CONSENT ONCE REMOVED | Legal Information Institute

Pearson v. Callahan

Issues

1. Whether police officers’ warrantless entry into a suspect’s home violates the Fourth Amendment, where the confidential informant, who was invited into the suspect’s home, established probable cause and signaled the officers to enter and make an arrest?

2. Does case law from other jurisdiction upholding such entries allow the police officers to assert a qualified immunity defense?

3. Should the Supreme Court overrule its decision in Saucier v. Katz, where it formulated a two-pronged test for determining whether qualified immunity applies?

Court below

United States Court of Appeals for the Tenth Circuit

The Utah police, without obtaining a warrant, arrested Afton Callahan and searched his home after Callahan was caught selling methamphetamine to a confidential informant. Callahan brought a civil suit alleging that the officers violated his Fourth Amendment right to be free from warrantless and unreasonable searches. The officers assert that Callahan waived his privacy right when he invited a confidential informant into his home because he assumed the risk that the informant would divulge illegal activity to the police. They also argue that the “consent once removed” doctrine allows a warrantless search once a confidential informant is invited into the home and establishes probable cause. In the alternative, the officers raise a “qualified immunity” defense, which protects government officials from liability where a constitutional right is not clearly established and they could reasonably believe their conduct is constitutional. Callahan claims that the officers’ reasoning is unfounded; inviting the confidential informant into his home does not mean that officers can subsequently enter and search his home without a warrant. Furthermore, the consent once removed doctrine, as applied to confidential informants, has not been accepted by the Supreme Court or the Tenth Circuit. In this case, the Supreme Court will decide whether the officers violated the Fourth Amendment; whether they are entitled to the qualified immunity; and whether the two-pronged qualified immunity test as articulated in Saucier v. Katz, should be overruled.

Questions as Framed for the Court by the Parties

1. Several lower courts have recognized a “consent once removed” exception to the Fourth Amendment warrant requirement. Does this exception authorize police officers to enter a home without a warrant immediately after an undercover informant buys drugs inside (as the Sixth and Seventh Circuits have held), or does the warrantless entry in such circumstances violate the Fourth Amendment (as the Tenth Circuit held below)?

2. Did the Tenth Circuit properly deny qualified immunity when the only decisions directly on point had all upheld similar warrantless entries?

3. In addition to the questions presented by the petition, the Parties are directed to brief and argue the following question: “Whether the court's decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

On March 19, 2002, Brian Bartholomew entered the home of Afton Callahan under the pretense of wanting to purchase methamphetamine. See Brief for Petitioners, Pearson at 4. In reality, Bartholomew was a confidential informant working with the Central Utah Narcotics Task Force (“Task Force”) to catch Callahan dealing narcotics. See Callahan v.