Oral argument: Oct. 14, 2008
Appealed from: United States Court of Appeals, Tenth Circuit (July 16, 2007)
QUALIFIED IMMUNITY, CONSENT ONCE REMOVED, WARRANTLESS SEARCH, FOURTH AMENDMENT, EXCEPTION, SAUCIER
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.
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?”
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?
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. Millard, 494 F.3d 891, 893 (10th Cir. 2007). After arming him with a microphone, a transmitter, and a marked $100 bill, the officers took Bartholomew to Callahan’s home to make the purchase. See id. at 893. Upon arrival, Callahan’s daughter invited Bartholomew into the home, and Bartholomew purchased a gram of methamphetamine with the marked bill. See Petition for Writ of Certiorari at 2–3. After the purchase was complete, Bartholomew gave a prearranged signal to the waiting officers, and they entered the home. See Callahan, 494 F.3d at 893. The officers searched the home and found evidence to arrest Callahan for possession and sale of narcotics. At no point during these events did the officers have a warrant to search the premises or to arrest Callahan. See id.
Utah prosecuted Callahan for possession and distribution of methamphetamine. See Callahan, 494 F.3d at 893. At trial, Callahan moved to exclude the evidence from the warrantless search, claiming that under the Fourth Amendment he was protected from unreasonable searches and seizures. See id. at 894; U.S. CONST. amend. IV. The court denied Callahan’s motion and admitted the evidence, finding that exigent circumstances justified the search. See Callahan, 494 F.3d at 894. Following this ruling, Callahan entered into a plea agreement with the state, but reserved his right to appeal the trial court’s decision to admit the evidence. See Utah v. Callahan, 93 P.3d 103, 105 (Utah Ct. App. 2004). The Utah Court of Appeals found that the trial court erred in admitting the evidence, and reversed the conviction. See Callahan, 494 F.3d at 894.
Callahan then filed a civil suit against several Task Force officers and Utah municipalities in the U.S. District Court for the District of Utah, claiming they violated his constitutional rights. See Callahan, 494 F.3d at 894. The court dismissed the claims against the municipalities and granted summary judgment to the officers. See id. It found they were shielded from the suit under the “qualified immunity” doctrine, which states even if government actors violate a person’s constitutional right, they are protected from a civil suit if the right in question is not clearly established and could reasonably believe their conduct was constitutional. See id. at 894–895. The court did not think the officers’ search violated a clearly established right, because of the existence of the “consent once removed” doctrine, which allows law enforcement officers to enter a home when someone with the authority to do so gives consent to an undercover officer to enter the home. See id. at 894, 896. The Court of Appeals for the Tenth Circuit had yet to rule on this doctrine, but its existence in other circuits created enough uncertainty for the court to decide that the right in question was not clearly established. See id. at 894.
The Tenth Circuit reversed the District Court’s ruling. See Callahan, 494 F.3d at 898–99. The court rejected the qualified immunity defense, because it found that the right to be free from unreasonable searches was so clearly established, that it was not reasonable for officers to believe that the Fourth Amendment permitted their warrantless entry into Callahan’s home. See id. The court declined to apply the consent once removed doctrine, because it did not want to extend the doctrine’s reach from undercover police officers to confidential informants. See id. It questioned whether the consent once removed doctrine is well established, stating that just because other circuits adopted the exception was not reason enough for it to follow suit. See id. The Supreme Court must now determine the scope of the consent once removed doctrine, as well as the parameters for the application of qualified immunity.
Consent Once Removed Doctrine
In Pearson v. Callahan, the Supreme Court will consider the applicability of the consent once removed doctrine; and its decision may impact all levels of law enforcement. See Brief of the United States in Support of Petitioners at 1–2. The doctrine “applies when an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance.” Callahan v. Millard, 494 F.3d 891, 896 (10th Cir. 2007). Law enforcement officials argue that informants are crucial components in their fight against drug trafficking. See Callahan, 494 F.3d at 897. If the Court limits the ability of police departments to protect informants, it could severely impact the ability of officers to do their jobs effectively by causing delays and jeopardizing the safety of all involved, or even halt the use of informants altogether. See id.; Petitioner’s Reply Brief at 3–4. This situation could not be solved by obtaining a warrant ahead of time either. See id. at 7–8. Due to the evidence needed for such anticipatory warrants, officers could not obtain the warrant until after the drug deal was completed. See id. Warrant delays could cripple the effectiveness of an undercover operation, and, given the time-sensitive and volatile nature of the situation, could further endanger the lives of the informants. See id. at 8–9.
If the consent once removed doctrine is deemed to be an exception to the Fourth Amendment, however, the American Civil Liberties Union (“ACLU”) fears it would (quite literally) open the door for law enforcement to rely on unqualified and potentially dangerous civilian informants, resulting in shoddy police work. See Brief of the American Civil Liberties Union (“ACLU”) in Support of Respondent at 7–19. The ACLU argues that informants are vastly different from officers in their training, judgment and overall trustworthiness. See id. at 17–18. These informants tend to be people already in trouble with the law, and their judgment can be clouded by self-interest. See id. at 18–19. Their dissemination of misinformation to police increases the chance of harm to the public, and could result in innocent people wrongly accused, harmed, or killed by these warrantless raids. See id. at 19–21.
Qualified Immunity Doctrine
Qualified immunity protects government officers from civil liability for violation of a constitutional right if that right was not clearly established at the time of the violations, and the officer could reasonably believe that his or her conduct was constitution. See Saucier v. Katz, 533 U.S. 194, 202 (2001).The decision of whether or not qualified immunity applies, and under what conditions, will have a profound effect on law enforcement officers’ conduct. See Petition for Writ of Certiorari at 14. Pearson argues that “for qualified immunity to provide any protection, the key question must be whether a reasonable officer should have known that his conduct was illegal based on the facts, not abstract categories of law.” Petitioner’s Reply Brief at 19. Amici States argue that if the Court denies police officers qualified immunity based on such a broad and generalized interpretation of rights, it could chill police officers’ desire to do their jobs effectively, because they will be confused about how to comply with constitutional standards and concerned about potential liability. See Brief for States of Illinois et al. in Support of Petitioner at 32–36. Local governments note that if the Court limits the reach of qualified immunity, there may be a landslide of legislation against local government employees, with taxpayers bearing the burden of their defense. See Brief of the National Association of Counties et al. in Support of Petitioners at 1–2.
Saucier v. Katz Revisited
Saucier v. Katz established that courts were to follow a rigid “order of battle” when determining qualified immunity: first, determine if there was a valid constitutional claim, and if there was one, then proceed to determine if the actor is entitled to qualified immunity. Saucier, 533 U.S. at 201. The Court’s decision on the continued applicability of Saucier will have little impact on either Pearson or Callahan, but significant procedural impact on lower courts considering qualified immunity. Sam Kamin, Concurring Opinions: More on Pearson v. Callahan (April 4, 2008).Saucier has met with harsh criticism for requiring lower courts to slog through complicated constitutional questions even if the case will clearly be dismissed on other grounds. See Linda Greenhouse, Justices To Weight Search and Consent, N.Y. Times (March 25, 2008).Amici states argue that if Saucier continues to be good law, its rule will force courts to make needless constitutional rulings and wasting time, money, and resources. Brief of Illinois et al. at 9–19. They further argue that this could result in a confusing web of fact-specific rulings that leave courts more confused than enlightened as to the state of constitutional law. See id. at 10–13.
The ACLU argues that Saucier is necessary to instruct the law enforcement world on how to conduct itself in accordance with the Constitution. See Brief of the ACLU at 21–23. Should Saucier be reversed, the courts could once again rule on issues of qualified immunity without properly resolving the underlying constitutional questions. See id. This would allow abuse of qualified immunity, because officers would get multiple opportunities to claim a constitutional right was not clearly defined instead of having the questions resolved on a case-by-case basis. See id. at 24.
The Fourth Amendment protects a person’s home from warrantless searches by law enforcement officials. See U.S. CONST. amend. IV. There are two exceptions to this rule—officers may conduct a warrantless search in exigent circumstances or with the consent of the person. See Brief for Petitioners at 22. Exigent circumstances include “the . . . pursuit of a fleeing felon, the imminent destruction of evidence, the need to prevent a suspect’s escape, or the risk of danger to police officers or other people . . . .” Callahan v. Millard, 494 F.3d 891, 896 (10th Cir. 2007).
Did the Officers Violate Callahan’s Fourth Amendment Right?
The officers assert that Callahan waived his Fourth Amendment right to privacy when he invited Bartholomew into his home. See Brief for Petitioners at 21. They argue that Callahan assumed the risk that Bartholomew would reveal illegal activity to officers. See id. They also contend that he waived his privacy interest by conducting an illegal business transaction in his home, such that he “converted [the home] into a commercial center . . . [that is] entitled to no greater sanctity than . . . a store, a garage, a car, or on the street.” Id. at 23 (quoting Lewis v. United States, 385 U.S. 206, 211 (1966)).
Even if Callahan did not waive his rights, the officers assert that Callahan’s expectation of privacy had been frustrated. See Brief for Petitioner at 26–27. They argue that when a private actor, not regulated by the Fourth Amendment, searches a residence, “the exposure by the private person frustrates the defendant’s... expectation of privacy against government observation.” Id. at 26. They conclude that police officers can legally search those areas so exposed without a warrant. See id. at 26–27. The officers also rely on the consent once removed doctrine, which “applies when an undercover officer enters a house at the express invitation of someone with authority to consent, established probable cause to arrest or search, and then immediately summons other officers for assistance.” Callahan, 494 F.3d at 896. They argue that this doctrine also applies to confidential informants. See Brief for Petitioners at 35. They note that under Utah state law and the law of many other jurisdictions, confidential informants can make an arrest through the citizens’ arrest powers. See id. at 37. Moreover, since an undercover officer and a confidential informant are both government agents, distinguishing between them based on legal status creates difficult line-drawing issues. See id. at 38.
Callahan contends that a person does not waive his expectation of privacy in the home by engaging in a business transaction. See Brief for Respondent at 21. It would be untenable to hold that a person purchasing Girl Scout cookies or similar products converts a home into a commercial center, and he argues that the expectation of privacy is no less for those suspected of illegal activity. See id. Since Callahan had not lost his privacy right, officers cannot make an arrest or search the home without a warrant, the existence of exigent circumstance, or consent. See id. at 21–22. Callahan argues that the Supreme Court has never and should not permit private searches to justify warrantless searches by the police, for such an interpretation would effectively overrule the its prior rulings on Fourth Amendment searches. See id. at 24.
Callahan also argues that the consent once removed doctrine should not be extended to confidential informants. The fact that certain states allow citizen’s arrests should not have any bearing on constitutional law—because constitutional law governs all jurisdictions in the United States, it cannot depend upon the particulars of state law. See Brief for Respondent at 31. He argues that the doctrine “serves no legitimate law enforcement need[ ]” because officers can always obtain a warrant, especially for planned operations. Id. at 32–33. Furthermore, the doctrine is not needed because officers may rely on the exigent circumstances exception in certain situations. See id. at 33.
The officers also claim that exigent circumstances justify the warrantless search. See Brief for Petitioners at 28. They argue that this was a search “incident to arrest,” which allows officers to conduct a warrantless search “when probable cause has been established and the arrest is imminent.” Id. at 28. Here they noted that a government agent, Bartholomew, had probable cause to arrest Callahan because he was a party to the methamphetamine transaction. See id. at 29. The officers argue that it would be unreasonable and dangerous for Callahan to participate in the arrest directly; thus the entry of the police was reasonable and the search was necessary to ferret out any co-conspirators and to preserve the safety of the government agents. See id. at 30–31.
Callahan counters that the officers cannot rely on the exigent circumstances exception. See Brief for Respondent at 26. Courts do not readily extend this exception to planned arrests, as any exigencies associated with such an arrest are foreseeable and thus, a warrant could have been obtained. See id. The evidence destruction and the safety concerns were minimal, as the officers entered Callahan’s home unexpectedly. See id. Also, Callahan argues the officers waived this defense by failing to assert it in the Court of Appeals proceeding. See id. at 27 n.6.
Are the Officers Entitled to Qualified Immunity?
Saucier v. Katz established a two-pronged qualified immunity test. See Saucier, 533 U.S. at 200–01. First, courts must determine whether a defendant officer violated a plaintiff’s constitutional right. See id. at 201. If so, then courts must assess whether the constitutional right was “clearly established.” Id. Courts uphold a qualified immunity defense where there is no clearly established right. The defense is designed to protect officers from reasonable, but mistaken, beliefs. See id. at 205.
Both parties disagree on the second prong of test—whether there is a clearly established right. The officers contend that the Tenth Circuit erred in framing “the relevant right [a]s the right to be free in one’s home from unreasonable searches and arrests.” Brief for Petitioners at 48–49. They argue that at this level of generality, “qualified immunity becomes meaningless” because it does not allow an officer to know when his or her actions violates that right. Id. at 43. Rather, the officers frame the right more narrowly: does a defendant have a right to be free from warrantless searches by officers that are signaled into the home after a confidential informant establishes probable cause. See id. The officers reference federal Circuit Court decisions, state supreme court decisions, and legal scholars, all of which recognize the consent once removed doctrine. See id. at 44–46. Most notably, the officers cite United States v. Paul, a Seventh Circuit decision which extended the doctrine to confidential informants. See id. at 47. The officers assert that given this legal backdrop, it was reasonable for them to believe that the warrantless search was valid, and consequently, they should be granted qualified immunity. See id. at 54.
Callahan contends that this argument mischaracterizes the law. He argues that the Paul decision is not widely accepted outside the Seventh Circuit; in other jurisdictions, an informant’s entry and establishment of probable cause is not sufficient to justify a warrantless search. See Brief for Respondents at 38–41. More importantly, for a successful qualified immunity defense, the officers must prove that the relevant right is not clearly established in the Supreme Court or the Tenth Circuit. See id. at 37, 43. Since these two courts only recognize the exigent circumstances and consent exceptions, the officers violated a clearly established right. See id. at 43–44.
Should the Supreme Court Overrule Saucier v. Katz?
Although the validity of the Saucier test was not raised in the lower courts, the Supreme Court asked the parties to address this matter. In Saucier, the Supreme Court explained that the first prong is essential to “elaborat[ing] the [constitutional] right with greater degrees of specificity.” See Saucier, 533 U.S. at 207.
The officers ask the Court to abandon or modify the test. They first propose that the test to be abandoned for Fourth Amendment civil litigation. See Brief for Petitioners at 56–58. Since Fourth Amendment matters frequently arise in criminal proceedings, there is little value in elaborating the law in civil proceedings. See id. In the alternative, the officers argue that the test should not be applied in cases involving motions to suppress evidence obtained from illegal activities. See id. at 58. Since such motions are frequently litigated, skipping to the second prong would conserve judicial resources. See id. at 58–59. In other cases, the two-pronged test would still serve to advance and elaborate constitutional law. See id. at 59–60.
In contrast, Callahan believes that the test should be preserved in its current form. See Brief for Respondent at 49. He notes that without Saucier, many lower courts could avoid determining whether the defendants violated a constitutional right by simply finding that the right was not clearly established. See id. at 50–51. He argues that foregoing the first prong would have an adverse effect on advancing constitutional law, because rights would not become well enough established to deter future violations of constitutional rights. See id. at 52–53.
Pearson v. Callahan will have important implications in advancing Fourth Amendment constitutional law. The Supreme Court will determine whether the consent once removed doctrine should be extended to confidential informants. Since the use of confidential informants continues to be an effective way to apprehend narcotics dealers, a ruling in Callahan’s favor will limit police department’s uses of confidential informants. However, extending this doctrine poses concerns to a suspect’s right against unreasonable searches and seizures in the sanctity of his or her home. This decision may also alter the framework for assessing qualified immunity. The Saucier v. Katz framework may not be unworkable in practice, but concerns about judicial economy may move the Court to alter the existing framework.
Edited by: Lauren Buechner
· Sam Kamin, Concurring Opinions: Qualified Immunity and Saucier v. Katz, www.concurringopinions.com (March 31, 2008)
· Linda Greenhouse, Justices To Weight Search and Consent, N.Y. Times (March 25, 2008).