of his property. “Consent
operates as a waiver of Fourth Amendment rights if, by a preponderance of the evidence, it is found to have been given voluntarily under the totality of the circumstances.” United States v.Webster, 162 F.3d 308, 333 (5th Cir. 1998).

When determining whether consent was voluntarily given, this Court considers the totality of the circumstances, in light of the following six factors: 1) the suspect’s custodial status; 2) the presence of coercive police procedures; 3) the extent and level of the suspect’s cooperation with law enforcement; 4) the suspect’s awareness of his right to refuse consent; 5) the appellant’s
education and intelligence; and 6) the suspect’s belief that no incriminating evidence will be found. United States v. Mata, 517 F.3d at 290. “When consent is the justification for the search, the government bears the burden of demonstrating that it was freely and voluntarily given and was not simply an acquiescence to a claim of lawful authority.” United States v. Gomez-Diaz, 712 F.2d 949, 951 (5th Cir. 1983).

Often consent to search is given by a roommate. The 9th Circuit Court of Appeal holds that a search conducted after a cotenant’s objection violates the 4th and 14th Amendments to the Federal Constitution. In United States v. Murphy, 516 F.3d 1117, 1124 (9th Circuit 2008), the 9th Circuit states, “[W]hen a co-tenant objects to a search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant the search is invalid as to the objecting co-tenant.”

Likewise, belated consent to search does not make evidence seized in the initial consent voluntary if the initial seizure of the person was unlawful. In United States v. Melendez-Gonzalez, 727 F.2d 407, 413-14 (5th Cir. 1984). In that case, Border Patrol Agents had conducted an illegal search of the defendant’s automobile trunk, but later, following the search, the defendant signed a consent form giving the Agents permission to conduct a search of the car. Id. at 413. The Court correctly noted in suppressing the evidence seized from the trunk that “[t]here is no authority…which justifies an earlier illegal search based upon a later consent to an additional search.” Id. at 414.

Last, the United States Supreme Court dealt with the now familiar ‘fruit of the poisonous tree’ doctrine in Wong Sun
v. United States
, 371 U.S. 471 (1963). Wong Sun dealt with a confession arising out of an illegal arrest, but it would be equally applicable to a confession arising out of an illegal search.

© 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 www.orrick.com/lawyers/Bio.asp?ID=225990 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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