Search Warrants Federal Law by Darren Chaker

darren chaker article
Search warrant being served, article by Darren Chaker

 

darren chaker article

Search warrant being served, article by Darren Chaker

Darren Chaker article on search and seizure law.  The “‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”‘ Payton v. New York, 445 U.S. 573, 585 (1980) (citation omitted). Indeed, the Fourth Amendment “ordinarily prohibits] the warrantless entry of a person’s house as unreasonable per se.” Georgia v. Randolph, 547 U.S. 103, 109 (2006). Often times, police gain entry to a home or hotel through ‘apparent authority’, often a guest or roommate.

“A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). “Almost a century ago the Court stated in resounding terms that the principles reflected in the [Fourth] Amendment. . . ‘apply to all invasions on the part of the government and its employees of the sanctity of a man’s home.”‘ Payton, 445 U.S. at 585 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 586 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)).

Indeed, “a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.” Id. at 587-588. See also id. at 588 n.26 (“‘It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.”‘) (quoting Jones v. United States, 357 U.S. 493, 497 (1958)).

Darren Chaker also notes in Stoner v. California, 376 U.S. 483 (1964), for example, a hotel clerk’s consent to police entering the defendant’s room did not cure the officers’ failure to get a warrant. “It is true,” the Court explained, “that when a person engages a hotel room he undoubtedly gives ‘implied or express permission’ to ‘such persons as maids, janitors or repairmen’ to enter his room ‘in the performance of their duties.’ But the conduct of the night clerk and the police in the present case was of an entirely different order.” Id. at 489 (quoting United States v. Jeffers, 342 U.S. 48, 51 (1951)). The conduct was to search the defendant’s room for evidence of armed robbery, and there was “nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the [defendant] to permit the police to search [his] room.” Id.

Likewise, in Chapman v. United States, 365 U.S. 610 (1961), a landlord’s consent to police entering the defendant’s home did not cure the officers’ failure to get a warrant. Though the landlord had passed the home, smelled what he thought might be illicit liquor, and had the right under state law to inspect the premises for waste, the Court rejected the notion that he thus had authority to admit the police: “‘ [T]heir purpose in entering was not to view waste but to search for distilling equipment,”‘ and “to uphold such an entry, search and seizure ‘without a warrant would reduce the Fourth Amendment to a nullity and leave tenants’ homes secure only in the discretion of landlords.”‘ Id. at 616-617. See also, United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000) (no apparent authority where officer knew person who consented to entry, despite answering front door, was not registered tenant and had not been seen in the building by other residents).

The Court reaffirmed these principles in Georgia v. Randolph, 547 U.S. 103 (2006): “A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant.” Id. at 112.

In sum, the law provides basic instruction on the obligations of police prior to relying on apparent authority of a person to conduct entry, or search of a residence or hotel.

 

About the Author

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 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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