Implied Consent and Express Consent to Search

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Implied v. Express Consent by Darren Chaker

Express vs. Implied Consent: A person’s consent to search may be “express” or “implied.” (Torbet v. United Airlines, Inc. (9th Cir. 2002) 298 F.3rd 1087, 1089 (People v. Panah (2005) 35 Cal.4th 395, 466-467.)
Express Consent is when answering in the affirmative when asked for consent to search is the most obvious example of an “express consent.”
Implied Consent exists when, considering the “totality of the circumstances,” a reasonable person would have understood that he is agreeing to a search. (United States v. Jenkins (4th Cir. 1993) 986 F.2nd 76, 79.)
For example entering a court house or other government building implies consent to search. Upon entering a military base where signs are posted warning that persons on the base are subject to being searched. (United States v. Ellis (5th Cir. 1977) 547 F.2nd  863, Naval base; United States v. Jenkins, supra; Morgan v. United States (9th Cir. 2003) 323 F.3rd 776.)
On the other hand, consent to search may be limited by the suspect if he does not limit the consent to a specific area. For example, consent to search one’s car, unless specifically limited, includes the whole car and any containers in the car. (People Clark (1993) 5 Cal.4th 950, 977-980.)
Nonetheless, consent to search has to be given freely and voluntarily, with a knowledge of the right to refuse. If the suspect reasonably misconstrues, due to an officer’s misrepresentations, the purpose of the search, it will probably be held to be involuntary. (See People v. Reeves (1964) 61 Cal.2nd 268, 273; People v. Mesaris (1970) 14 Cal.App.3rd 71.)
But, a ruse is but one factor to consider. If, under the totality of the circumstances, a suspect is not materially misled as to the privacy rights he is giving up by consenting, the search will be held to be valid. (People v. Avalos (1996) 47 Cal.App.4th 1567.)

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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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