In other ACLU news of late, the ACLU has recently written an amicus brief in the case of Pearson v. Callahan to be heard this term. Set for argument on October 14, 2008, the case involves one Afton Callahan who was arrested inside his home after a cooperating informant purchased drugs from Callahan. As soon as the drugs were purchased, the police entered Callahan's home without a warrant claiming that they were entering the home based upon the confidential informant's signal.
Callahan plead guilty in state court in Utah, and appealed the denial of a suppression motion to the Utah Court of Appeals. The Utah Court of Appeals agreed with Callahan that the search violated the Fourth Amendment and reversed the lower court with instructions to dismiss criminal charges against Callahan. The case now to be decided this term comes from Callahan's civil suit in federal district court, seeking damages for the violation of the Fourth Amendment's warrant requirement. The federal district court granted summary judgment against Callahan; the Tenth Circuit reversed holding that the officers' warrantless entry violated the Fourth Amendment. The court of appeals rejected the extension of the “consent-once-removed” doctrine to citizen informants—the only exceptions to the warrant requirement do not permit police to enter a home without a warrant based on the informant's participation in a drug transaction inside the home. Authorities argued that Callahan had "consented" to the informant's presence in his home and therefore did not have privacy interests. The ACLU, in its amicus brief, argues in part that a new exception to the warrant requirement should not be based on informants who do not have the training of law enforcement and that an occupant does not surrender a privacy interest in their home by engaging in illegal activity in the home.
Watch for the police arguing this form of "consent" in your cases and remember to preserve the issue in any suppression hearings. Cases with informants should always be the subject of thorough investigation...remember what a panel from the Ninth Circuit had to say ..."Informant's are cut from untrustworthy cloth...". United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993).