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.