Scott Street, an associate in Akin Gump’s LA office, offers the following commentary on the oral argument in Pearson v. Callahan (07-751).

When it heard oral argument in Pearson v. Callahan last week, the Supreme Court wrestled "“ as it has done often in recent years "“ with a potentially enormous expansion to the list of circumstances that justify an exception to the Fourth Amendment's warrant requirement.

A Brief Background

To recap, Pearson arose out of a drug buy/bust that was organized by a narcotics task force in central Utah.  A confidential informant identified Afton Callahan as a drug dealer in the area and arranged to purchase $100 worth of methamphetamine from him.  The task force gave the informant a marked bill, wired him, and followed him to Callahan's neighborhood.  The police directed the informant to complete the transaction and then give a signal to officers that the purchase had been completed.  Once they received the signal, the officers raided the home and found Callahan with the marked bill and methamphetamines.  The officers arrested Callahan and two of his friends.

Callahan was charged in Utah state court with possession and distribution of methamphetamines.  Based on the officers' warrantless entry into his house, he challenged the evidence as inadmissible, but the trial court admitted the evidence, reasoning that the officers' entry was justified under the exigent circumstances exception to the warrant requirement.  The Utah Court of Appeals reversed that decision and also rejected the state's argument that the evidence was admissible under the "inevitable discovery" doctrine.  Callahan then filed a civil claim against the officers under 42 U.S.C. § 1983.  Unlike the state, the officers argued that their warrantless entry into the home was justified under the "consent-once-removed" doctrine.  Under that doctrine, the consent that a homeowner gives to one individual when he invites the person inside his home is transferred to police officers whom the invitee summons into the home based on probable cause.

The federal district court in Utah questioned whether the Supreme Court would adopt such a rule, which had previously been recognized in only three circuits.  However, it dismissed the claim against the officers on qualified immunity grounds, finding that the officers could reasonably have believed that the consent-once-removed doctrine justified their actions.  The U.S. Court of Appeals for the Tenth Circuit reversed.  It adopted a variation of the consent-once-removed doctrine, which it applied "when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause, and then immediately summons other officers for assistance."  However, the Tenth Circuit refused to extend that principle to confidential informants.  In addition, the Tenth Circuit held that qualified immunity did not protect the officers because they could not have reasonably believed that their entry satisfied one of the two recognized exceptions to the warrant requirement"”consent and exigent circumstances.

The Fourth Amendment Merits

Like the Tenth Circuit, the Supreme Court at oral argument did not seem troubled by the consent-once-removed doctrine as it applies to undercover officers.  Indeed, Justice Alito ridiculed Callahan's attorney for even suggesting otherwise, saying that he was "advocating a rule that is going to get police officers killed."  Justice Kennedy said that a rule prohibiting police officers from making a warrantless entry if they "create the exigency" (as they almost always would in sending an undercover officer into a drug buy) would be "a dangerous rule."  Even Justices Souter and Ginsburg, who both criticized expanding the consent-once-removed doctrine to cover informants, suggested that a rule covering undercover police officers would be justified based on an analogous probable cause theory that views the "knowledge of one police officer as the knowledge for all [police officers]."

Expanding the rule to cover confidential informants clearly bothered some of the Court's more liberal justices, who imagined a slippery slope whereby police officers could enter a home without a warrant anytime they get a signal from an individual on the inside of the home that gives them probable cause to believe a crime is being committed inside, even if that signal is simply a phone call from a visitor in the home.  As the Tenth Circuit suggested below, that scenario would seem to run afoul of cases like Georgia v. Randolph, which hold that police may not enter a home based on the consent of one person with apparent authority to do so if another person with authority to consent refuses the entry.  But if the Court is willing to adopt the consent-once-removed doctrine for police officers, it makes little sense not to extend it to confidential informants who are acting under the express direction of the police and whom the Court would treat as government actors under other Fourth Amendment doctrines.

Ultimately, the debate over consent-once-removed reflected a larger concern among some justices about the direction the Court has taken in its Fourth Amendment decisions.  As Justice Ginsburg noted at one point, the warrant requirement is the "main rule" of the Fourth Amendment.  Here, the confidential informant identified Callahan as a possible target.  The task force sent the informant in on a dry run to ensure that drugs were present at the home and to arrange a sale.  They then waited two hours before sending the informant back in to make the purchase.  At that point, they had probable cause to search the home and to arrest Callahan, but instead of getting a warrant to do so, they arranged the buy/bust and entered Callahan's home without a warrant.

Thus, however the Court chooses to support its decision doctrinally, the merits of the Fourth Amendment claim in Pearson will turn on this difficult question:  Is the touchstone of the Fourth Amendment the warrant requirement or is it "reasonableness"?

Saucier Two-Step

The difficulty of that question prompted the Court to ask the parties whether it should modify its standard for evaluating qualified immunity defenses.  In Saucier v. Katz, the Court developed a two-step test that all lower federal courts must conduct in measuring a qualified immunity claim.  First, the court must determine whether a constitutional violation has occurred.  Second, if a violation did occur, the court must determine whether that right was "clearly established." 

Not surprisingly, many judges hate the Saucier test.  At one point, the Chief Justice recalled, "I had a few of these cases in courts of appeals [and] I thought it was very odd that I had to go and decide a difficult constitutional issue and then not worry about it because in one sentence you say well, but the issue is not clearly established and so it's qualified immunity."  The Chief Justice also suggested that the test was "unworkable, or at least frustrating."  Justice Breyer stated that, "[r]ather than having the judges answer each [constitutional question] and getting everything mixed up, why not just have them take whatever is the easier path?  As a judge, I like to take what is the easier path."

On another point, the justices struggled to imagine the contours of "clearly established" law.  Under Saucier, Harlow v. Fitzgerald, and the Court's other qualified immunity cases, the law must be so clearly established that no reasonable state actor could believe that his conduct was lawful under the circumstances.  The Court seemed hostile to Callahan's suggestion that only Supreme Court cases and cases from the official's home circuit could constitute "clearly established" law, even if the home circuit's law conflicted with the law from every other circuit.

Part of the problem with Saucier, of course, stems from the fact that there are hundreds of federal judges deciding thousands of constitutional questions every year.  That creates a number of conflicts that make it nearly impossible to say that an official has violated "clearly established" law.

Ironically, the Court built Saucier's two-step test to encourage the development of constitutional law, so that public officials did not repeatedly avoid liability simply because a court had not declared the conduct unlawful.  Ultimately, this Court will have to determine whether that goal is worth the burden it places on federal judges.  Neither of the parties in Pearson argued that Saucier should be overruled and only two of the amici that filed briefs in the case argued for such a draconian result.  Most suggested tweaking Saucier in a way that makes it less rigid.  A less rigid rule would appeal to this Court, although it could also give it an excuse to avoid the difficult constitutional questions that we expect it to answer.

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