JUSTICES TO WEIGH SEARCH AND CONSENT

WASHINGTON -- When an unsuspecting drug dealer opens the door to a
police informant masquerading as a customer, is he also opening the
door for the police to come in and conduct a search of his home
without a warrant?

The Supreme Court agreed Monday to answer that question, which has
divided the lower federal courts.

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.

The new Supreme Court case is an appeal filed by five Utah police
officers, members of the Central Utah Narcotics Task Force, who face
paying damages to a man in whose home they conducted a search later
found to be unconstitutional. The federal appeals court in Denver
rejected their claim of immunity. The case presents complex questions
of constitutional law, official immunity and the relationship between the two.

Events in 2002 form the background to the case. A confidential
informant working with the officers bought $100 worth of
methamphetamine from Afton D. Callahan, inside Mr. Callahan's trailer
home in Fillmore, Utah. By prearrangement, the officers entered the
trailer as soon as they received a signal from the informant, who was
wearing a wire, that the sale had been completed.

At Mr. Callahan's trial in state court for possession and
distribution of methamphetamine, the judge rejected the defense
argument that the evidence should be suppressed because the search
without a warrant was unconstitutional. Mr. Callahan then agreed to a
conditional guilty plea while appealing the constitutional issue. A
Utah appeals court agreed with him, declared the search
unconstitutional, and overturned the conviction.

Free of criminal liability, Mr. Callahan then sued the officers for
violating his rights under the Fourth Amendment. In response, the
officers argued that they were immune from suit under the doctrine of
"qualified immunity," which provides that government officials cannot
be held liable for violating a law or constitutional principle that
was not clear at the time.

A federal district judge, Paul G. Cassell, who later left the bench,
ruled in 2006 that even assuming the search was unconstitutional, the
police were entitled to immunity because they could reasonably have
believed at the time that the law was on their side. He noted that
three federal appellate circuits, although not the one that includes
Utah, had accepted the "consent-once-removed" notion.

The United States Court of Appeals for the 10th Circuit, in Denver,
disagreed and reinstated Mr. Callahan's lawsuit. The appeals court,
declining to adopt the consent-once-removed exception, held that the
search violated Mr. Callahan's "clearly established" right "to be
free in one's home from unreasonable searches and arrests." The
Constitution was so clear on this point, the appeals court said, that
a reasonable police officer would have known not to proceed without a warrant.

In accepting the officers' appeal for argument next November, the
justices added an issue of their own that substantially increases the
prospective importance of the case, Pearson v. Callahan, No. 07-751.
The question is how courts are to evaluate officials' claims of
immunity from suit for constitutional violations.

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?"

In other action on Monday, the court rejected an appeal concerning an
Arizona county jail's policy on abortions for pregnant prisoners. The
unwritten policy requiring an inmate to obtain a court order before
jail officials would transport her for an abortion was found by an
Arizona appeals court to place an undue burden on the right to
abortion. The justices, without comment, turned down the Maricopa
County sheriff's appeal, Arpaio v. Doe, No. 07-839.