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Consent-once-removed, and other fictions

Yesterday we talked about the Supreme Court's decision in Arizona v. Evans, involving a police officer's right to frisk passengers in a stopped vehicle.  The week before, the Supreme Court handed down Pearson v. Callahan which, despite it being a civil case, also has important ramifications for 4th Amendment law.

Pearson been fingered as a drug dealer by an informant, so the police set up a controlled buy, giving the informant $100 and sending him into Pearson's house.  When the deal went down, the informant signaled the officers, and they came in, arrested Pearson, and seized the evidence.

The state courts threw it out because the cops didn't have a warrant, so Pearson filed suit for violation of his civil rights.  This is where things get funky.  Under civil rights law, police officers enjoy a qualified immunity from suit:  you can't recover if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."  A number of courts have established a "consent once removed" doctrine:  if you allow an informant into your house, and he calls for  the police to come in, you've consented to that as well. 

If you've never heard of this, don't feel bad; neither had I, and the only Ohio case that's mentioned it is this 2005 12th District opinion.  The theory is an extension of Lewis v. US,  where an undercover officer had entered the defendant's home and purchased drugs, and later obtained a warrant to search the house.  Lewis didn't contest the warrant, but he argued that the officer's entery into his home to make the purchases was itself a violation of the 4th Amendment.

The Court's rejection of that argument is perfectly understandable, but some courts have expanded it that the undercover agents, once they're inside the house, can also summon other officers to enter the home, even without a warrant.  The 6th Circuit even extended this to buys conducted by an informant, rather than an undercover officer, in US v. Yoon.

While that position seems extreme at first blush, there's a logic to it:  since there's no 4th Amendment violation by the undercover agents entering the home, there's no violation in the agents legally arresting the offenders, and if the agents could arrest the offenders, the additional intrustion of having them invite their pals inside is incidental in the broad scheme of things.  I've got a much bigger problem with the "consent once removed" by informants, because the same logic doesn't apply:  the informant can't effectuate an arrest.  While the consent doctrine under 4th Amendment law certainly doesn't have the vitality of, say, informed consent in medical malpractice, there's enough reference to the necessity of "voluntariness" to bring into question whether someone who invites people who aren't police officers into his home impliedly invites people who are. 

Keep in mind that, as the court indicated in Yoon, this consent isn't equivalent to a search warrant, but only a right to arrest:  the police can search the defendant incident to that arrest, seize items in plain view, and conduct a protective sweep if the circumstances warrant, but they can't go rummaging through closets and drawers.

So let's go back to Pearson.  The issue, as mentioned, was whether the officers had immunity from suit, which in turn depended on whether the unconstitutionality of their actions had been "clearly established" by prior decisions.  Actually, the key issue in Pearson was when the trial court could consider that question.  Back in 2001, in Saucier v. Katz, the Court had established a rigid two-step analysis for qualified immunity questions:  first, the court had to determine whether a violation had actually occurred; only then could it move to the issue of whether the officers should have known their actions violated the law.

The net result of Pearson was to overrule Saucier's requirement of the mandatory nature of the two-step process.  The Court noted correctly that this could result in wasting time:  there's a lot of muddled 4th Amendment issues out there, and instead of trying to decide them, sometimes it's easier to conclude that, if they're that muddled, it necessarily follows that the unconstitutionality of what the officers did wasn't "clearly established."  The Court let the officers off the hook, concluding that although the court in their Circuit had not ruled on the "consent-once-removed" doctrine, enough other courts had to give the officers a reasonable belief that their actions were legal.  Note that the net effect of Pearson was to allow the police officers to escape liability without the Court having to address whether the consent-once-removed doctrine is permissible.

Pearson's also notable for its discussion of stare decisis, as one of my savvy commentators pointed out last week; while Pearson didn't overrule Saucier, it substantially modified it.  Alito's opinion for a unanimous court began by paying homage to the value of following precedent, but then lays down some guidelines for when prior cases can or should be overruled.  "Considerations in favor of stare decisis are at their acme in cases involving property and contract rights," because of the reliance of parties upon those cases; cases involving "procedural and evidentiary rules" are at the opposite end of the spectrum.  Normally, changes should be left to the legislature, but where case involves a judge-made rule, that doesn't apply.  Most notable was the rejection of the argument that a case should be overruled only where "its justification was badly reasoned" or where it has proved unworkable; that might be appropriate where a constitutional precedent is challenged, but not otherwise.

As I've mentioned before, the Ohio Supreme Court hasn't overruled a prior decision since it established the three-part test for analyzing that question in Westfield v. GalatisI've argued that Galatis is itself bad law, and that it poses an almost insurmountable obstacle to overruling cases that should be overruled.  There are a number of the latter out there, and don't be surprised if the gang in Columbus takes a closer look at Pearson when that comes up.

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