Supreme Court to Consider 'Consent-Once Removed' and a Possible 'Failed Experiment'
The warrantless search case accepted yesterday by the U.S. Supreme Court involves difficult questions of constitutional law and immunity for government officials.
One constitutional question in Pearson v. Callahan involves what is known as the consent-once-removed exception to the Fourth Amendment.
The theory holds that a suspect who allows an undercover informant to enter his home in effect has agreed to let police enter, the New York Times reports. Lower courts are divided on the issue.
Another constitutional question concerns whether five Utah police officers are immune from liability for acting on the theory by entering a home without a warrant after an informant bought drugs inside.
In an unusual move, the justices asked lawyers arguing the case to address whether the justices should overrule a 2001 decision that established a two-step test to determine whether government officials are immune from lawsuits. The decision, Saucier v. Katz, required courts to determine whether the officials had violated a constitutional right, and if so to determine whether the right had been clearly established at the time of the violation.
Saucier has been criticized because it makes 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 Times story says. The decision requires litigants who may not care about the constitutional holding to nonetheless make new constitutional law.
Last year in the “Bong Hits for Jesus” case, Justice Stephen G. Breyer called Saucier a “failed experiment” that should be overruled. The Times story surmises that Breyer has captured his colleagues’ attention, even though he wrote only for himself in the Bong Hits case.
