Tuesday, March 25, 2008

Drug task force case at SCOTUS would deputize informants to override Fourth Amendment warrant requirement

The threshold for police securing search warrants, or searching without them, has been chipped away in recent years to absurdist points, where Fourth Amendment law now has a "through the looking glass" feel that frequently seems to ignore the plain language in the Bill of Rights.

The Supreme Court has agreed to take a case, Pearson v. Callahan, generated by a Byrne-grant funded drug task force in Utah that I fear will further emasculate the Fourth Amendment in the name of expediency and the drug war. Reports Linda Greenhouse in the NY Times. (Justices to weigh search and consent, March 25):
Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.
So-called consent searches are already pretty coercive and rarely refused. To claim that police can deceive you into giving consent seems headed pretty far down a slippery slope. While they're asking for a precedent in a case where an informant's account was confirmed with a wire, it's easy to see how the concept of "consent once removed" could become a lot more loosey goosey than that. How hard is it to leave someone surveilling the location and go get a warrant? It's an inconvenience, at most. In a pre-planned, undercover buy-bust, police could and frequently do easily work with a judge and ADA ahead of time to process a search warrant pretty quickly.

The Fourth Amendment, as a reminder, declares that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." At least the drug task force guys have the "no warrants shall issue" part down!

An odd twist, though, makes me wonder whether we'll actually get an answer to that question in this case. In accepting the case, though, SCOTUS added an issue of its own, instructing counsel to make arguments on an issue neither had raised in their previous briefs. Linda Greenhouse admirably adumbrated the implications.

The Supreme Court last considered this issue in a 2001 decision, Saucier v. Katz, which required courts to consider the issue in a precise order, first deciding what the constitutional rule should be and whether the Constitution was violated, and only then deciding whether the issue had been sufficiently unclear at the time so as to make the defendant entitled to immunity.

The rule of Saucier v. Katz has been severely criticized, both inside the court and outside, for making judges do the hard work of deciding disputed constitutional issues that need not have been decided if, at the end of the day, the lawsuit was going to be dismissed on the ground of official immunity.

The court’s purpose in deciding the Saucier case the way it did was to avoid a situation in which the law is never clarified because its very lack of clarity entitles defendant after defendant to official immunity. Only by deciding whether a constitutional right was violated in the first place would “the process for the law’s elaboration from case to case” be preserved, Justice Anthony M. Kennedy wrote in the Saucier majority opinion.

But in the view of the decision’s many critics, it has not turned out that way.

Judge Pierre N. Leval of the United States Court of Appeals for the Second Circuit, in Manhattan, said in a lecture at New York University in 2005 that the Saucier decision was “a puzzling misadventure,” imposing on judges “a new and mischievous rule.” It was “a blueprint for the creation of bad constitutional law,” he said, because often the constitutional holding would not actually matter to the parties in a case that could be resolved more simply through a decision on immunity.

In an opinion last year, Justice Stephen G. Breyer called for the Saucier decision to be overruled as a “failed experiment.” His opinion came in the “Bong Hits for Jesus” case, in which the court struggled to decide whether a high school principal had violated a student’s First Amendment right to free speech by suspending him for displaying a 14-foot banner bearing those words.

The court ruled by a bare majority that the answer was no. Justice Breyer said the entire exercise could have been avoided if the court, acknowledging that the question was close, had simply granted the principal immunity from suit.

Although Justice Breyer spoke only for himself in that case, Morse v. Frederick, he evidently captured his colleagues’ attention. In its order on Monday granting the appeal in the Utah case, the justices instructed the lawyers for both sides to brief and argue a question that neither side had raised: “Whether the court’s decision in Saucier v. Katz should be overruled?”

So if Saucier v. Katz becomes part of the equation, there's a chance SCOTUS simply doesn't decide the consent once removed question, since the issue would become moot if it reversed itself and said courts should consider the qualified immunity question first. In this case, even if SCOTUS decides the search was unconstitutional, there's pretty clearly evidence of disputes in constitutional interpretation among appellate courts (three circuits have approved it, the rest have not). Under current court decisions regarding qualified immunity, that argues strongly in the officers favor for them not being sued personally, whatever the constitutional merits of their actions. So if SCOTUS says that issue should be decided first, it conceivably could reverse Saucier v. Katz and just decline to address the underlying question.

The whole idea of consent once removed really seems to me like a slippery slope, not only diminishing further the constitutional warrant requirement, but more firmly ensconcing into law the idea of confidential informants (who are usually themselves criminals) as direct agents of law enforcement with authority on their say so to overturn the warrant requirement.

Under Texas law in drug cases, for example, informants' testimony must be corroborated to gain a conviction, but an undercover officer's testimony does not. In refusing to require corroboration for police officers, an explicit distinction was made - the Lege justifiably considered officers' testimony more reliable than drug snitches. While those of us who followed the Tulia case and paid attention to undercover drug officer Tom Coleman's perjury trial thought officers should be corroborated, too, it was a reasonable distinction to make. Consent once removed makes the opposite assumption: That an informant is as reliable as an officer.

I'd like to think that SCOTUS took this case to put a decisive end to the erosion of Fourth Amendment by dribs and drabs, but I suspect it's more a case of the court attempting to clean up its own pass mess from Saucier v. Katz. And that may be a good thing. President Bush's additions to the court, in particular, seem so far to be the type of judges that conflate the concepts of conservative and "pro-prosecution." I suspect I wouldn't like how this particular batch of justices will trend on Fourth Amendment cases, anyway, so maybe it's better to put as many of those decisions as possible off as long as possible.

MORE at the Volokh Conspiracy from Orin Kerr who is an attorney in the case.


Anonymous said...

This is odd, because in the past the police have been specifically prevented from having an agent do their dirty work for them. It was OK if the person did it on their own and reported it to the police, but not as a state actor. I guess they're trying to draw the bright line on this one. In this case, it's more of a strikeout of the 4th.

I didn't think the 4th could get any weaker.

Gritsforbreakfast said...

By mid-century, rage, at this rate, the 4th will be as moot as the 9th. (You can always hang your hat on the 3rd, though!)

I hope you're right and they "draw the bright line," but in recent years the line seems to curve around whatever new search authority police are looking for, particularly in drug war cases. I'll be (pleasantly) surprised if the Roberts court fails to approve "consent once removed." The only thing that makes me hopeful they won't is that they might decide immunity should be considered first.

Anonymous said...

I'd like to see the Supreme Court rule that in fact, government agents need a warrant to put a CI in someone's home at all. That's the way it should be.

It's wrong that the government of a free country puts spies in people's home to see what they are consuming.

I don't like the idea of undercover at all except for investigating murder and kidnapping.

Anonymous said...

So you mean the PLAIN language that says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..." That is, the plain language that requires REASONABLENESS.

Gritsforbreakfast said...

So, 1:41, some criminal comes into your residence under false pretenses as an agent of the police, and you think that's evidence of "reasonableness"? Really?

There's a great deal of reason to think informants are unreliable. In fact, their false testimony ranks among the top causes of wrongful convictions. What precisely is so reasonable about lowering the bar for warrantless searches from accepting a police officer's word to accepting some crook's who's working to get out from under his own case?

Anonymous said...

Really? No. I simply think that you are playing fast & loose with your reference to the "plain language" of the 4th Amendment.

Anonymous said...

That is, you only quoted this part of the Amendment: "The Fourth Amendment, as a reminder, declares that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." At least the drug task force guys have the "no warrants shall issue" part down!"

Gritsforbreakfast said...

So YOU don't think it's reasonable, but my failure to acknowledge that it could be, but isn't reasonable, is a distortion? Huh? Okay.

Gritsforbreakfast said...

Ah, I see what you're reacting to; your second comment came in while I was writing. Saying they had the "no warrants" part down in the last line was a tongue in cheek joke, intended as gentle ribbing for the opposition, not as constitutional interpretation. best,

Anonymous said...

I suspect HPD's narcotics teams are doing this. Jeez. What's next?

Anonymous said...

to 09:51...WTF?

Anonymous said...

Okaaaaaay...so, we're supposed to trust the statist-inclined Supreme Court, that generally rules against individual rights in favor of The State and its' friends, the corporations that service it so incestuously...to protect rights that hamper that State from further incursions into eroding individual rights and liberties?

Yeah, right...(scanning the skies for winged swine performing aerobatics)

See Raich for a perfect example of how putative 'conservatives', who should have been slavering at the bit to cut down the Fed bureaucracy by judicial fiat, instead ran and hid behind the robes belonging to, of all things, the much-hated-by-conservatives, FDR-sired New Deal Wickard case.

They had the chance to put their money where their mouth was, and wouldn't. Some 'conservatives', huh?

A brighter person than I am stated it very simply once: all the work in the world will not turn a lump of mud into an apple pie. The DrugWar is one such lump of mud, and no amount of trying to fine tune it will ever remove the fact it is a task impossible to complete. And no amount of trying to legitimize that 'fine tuning' with laws that are ever more corrosive of individual rights and liberties will ever succeed at anything, save make the situation worse.