I am pleased to announce the filing of a new cert petition, Pearson v. Callahan, a matter I have worked on over the last few months. The Tenth Circuit decision below is Callahan v. Millard County. The Tenth Circuit’s opinion is also attached to the petition along with the district court decision by then-Judge (now Professor) Paul Cassell.
The cert petition concerns the “consent once removed” exception to the Fourth Amendment warrant requirement that has developed in the lower courts. According to the lower courts, this doctrine authorizes police to make a warrantless entry into a home when an undercover agent who has gained entry into the home by consent establishes probable cause to make an arrest inside and then invites the other officers to enter. (The doctrine is called “consent once removed” because a resident of the home consents to the first entry and then the invitee consents to the second entry.)
Circuit courts have divided on this exception in the important case when the undercover is a confidential informant. The Sixth and Seventh Circuits have held that the doctrine applies and the warrantless entry is constitutional. The Tenth Circuit below disagreed with those circuits, concluding it does not apply and that the warrantless entry violates the Fourth Amendment. The Supreme Court has never addressed the “consent once removed” exception, and the petition seeks Supreme Court review to settle the issue in light of the lower court split.
As this case involves pending litigation, I’ll keep comments closed. Of course, those interested in the case are free to e-mail me at my law.gwu.edu account.
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