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Are the police entitled to qualified immunity if they enter a home without a warrant on the theory that the owner consented because he previously allowed an undercover informant into the home?

The U.S. Supreme Court has agreed to answer this question, reviewing a decision from the 10th Circuit.

In that case, police raided the plaintiff's home when a confidential informant inside the residence signaled that he had completed a drug purchase.

After a state appeals court threw out his drug conviction, the plaintiff filed a §1983 suit against the officers, alleging that their warrantless entry violated his Fourth Amendment rights.

The officers argued that their entry was lawful under the "consent-once-removed" doctrine, which provides that the consent a resident gives to an undercover officer to enter a home extends to police who subsequently make a warrantless entry to assist the undercover officer in making an arrest.

But the 10th Circuit refused to extend the doctrine to confidential informants, explaining that in that context, "the person with authority to consent never consented to the entry of police into the house. …

"Other courts have overcome this distinction by noting that a state may grant the power to arrest to the police as well as its citizens, and if the informant has the power to arrest, then an informant must be capable of summoning the police. This logic is unconvincing. That a citizen has the power to arrest does not grant the citizen all of the powers and obligations of the police as agents of the state. These distinct obligations and powers must also be reflected in a distinction between inviting a citizen who may be an informant into one's house and inviting the police into one's house."

The court noted contrary authority from the 6th and 7th Circuits.

The Supreme Court also directed the parties to discuss whether its decision in Saucier v. Katz, 533 U.S. 194 (2001), which held that a police officer accused of using excessive force in arresting a demonstrator was entitled to qualified immunity, should be overruled.

A decision from the Court is expected next term.

U.S. Supreme Court. Pearson v. Callahan, No. 07-751. Certiorari granted March 24, 2008. Ruling below: 494 F.3d 891 (10th Cir. 2007).