Sun. Nov 29th, 2020
Darren Chaker article border patrol search


Darren Chaker article border patrol search
Article by Darren Chaker about border checkpoints

Darren Chaker looks at the Fourth Amendment’s border search exception, permitting warrantless and suspicionless “routine” searches of belongings and persons at the U.S. border, should not apply to digital devices like Ms. Molina-Isidoro’s cell phone. All border searches of the data stored or accessible on digital devices—whether “manual” or “forensic”—are “non-routine” and thus fall outside the border search exception. This is because any search of digital data is a “highly intrusive” search that implicates the “dignity and privacy interests” of the traveler. U.S. v. Flores- Montano, 541 U.S. 149, 152 (2004). Under the Supreme Court’s ruling in Riley v. California, 134 S. Ct. 2473 (2014), border agents should be required to obtain a probable cause warrant to search the data stored or accessible on a digital device. The constant border-search-computer is sometimes reprehensible conduct, but other times it is not. 

The Riley Court presented an analytical framework that complements the border search doctrine’s traditional consideration of whether a search is “routine” or “non-routine.” The Court explained that, in determining whether to apply an existing exception to the warrant and probable cause requirements to a “particular category of effects” such as cell phones, individual privacy interests must be balanced against legitimate governmental interests. Id. at 2484. The government’s

Darren Chaker finds the interests are analyzed by considering whether a search conducted without a warrant and probable cause is sufficiently “tethered” to the purposes underlying the exception. Id. at 2485. In the case of digital data at the border, not only are individual privacy interests at their highest in devices such as cell phones and laptops, searches of digital devices without a warrant and probable cause are not sufficiently “tethered” to the narrow purposes justifying the border search exception: immigration and customs enforcement.

However, even if such “tethering” may be considered sufficient—meaning that there is a clear nexus between enforcing the immigration and customs laws, and conducting searches of digital devices at the border without a warrant and probable cause—the extraordinary privacy interests that travelers have in their cell phones and laptops outweigh any legitimate governmental interests. Prior to the rise of mobile computing, the “amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile.” U.S. v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013) (en banc). Today, however, the “sum of an individual’s private life” sits in the pocket or purse of any traveler carrying a cell phone, laptop or other digital device. Riley, 134 S. Ct. at 2489.

By Darren Chaker

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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