“Consent Once Removed”- Does it Apply to Confidential Informer Buys?

The first of the search and seizure cases is Pearson v. Callahan,i which is scheduled for argument on Tuesday October 14th.  The case involves a lawsuit brought by Callahan regarding a narcotics raid at his home following his sale of drugs to a confidential informant.

The United States Court of Appeals for the 10th Circuit set forth the facts as follows:

This appeal evolves from a police raid of Mr. Callahan’s home on March 19, 2002. Earlier in the day, a confidential informant–who assisted the Central Utah Narcotics Task Force after being charged with possession of methamphetamine–saw Mr. Callahan and discussed a potential sale of methamphetamine later that day. The confidential informant then informed an officer of the task force of the conversation.

According to the findings of the district court, the confidential informant began that evening by drinking “between six to eight beers in three hours.” He then went to Mr. Callahan’s home, where he “ingested or tasted a sample of the methamphetamine.” After establishing that he could purchase methamphetamine that evening, the confidential informant left Mr. Callahan’s home to report the plan of purchasing a gram of methamphetamine for $ 100 to the task force.

During their conversations with the informant, the officers learned that he was intoxicated. Concerned about his competency, the officers supplied the confidential informant with coffee and monitored him. They were unaware that he also had ingested methamphetamine.

Despite the confidential informant’s condition, the officers continued with the planned drug transaction. They wired the confidential informant, gave him a marked $ 100 bill, and worked out a signal for him to give the officers once the exchange was completed. The officers then drove the confidential informant to Mr. Callahan’s home.

Inside the home, the confidential informant asked Mr. Callahan for methamphetamine. Mr. Callahan retrieved a quantity of drugs. In exchange for a portion of the quantity, the confidential informant gave Mr. Callahan the marked bill. After the deal was completed, the confidential informant gave a variation of the pre-arranged signal to the task force officers.

Hearing the signal, the officers entered Mr. Callahan’s home through a porch door. Once inside, they ordered the confidential informant, Mr. Callahan, and two other individuals to the floor. During their entry, the officers saw Mr. Callahan drop a plastic bag, which they later confirmed contained methamphetamine. After the four persons were on the floor, the officers conducted a protective sweep of the home. The Utah Court of Appeals later determined that Mr. Callahan consented to the protective sweep.

As a result of the search of Mr. Callahan and his home, the officers found evidence of a drug sale and possession. On the confidential informant, they found a small bag of methamphetamine. On Mr. Callahan, they found the marked bill. In Mr. Callahan’s home, they found drug syringes. The officers did not have an arrest or search warrant at any time during these events.

Based on this evidence, Mr. Callahan was charged with possession and distribution of methamphetamine. The trial court found that the evidence was admissible because the existence of exigent circumstances made the search reasonable despite the absence of a warrant. The Utah Court of Appeals reversed this decision and Mr. Callahan’s subsequent conviction. Notably, the Utah Attorney General’s office conceded on appeal that no exigent circumstances existed, instead arguing that the evidence would have been discovered inevitably. The court of appeals disagreed and applied the Attorney General’s concession that there were no exigent circumstances.

Applying the ruling of the Utah Court of Appeals, Mr. Callahan filed claims in the United States Court for the District of Utah. Mr. Callahan alleged that the actions of the task force violated his constitutional rights under the Fourth and Fourteenth Amendments. Additionally, Mr. Callahan brought claims against municipalities for failure to supervise the task force and several state law claims.ii

In analyzing the case, the United States Court of Appeals for the 10th Circuit analyzed whether the officers would have been justified in entering the home under a theory that had been recognized by other circuit courts identified as “consent once removed.”  “The ‘consent-once-removed’ 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.”  The 10th Circuit noted that the United States Court of Appeals for both the 6th and 7th Circuits had broadened this concept of consent once removed to include not just officers, but also informants who called in officers after establishing probable cause arrest.

In its decision the United States Court of Appeals for the 10th Circuit distinguished undercover police officers who make a buy in house and then summon other officers in, from confidential informants who make a buy and then summon officers.  The court reasoned that when an undercover officer is invited in to make a purchase, the seller has unknowingly invited the police into his or her residence.  This invitation is consent and is not limited to a single officer.  The court concluded that the same is not true when a person invites the non-police officer confidential informer into their home.  This is not an invitation to the police and does not transform to consent.

The court held that the officers’ actions in entering the home were unconstitutional. The officers then sought to have the suit dismissed on qualified immunity.  Qualified immunity is granted to officers in cases where even though their actions violated the Constitution, the officers did not know it at the time they did it because the law had not been clearly established at the time.  In this case, the 10th Circuit had not previously decided this specific issue and, as noted some of the other circuits would allow the informer’s invitation to qualify as consent once removed.  The court held that although they had not decided the specific issue prior to this case, reasonable officers know they cannot enter a home without a warrant, exigency, or consent and thus, the law was clearly established.  The United States Court of Appeals for the 10th Circuit overturned the trial court’s grant of qualified immunity for the officers thus allowing Callahan’s civil rights lawsuit to go forward.

This holding set of the appeal to the United States Supreme Court.

The question which will be answered by the United States Supreme Court is whether the Consent Once Removed exception authorizes law enforcement to enter a home immediately after an undercover informant buys drugs inside the home [as the 6th and 7th Circuit Courts of Appeals have held] or does such an entry violate the 4th Amendment as the 10th Circuit held in this case.

Additionally, if the actions of the officers violated the 4th Amendment, did the 10th Circuit properly decide whether or not the officers were entitled to qualified immunity?

Finally, the United States Supreme Court has asked the parties for briefs and arguments on whether their prior decision in Saucier v. Katz, which deals with how qualified immunity is analyzed, should be overturned.

Key Question:  Can an officer make an immediate entry into the residence of a drug seller following the purchase of drugs in the home by a confidential informant as “consent once removed” and thereby forego the need to obtain a warrant?

Search Incident to Arrest in a Vehicle- 
Can it be conducted after Arrestee is secured in the Police Car?

In Arizona v. Gant,iii the United States Supreme Court will consider an appeal by the prosecution from the State of Arizona regarding whether or not law enforcement can search a vehicle incident to the arrest of a subject after the subject has been secured in handcuffs and secured in the back of a police vehicle.  The argument is set for October 7th.

The Arizona Supreme Court outlined the facts regarding the search of Gant’s vehicle as follows:

On August 25, 1999, two uniformed Tucson police officers went to a house after receiving a tip of narcotics activity there. When Defendant Rodney Gant answered the door, the officers asked to speak with the owner of the residence. Gant informed the officers that the owner was not home, but would return later that afternoon. After leaving the residence, the officers ran a records check and discovered that Gant had a suspended driver’s license and an outstanding warrant for driving with a suspended license.

The officers returned to the house later that evening. While they were there, Gant drove up and parked his car in the driveway. As he got out of his car, an officer summoned him. Gant walked eight to twelve feet toward the officer, who immediately arrested and handcuffed him. Within minutes, Gant had been locked in the back of a patrol car, where he remained under the supervision of an officer. At least four officers were at the residence by this time and the scene was secure. Two other arrestees had already been handcuffed and locked in the back of separate patrol cars and there were no other people around.

After Gant had been locked in the patrol car, two officers searched the passenger compartment of his car and found a weapon and a plastic baggie containing cocaine. Gant was charged with one count of possession of a narcotic drug for sale and one count of possession of drug paraphernalia for the baggie that held the drug.iv

The Supreme Court of Arizona asserted the issue in the case:

This case requires us to determine whether the search incident to arrest exception to the Fourth Amendment’s warrant requirement permits the warrantless search of an arrestee’s car when the scene is secure and the arrestee is handcuffed, seated in the back of a patrol car, and under the supervision of a police officer. We hold that in such circumstances, a warrantless search is not justified.

In agreeing to an appeal in the case, the United States Supreme Court limited the question in the case to the following:

“Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle’s recent occupants have been arrested an secure?”

Key Question:  Can officer conduct a search of a vehicle incident to arrest after an arrestee has been secured in handcuffs and placed in a locked police vehicle?

Passenger Pat-Down
Can an officer pat-down a passenger in a vehicle stop where there is no reasonable suspicion to believe the passenger is committing a crime?

In Arizona v. Johnson,v the United States Supreme Court will re-visit law enforcement’s authority over passengers who are in the vehicle when an officer stops the vehicle for a minor traffic violation.

The Supreme Court of Arizona outlined the actions of the police officers as follows:

Oro Valley Police Officer Maria Trevizo, on assignment with the state gang task force, was on patrol in Tucson with two other officers at approximately 9 p.m. on April 19, 2002. The officers were in an area in which “[d]irectly to the west . . . [is] a neighborhood known as Sugar Hill . . . that is a gang-related area.” Trevizo testified Sugar Hill is associated with the Crips gang, and members of that gang wear blue apparel. Trevizo also noted that “gang members will often, in general, possess firearms.”

An officer in Trevizo’s vehicle “r[a]n the license plate of a vehicle” and found it had a “mandatory insurance suspension.” 1 Trevizo and the other officers in the vehicle “were not investigating gang activity as part of the traffic stop” and were not “targeting [the vehicle] for [their] gang task force function.” They also “[did not] know where [the car had] been . . . [and did not] know where it [was] going.” The officers had seen no behavior in the vehicle “indicative of  criminal activity.”

Trevizo stated a mandatory insurance suspension occurs when “the Motor Vehicle[] Department has suspended the registration . . . for an insurance-related purpose . . . . Sometimes people will get a ticket for [not having] insurance and not pay it, or sometimes they’ve been cited multiple times for not having insurance. There’s different reasons.” According to Trevizo, it “is a ticketable offense” and “[a] civil citation” but does not “bring concern with regard to criminal activity.”

Johnson was sitting in the rear of the vehicle, with the driver and another passenger in the front seats. Trevizo stated she had no “reason to believe that [Johnson] was engaged in criminal activity or about to engage in criminal activity when [she] made the traffic stop.” Johnson “looked back [at the officers], said something to the people in the front, and then continued to look back at [the officers] while [they] initiated the stop.” Trevizo testified this was unusual conduct for an occupant of a vehicle being stopped, and it made her nervous. One officer spoke to the driver and “at some point . . . asked everybody to put their hands where he [could] see them.” He asked whether any of the men in the car had weapons and all the occupants said no. The officer also had the driver exit the vehicle to get “his basic information: driver’s license, registration, insurance.”

Trevizo examined Johnson for seven indicia of gang affiliation.  Johnson was dressed entirely in blue, and had a blue bandanna. Trevizo testified that bandannas are often used “to show . . . allegiance or . . . affiliation with a certain gang” and that the only indicator she saw was Johnson’s blue clothing. The driver of the car, however, was wearing red clothing.

Trevizo testified the “seven basic . . . criteria to determin[e] if somebody is a gang member” are: 1) the colors the person is wearing, 2) tattoos, 3) gang signs, 4) self-proclamation of membership, 5) particular jewelry that might be associated with gangs, 6) photographs, and 7) “correspondence between gang members.”

Trevizo said she was “concern[ed]” because Johnson had “a scanner in his jacket pocket,” which people normally do not have “unless they’re going to be involved in some kind of criminal activity or going to try to evade police by listening to the scanner.” It was the first time Trevizo had seen anyone “carry [a scanner] on their person.” According to her, “[t]here’s nothing illegal about [having a scanner],” but “it’s out of the ordinary.” Trevizo did not know whether the scanner was turned on or off.

Trevizo began to talk with Johnson, who was still in the vehicle. He was cooperative and told her his name and date of birth but said he did not have any identification on him. He said he was from Eloy, and Trevizo testified there is a “predominant gang [there] called the Trekkle Park Crips.” Trevizo asked Johnson if he had spent any time in prison, and Johnson responded that “he had done time for burglary and had been out for about a year.”

Trevizo testified she “wanted to gather intelligence about the gang [Johnson] might be in” because “gather[ing] intelligence” was one of her “main missions in the task force.” She hoped to learn about how big his possible gang was, where it was located, who its leaders were, and “what kind of crimes they’re involved in.” She sought to isolate him from the other occupants of the vehicle in the hope he would contribute more information. Her “intentions were only to gather gang intelligence and talk to him.” The other passenger remained in the vehicle throughout the encounter, talking to the third police officer. According to Trevizo, Johnson “could have refused [to get out of the car], certainly.”

Once Johnson left the vehicle in a normal manner, Trevizo “asked him to turn around,” and she “patted him down for officer safety because [she] had a lot of information that would lead [her] to believe he might have a weapon on him.” Trevizo did not tell Johnson she planned to pat him down before he got out of the vehicle but “made the decision” when he exited the vehicle. It was “the totality of what happened that evening that led [her] to pat him down.” She had “not observe[d] anything that appeared to be criminal” at the time of the pat-down search. She stated he could have refused to turn around and put up his hands for the pat-down search. Trevizo felt the butt of a gun near Johnson’s waist when she patted him down. Johnson then began to struggle, and she put handcuffs on him.

Johnson was charged with possession of a weapon by a prohibited possessor, possession of marijuana, and resisting arrest. The trial court denied his motion to suppress the evidence found in Trevizo’s pat-down  search. A jury found Johnson guilty of the first two charges but not guilty of resisting arrest. This appeal followed.vi

The Arizona Supreme Court concluded that although Johnson was originally seized during the traffic stop, the encounter had turned consensual when the officer asked Johnson to get out of the car.  The court cited the fact that the officer testified that Johnson could have refused to step out of the vehicle.  The court concluded that an officer cannot conduct a “Terry Frisk” during a consensual encounter unless the officer has reasonable suspicion to believe that a crime has been committed.  Since the officer here was merely trying to gather intelligence related to gang activity and had no reasonable suspicion of criminal activity afoot at the moment, the officer should not have conducted the frisk.  This issue prompted the appeal to the United States Supreme Court.

The question presented in this appeal to the United States Supreme Court is:

In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense?

*Note: In many states, the fact that the person is suspected of being armed and dangerous would be reasonable suspicion of criminal activity afoot.

Key Question:  Does a pat-down require reasonable suspicion to believe criminal activity is afoot by the person in question in addition to an articulable basis to believe that the person is armed and dangerous?


Search Incident to Arrest
Where police arrest a subject based on credible evidence that a warrant exists and seize evidence incident to arrest; is the evidence admissible when it turns out that the information on the warrant was wrong?

On October 7th, the United States Supreme Court will hear oral argument on an appeal from the United States Court of Appeals from the 11th Circuit involving search incident to arrest.  The case involves a common situation in law enforcement.  An officer, believing Herring might have warrants checked and learned that Herring had warrants from the next county.  The officer almost immediately stopped and arrested Herring.  A search incident to arrest led to the seizure of a gun and narcotics from Herring.  It was learned shortly after that the clerk from the county who initially indicated that there was a warrant for Herring was mistaken.  The question is, where the arrest is best on the negligence of another law enforcement agency, should the evidence seized incident to arrest be suppressed as the fruit of the poisonous tree.

The United States Court of Appeals for the 11th Circuit outlined the facts in the case as follows:

On a July afternoon in 2004, Bennie Dean Herring drove his pickup truck to the Coffee County, Alabama Sheriff’s Department to check on another of his trucks, which was impounded in the Department’s lot. As Herring was preparing to leave the Sheriff’s Department, Coffee County Investigator Mark Anderson arrived at work. Anderson knew Herring and had reason to suspect that there might be an outstanding warrant for his arrest. Anderson asked Sandy Pope, the warrant clerk for the Coffee County Sheriff’s Department, to check the county database. She did and told Anderson that she saw no active warrants for Herring in Coffee County.

Investigator Anderson asked Pope to call the Sheriff’s Department in neighboring Dale County to see if there were any outstanding warrants for Herring there. Pope telephoned Sharon Morgan, the Dale County warrant clerk, who checked her database and told Pope that there was an active warrant in that county charging Herring with failure to appear on a felony charge. Pope relayed that information to Anderson.

Acting quickly on the information, Investigator Anderson and a Coffee County deputy sheriff followed Herring as he drove away from the Sheriff’s Department. They pulled Herring over and arrested him pursuant to the Dale County warrant, and they searched both his person and the truck incident to the arrest. The search turned up some methamphetamine in Herring’s pocket and a pistol under the front seat of his truck. All of that happened in Coffee County.

Meanwhile back in Dale County, Warrant Clerk Morgan was trying in vain to locate a copy of the actual warrant for Herring’s arrest. After she could not find one, she checked with the Dale County Clerk’s Office, which informed her that the warrant had been recalled. Morgan immediately called Pope, her counterpart in Coffee County, to relay this information, and Pope transmitted it to the two Coffee County arresting officers. Only ten to fifteen minutes had elapsed between the time that Morgan in Dale County had told Pope that an active warrant existed and the time that Morgan called her back to correct that statement. In that short interval, however, the Coffee County officers had acted on the initial information by arresting Herring and carrying out the searches incident to that arrest.vii

The United States Court of Appeals for the 11th Circuit refused to suppress the evidence holding essentially that the officers had acted in good faith and that the application of the exclusionary rule would not serve any purpose in this case.  This ruling prompted the appeal to the United States Supreme Court.

The question presented to the United States Supreme Court:

Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.

Key Question:  Will evidence seized incident to an arrest be suppressed in a case where the arrest is based on information that is incorrect but which was believed as credible by the arresting officer at the time of the arrest?


i Pearson v. Callahan, Docket No. 07-751.

ii Callahan v. Pearson et al., 494 F.3d 891 (10th Cir. 2007).

iii Arizona v. Gant, Docket No. 07-542 (2008).

iv Arizona v. Gant, 216 Ariz. 1 (Supreme Ct. of Arizona 2007).

v Arizona v. Johnson, Docket No. 07-1121 (2008).

vi Arizona v. Johnson, 217 Ariz. 58 (Supreme Ct. Arizona 2007).

vii United States v. Herring,  492 F.3d 1212 (11th Cir. 2007).

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