On Tuesday, the United States Supreme Court heard oral argument in a case [Pearson v Callahan] where officers of the Central Utah Narcotics Task Force were sued for entering the home of a drug suspect, Callahan, immediately after a confidential informant made a drug buy from Callahan and gave officers a signal that the buy had been made.  Callahan’s criminal case had been dismissed after the criminal court determined that the officers did not have exigent circumstances to justify the entry without a warrant and the court concluded that the drugs would not have been inevitably discovered.  Following the dismissal of the case, Callahan filed a lawsuit in federal court alleging an illegal entry under the 4th Amendment.  The United States Supreme Court heard argument on three issues with respect to the officer’s entry in this case:

  • Does a person who gives consent to a confidential informant to enter their home, thereby give consent (once removed) to the police officers who are signaled by the confidential informant?
  • If it is unconstitutional for the officers to make an entry based on the consent once removed doctrine, was the law clearly established at the time such that an officer would know that entering the home was unconstitutional?
  • Does a court have to decide if there is a constitutional violation before deciding whether the law was clearly established or may they decide the law is not clearly established and dismiss the officers from the lawsuit on qualified immunity without ever deciding whether their actions were unconstitutional?

A review of the oral argument leads to a number of different operational considerations for law enforcement, some of which may not be clear until the Court issues its decision.

Throughout the argument, counsel for law enforcement asserted that in cases where an undercover police officer enters the home to make a buy, clearly other officers can enter to assist in the arrest.  This assertion seemed to be accepted by members of the Court who seemed somewhat incredulous when Callahan’s lawyer argued that even when a law enforcement officer makes the undercover buy the entry by other officers to assist in making the arrest is improper unless there are articulable exigent circumstances or a warrant.  The following assertion by Justice Alito is instructive: “You are advocating a rule that is going to get police officers killed, aren’t they — aren’t you? If an undercover police officer is in a house making drug buy, and you want to say that the single officer who is there in an undercover capacity can say, “You guys are all under arrest,” he can’t signal for other police officers to come in and help him effect the arrest without anybody being killed?”

Notwithstanding what seemed to be a clear indication by the members who were vocal in the argument that an officer who makes an undercover buy can call other officers in without violating the 4th Amendment, Callahan’s attorney would not concede this point.

Throughout the argument, Chief Justice Roberts seemed to direct the attorneys toward the qualified immunity issue.  His questioning indicated that he is in favor of overturning the Court’s prior decision in Saucier v. Katz, which requires the lower courts to answer the constitutional question before answering whether or not the law was clearly established.  If his questions represent his opinion then he appears in favor of abandoning Saucier and allowing courts to simply say, the law was not clearly established, the officer gets qualified immunity.  It was pointed out that the United States Court of Appeals for the 6th and 7th Circuits have concluded that officers can go in on the signal of the confidential informant and only the United States Court of Appeals for the 10th Circuit (in this case) concluded that officers cannot go in and that the law on entry is clearly established.  Thus, with the courts in disagreement, how could it be said that the law is clearly established such that an officer should know what to do.

The law enforcement argument throughout the case was that the confidential informant is an agent of law enforcement and thus should be treated the same as an officer who makes an undercover buy.  This argument assumes that the undercover law enforcement officer can signal other officers in, which appeared to be accepted by the members of the Court who were vocal during the argument.

The plaintiff’s argument was that, if law enforcement is going to make a buy they should get a warrant beforehand or an anticipatory search warrant which is triggered by the buy.  If there is no warrant, once the buy is made, the officers should leave and get a warrant unless they can articulate exigent circumstances.  The plaintiff also argued that if the police want to enter under exigent circumstance, they must not have created the exigent circumstance.

Between now and June the United States Supreme Court will decide these issues impacting law enforcement operations.  Stay tuned to PATC for the latest updates on those cases impacting law enforcement operations.

Jack Ryan, J.D., Public Agency Training CouncilLegal & Liability Risk Management Institute 10/16/08

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