Mon. Oct 18th, 2021
darren chaker article

 

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.

 

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory 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, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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