Pearson v. Callahan

The U.S. Supreme Court has agreed to decide whether police officers may enter a home without a search warrant immediately after an undercover informant buys drugs inside.

In March 2002, an informant contacted members of the Central Utah Narcotics Task Force to let them know he had arranged to purchase methamphetamine from Fillmore, Utah, resident Afton Callahan.

Wearing a microphone provided by the police, the informant entered Callahan’s home, made the deal and then sent a pre-arranged signal to the officers who entered the trailer and arrested Callahan on possession charges.

During Callahan’s trial for the possession and distribution of methamphetamine, the state district judge rejected the defense argument that the evidence should be suppressed because of the warrantless search. Callahan agreed to a conditional guilty plea while appealing on constitutional grounds. The Utah Court of Appeals ruled in his favor, overturning his conviction and declaring the search unconstitutional.

Callahan then filed a civil suit against Millard County and the five officers from the task force, accusing them of violating his Fourth Amendment right against unreasonable search and seizure.

U.S. District Judge Paul G. Cassell granted the police officers’ motion for summary judgment, ruling that they were entitled to immunity
because of the Fourth Amendment’s so-called “consent-once-removed” exception, adopted by three federal appeals courts – although not the one that governs Utah.

In July 2007, a divided three-judge panel on the 10th U.S. Circuit Court of Appeals in Denver rejected the lower court’s decision and declined to adopt the consent-once-removed exception.

“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 court ruled. “We find the distinctions between an officer and an informant summoning additional officers to be significant.”

In asking the U.S. Supreme Court to hear their appeal, the officers warn of a “chilling effect” resulting from the split among the circuits.

“Undercover drug buys are necessarily planned out ahead of time; officers choose when and how they occur,” the brief states. “Such techniques are unusually sensitive to adverse legal rulings. A court decision from one circuit expressly rejecting a particular technique is unusually likely to be noted by those in other circuits who are in charge of planning investigations.”

In accepting the case for review, the court made the unusual decision to ask both parties to address whether it should overrule its recent decision in Saucier v. Katz. In the 2001 case, the high court established a two-step procedure for analyzing immunity claims by police and other public officials.

Questions presented:

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?

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?”

A unanimous Supreme Court held that police officers may not be sued for entering a home without a search warrant immediately after an undercover informant buys drugs inside.

In March 2002, an informant contacted members of the Central Utah Narcotics Task Force to let them know he had arranged to purchase methamphetamine from Fillmore, Utah, resident Afton Callahan.

Wearing a microphone provided by the police, the informant entered Callahan’s home, made the deal and then sent a pre-arranged signal to the officers who entered the trailer and arrested Callahan on possession charges.

During Callahan’s trial for the possession and distribution of methamphetamine, the state district judge rejected the defense argument that the evidence should be suppressed because of the warrantless search. Callahan agreed to a conditional guilty plea while appealing on constitutional grounds. The Utah Court of Appeals ruled in his favor, overturning his conviction and declaring the search unconstitutional.

Callahan then filed a civil suit against Millard County and the five officers from the task force, accusing them of violating his Fourth Amendment right against unreasonable search and seizure.

U.S. District Judge Paul G. Cassell granted the police officers’ motion for summary judgment, ruling that they were entitled to immunity because of the Fourth Amendment’s so-called “consent-once-removed” exception, adopted by three federal appeals courts – although not the one that governs Utah.

In July 2007, a divided three-judge panel on the 10th U.S. Circuit Court of Appeals in Denver rejected the lower court’s decision and declined to adopt the consent-once-removed exception.

“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 court ruled. “We find the distinctions between an officer and an informant summoning additional officers to be significant.”

In asking the U.S. Supreme Court to hear their appeal, the officers warn of a “chilling effect” resulting from the split among the circuits.

“Undercover drug buys are necessarily planned out ahead of time; officers choose when and how they occur,” the brief states. “Such techniques are unusually sensitive to adverse legal rulings. A court decision from one circuit expressly rejecting a particular technique is unusually likely to be noted by those in other circuits who are in charge of planning investigations.”

In accepting the case for review, the court made the unusual decision to ask both parties to address whether it should overrule its recent decision in Saucier v. Katz. In the 2001 case, the high court established a two-step procedure for analyzing immunity claims by police and other public officials.

On Jan. 21, a unanimous Supreme Court reversed. And in addressing the question of Saucier v. Katz, the court abandoned the two-step procedure.

“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand,” Justice Samuel Alito wrote in his opinion for the court.

Questions presented:

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?

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?”