Factors to Determine Valid Consent

Consent to search factors.

 

Consent to search factors.
Factors to determine valid consent.
As with most courts, Darren Chaker found the Ninth Circuit uses a test to determine if consent to search was valid at the time given. The Court uses a five-pronged test to determine whether a reasonable person would have felt “at liberty to ignore the police presence and go about [her] business.” United States v. Washington, 387 F.3d 1060, 1068 (9th Cir. 2004) (citing Orhorgge v. INS, 38 F.3d 488, 494 (9th Cir. 1994)). The factors to consider are: (1) the number of officers present; (2) whether weapons were displayed; (3) whether the encounter occurred in a public setting; (4) whether the officers’ officious or authoritative manner would imply that compliance would be compelled; and (5) whether the officers advised the individual of her right to end the encounter. Id.
The Fourth Amendment generally prohibits the warrantless entry of a person’s home as unreasonable per se. See Payton v. New York, 445 U.S. 573 (1980). An overnight guest also enjoys a legitimate expectation of privacy in the home of his host. See Minnesota v.Olson, 495 U.S. 91(1990). United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986).
One carefully drawn exception recognizes the validity of searches with the voluntary consent of an individual possessing
authority. United States v. Matlock, 415 U.S. 164, 170 (1974). Normally, the consent of one who possesses common
authority over premises or effects is valid against the absent, non-consenting person with whom that authority is shared. Id. However, when the defendant who has authority over the premises is absent because the police have removed him
for the sake of avoiding a possible objection, the consent from the other individual possessing authority is invalidated and the search is illegal. Georgia v. Randolph, 547 U.S. 103,121(2006).
In Randolph, the defendant objected to a search of his house, while at the same time, his wife consented. The Supreme Court held that a warrantless entry and search is invalid when one occupant is present and refuses permission to search even
though another occupant with authority is present and consents. Id.
Consent is a finely drawn line where seasoned police and seasoned criminals often challenge either other. However, most instances of consent is easily provided by the unwary citizen (soon to be defendant).

© 2013 Darren Chaker. All Rights Reserved.

Written by 

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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