Supreme Court Extends Police Immunity for 4th Amendment Violation

By Jeralyn, Section Court Decisions
Posted on Wed Jan 21, 2009 at 03:00:00 PM EST
Tags: Justice Alito (all tags)

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Another decision causing one to rue the day Justice Sam Alito made it to the Supreme Court: Pearson et. al. v. Callahan (pdf).

Although the opinion was unanimous, it is authored by Justice Alito, who in his fervor to protect police officers from liability when they violate someone's fourth amendment rights, throws precedent out the window, saying it's okay to ignore it. At least, that's my take.

Even worse, the case was from my own circuit which has held that "consent once removed" doesn't apply to snitches, only to undercover officers. Alito says because at the time of the search, two states and three other federal districts had ruled differently, the cops were entitled to rely on those rulings since their own circuit hadn't yet ruled at the time. And, he writes, the legal test established by the Supreme Court for determining whether immunity applies isn't mandatory for courts to follow. [More..]

The consent once removed doctrine allows a warrantless police entry into a home when consent to enter was previously granted to an undercover officer who observed contraband in plain view. If sued for a civil rights violation, the cops say they have immunity because the doctrine authorized their actions.

That's how the district court in Utah ruled in this case. But the 10th circuit reversed because the plaintiffs were trying to extend the doctrine from undercover officers to undercover informants. It was the snitch in this case who made the initial buy inside the home which then resulted in a warrantless search of the home after the seller's arrest. The seller-plaintiff sued the cops seeking damages for violating his civil rights through the unconstitutional search. He alleged the cops improperly supervised the warrantless search.

The [Tenth Circuit] concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them.

So now what? The consent once removed doctrine still is illegal in the Tenth Circuit, but it lost its back teeth because officers can't be sued if they violate it. (It keeps its front teeth -- the evidence would be excluded in the criminal case.)

Alito on precedent:

Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U. S. 506, 521; the precedent consists of a r