The Fourth Amendment, Once Removed: The Supreme Court Examines a New Search and Seizure Loophole

By SHERRY F. COLB


Monday, Oct. 13, 2008

On October 14, the U.S. Supreme Court will hear oral argument in Pearson v. Callahan. This case raises several questions, but the one on which this column will focus is this: Does the Fourth Amendment right against unreasonable searches and seizures allow police to enter a private home without a warrant, after an informant gains entry into the home and obtains probable cause by deceptively posing as the resident's friend or associate?

Under a broad "consent once removed" doctrine, the answer is yes. But in Pearson, the Court will examine that doctrine. I here explain the doctrine and analyze its legitimacy as a matter of constitutional law.

The Facts of This Case

The particular facts at issue in Callahan are not especially sympathetic. Police suspected Afton Callahan of dealing methamphetamine. To investigate their suspicions, police asked a confidential informant (a private person who, like many informants, had himself been charged with a drug offense) to attempt to buy methamphetamine from Callahan. The informant did as he was instructed, and Callahan invited him into Callahan's home to transact the $100 sale of methamphetamine.

Once the informant was inside Callahan's home and had completed the drug purchase, he gave a signal to the task force officers for whom he was working. Members of the Central Utah Narcotics Task Force immediately entered Callahan's home, conducted a protective sweep of the premises, and found evidence of drug sale and possession. They did so, they now allege, on the basis of the resident's "consent once removed," which they contend he gave by knowingly exposing evidence amounting to probable cause to a police informant.

Callahan pleaded guilty but then successfully challenged the legality of the search and had his conviction overturned in the state courts. Subsequently, he filed a civil suit for damages, contending that police had violated his Fourth Amendment rights by entering his home without a warrant.

The fact that this case involves a lawsuit rather than a criminal conviction makes it somewhat unusual. Ordinarily, a suspect on whom evidence is found will challenge the legality of police investigation only through a motion to suppress the evidence. Because this is a civil suit for damages, however, Callahan must prove not only that the police violated the Fourth Amendment but that the relevant Fourth Amendment doctrine was "clearly established" at the time of their conduct, thus eliminating the officers' defense of qualified immunity.

In this column, I focus on the Fourth Amendment question presented. Yet the Court could decide, contrary to prior precedent, that it can avoid the Fourth Amendment question on the merits and rule in the government's favor on qualified immunity grounds. It may do this if it finds that whether or not Callahan is correct as a matter of law, the principle he asks the Court is accept was not clearly established at the time the officers entered his home.

Unsympathetic Facts Obscure the Significance of the Fourth Amendment Principle

It is easy to examine the facts here and wonder what all the fuss is about. Here we have a drug dealer who invited another person - whom the dealer believed to be interested in purchasing drugs from him - into his home. It was appropriate for police to enter Callahan's home, because the evidence that the informant observed (indeed, jointly created with Callahan) provided a strong basis for either a search or an arrest or both. Had the police sought a warrant, they would simply have repeated these facts for a magistrate, and the magistrate would almost certainly have issued a warrant.

Readers may thus ask, Isn't it the height of chutzpah for Callahan to demand that the police pay him damages for their having failed to go to a magistrate to obtain a warrant that we can say with virtual certainty they would successfully have obtained?

If Callahan's facts represented the only context in which the "consent once removed" doctrine could apply, the answer might be yes. But consider a hypothetical set of (arguably more sympathetic) facts to which it could also be applied.

John Doe belongs to a political organization that the police in his town dislike. When the police notice a bumper sticker from the organization affixed to John Doe's car, they decide to investigate him and see what they can uncover about the group in general and about Doe in particular. To this end, police ask an old high-school classmate of Doe's, Farah Jailin, who has been charged with several counts of drug-dealing, to reestablish a connection with Doe and perhaps receive lenient treatment in her own case.

Farah calls John and asks whether he would like to meet for breakfast; he says yes, and they meet at a local diner. Farah tells John that she wants to become part of his organization. John is delighted to hear this and invites Farah to his home to discuss things further.

While Farah and John are chatting at his house, Farah asks him whether he agrees with everything that his organization does. John responds that the only stance of theirs that he dislikes is their opposition to marijuana use. John then confides in Farah that he has smoked marijuana a few times. Farah is thrilled to hear this, because she believes it gives the police probable cause to arrest John. She excuses herself to visit the restroom and uses her cell phone to call an officer who is waiting outside in an unmarked police vehicle. She tells the officer that she has just heard a confession from John regarding illegal drug use. The officer thanks her and - without any warrant or permission from John - promptly opens the door to John's house and enters, along with three other officers who were waiting with him in the vehicle.

It is unclear whether police have probable cause in this case to search or arrest John, because his confession is somewhat vague. No neutral magistrate, moreover, has had the opportunity to deliberate over the question. Yet the police are entering Doe's home at the invitation of an informant whose primary qualifications for working with the police are her incentive to get John into trouble (and thus help herself) and her ability to lie well enough to gain an invitation into John's home.

"Pretend Friends" and Consent for Fourth Amendment Purposes

In response to this hypothetical example, readers might first question the legality of the police use of an informant, such as Farah Jailin, to insinuate her way into John Doe's home on behalf of the police, at a time when they had no basis for suspecting John of a crime. In a series of cases culminating in the 1971 decision in United States v. White, however, the U.S. Supreme Court held that such undercover operations do not trigger the Fourth Amendment right against unreasonable searches and seizures. That is, a police officer may lawfully pretend to be your friend (or recruit an informant to do so on his behalf) in an effort to gather information about you, without anyone's first having to establish a basis for suspecting you of wrongdoing.

This is because, for purposes of the Fourth Amendment, you have no reasonable expectation of privacy in your friends. Undercover operations are, accordingly, not "searches." This means that not only may police infiltrate your life if they have reason to suspect you of a crime; they may do so without a reason. Recruiting Farah Jailin to investigate John Doe is therefore lawful, under existing Fourth Amendment case law, despite the fact that Doe has not given police any basis for suspecting that he has violated the criminal law.

Up until relatively recently, police who used an informant (or an undercover police officer) to obtain confidences (or secure home invitations) from a target would still have to obtain a warrant (in the absence of an exception to the warrant requirement) before conducting an official home-entry, either to search or to arrest. Once an informant or undercover officer secured grounds for entering a suspect's home, in other words, she (or other officers) would have to appear before a neutral magistrate, who would evaluate the alleged grounds and determine whether or not they in fact supported issuance of a warrant.

One established exception to both the warrant rule and the underlying probable cause requirement is "consent." If a suspect voluntarily agrees to allow the police to enter and/or search his home, then the police may do so whether or not they have factual grounds for the entry or search, and whether or not a magistrate has issued a search or arrest warrant. When you stop at a police checkpoint, for example, and an officer asks whether you would mind if he looked in your trunk, your consent ("Sure, go ahead") renders his subsequent search of the trunk legal, even if the police officer was just curious and had no basis for believing he would find anything unlawful there.

The Doctrine of "Consent Once Removed" Now Before the Supreme Court

Four federal Circuits (the Sixth, Seventh, Ninth, and Tenth) have adopted varying versions of a doctrine known as "consent once removed." According to this doctrine, police do not need conventional "consent" (in which a person voluntarily agrees to have the police enter his house or search his property) for a warrantless search to pass Fourth Amendment muster.

Rather, once a person has made "friends" with an informant or undercover police officer and exposed his house (and potential evidence of crime within that house) to the "friend," this voluntary exposure - coupled with the "friend's" signal of probable cause to the police - amounts to the equivalent of consent to an official police home entry or search by other officers.

Recall our hypothetical case. Under the prior Supreme Court "pretend friends" doctrine, the police had authority to send Farah Jailin to befriend John Doe and gain entry into his home by false pretenses. Under the "consent once removed" doctrine, if embraced fully by the Supreme Court (as applying to informants and undercover officers alike), once Farah successfully accomplished the home entry and heard what she and the police considered to be "probable cause" for a search or arrest, she could also consent to other officers entering John's home.

The Problem with the "Consent Once Removed" Doctrine

The problem with this doctrine is simple: it rests on the untenable fiction that when we invite people we perceive as our friends into our home and expose them to criminal evidence, we thereby delegate to those friends the authority to consent to police entries into our home.

The "pretend friend" doctrine and the "consent" doctrine in fact rest on very different premises. The premise of the "pretend friend" doctrine is that the police may behave in the same way as our friends might behave (inviting confidences and acting as though their relationships with us are reciprocal) without depriving us of anything that we really ever had (i.e., protection against betrayal by our friends). In such undercover operations, in other words, police benefit from their resemblance to private people who initiate relationships with other private people. This is not an "exception" to the warrant requirement but an occasion on which the Fourth Amendment does not apply at all, because there is no search.

The premise of the "consent" doctrine, by contrast, is that even though the Fourth Amendment ordinarily requires police to observe certain formalities before they may conduct a "search" or a home entry, a search target may decide to cooperate with the police - as a good citizen - and voluntarily surrender the right to demand that police have a warrant and/or probable cause before they invade his privacy. When police have "consent," they do not need any factual basis for conducting a search. The consent search, however, is no less an official search than any other - by virtue of consent, it simply becomes a "reasonable" one.

The "consent once removed" doctrine mixes these two premises to produce doctrinal incoherence. For purposes of getting a foot in the door, the police have an informant (or an undercover officer) pretend to be a friend visiting another friend. There is no "search" precisely because the private person targeted does not know that police are involved at all and believes he is simply choosing to invite another private person into his home.

Once in the door, though, the friend morphs into an agent of the police who has somehow already obtained "consent" to a home entry that carries with it an implied consent to other officers' entering as well, although only if there is probable cause. The very fact that there must be probable cause, moreover, implicitly acknowledges that this "consent" doctrine is really not about anything like consent.

How the "Consent Once Removed" Doctrine Mixes Two Incompatible Ideas

There are, of course, flaws in both the "pretend friend" and the "consent" doctrines - flaws that stem from the unreality of the assumptions, respectively, that friends in the real world behave anything like the human wiretaps that infiltrate a target's life in undercover operations, and that suspects truly act "voluntarily" when they say yes to a police search of their residences. But each of these doctrines at least has an internal logic that animates it, however artificial that logic might be.

To accept the "consent once removed" doctrine, by contrast, is to establish an exception to the warrant requirement that melds together two incompatible ideas - the idea that police and their agents can avoid Fourth Amendment constraints by acting the part of private individuals, on the one hand, and the idea that inviting a "friend" into the house and exposing that "friend" to probable cause is tantamount to voluntarily permitting police officers to forgo the warrant requirement, on the other.

The Court should accordingly hold that consent to a police search can only be given by someone who actually knows he has extended consent to a police officer. Otherwise, a person's provision of probable cause - whether through an informant or through an undercover police officer - should enable police to seek a warrant from a neutral magistrate, just as any other probable cause in the absence of exigency would so empower the police.


Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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