1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O F THE UNI TED STATES
Sy llabu s PEAR SON ET AL

. v . CALLAHAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 07–7 51. Ar g u ed Oc tober14, 2008— Dec i ded Jan uar y21, 2009 Afterthe Uta hCour t of Appeals v a c a te d r e spondent’s c o nv ic tion for

pos s e ss ion a n d dis t rib u tion of drugs , whic h he s o ld to a nunde rcove r informa n t he ha d volunta r i l y a d mitted into his hous e , heb r ough t th is 42 U. S. C. §1983 da m a g e s ac tioninfeder a l c o ur t, allegi n gth at petitioners, the officers who su pervised and conducted the war

r a n t less se ar c hof th e pr em ises th a tled t oh i s ar r e st af terth e sale , had violated the Fourth Amendmen t. The Distr i c t Cour t g r anted summar yjudg ment in fav o r of the offic e r s . Notingtha t otherc o ur ts had adopted the “consent-o nce-remo ved” doct rine—whi ch pe rm it s a warrantless p o lice entry into a home when c o nsent to e n terhas al

rea d y b een gr a nt ed t oa nunderco ver offi cer w h o ha s o b s e rved con

tr aban d inpla i nv i ew—th ecou r t c o nc lu ded th at th e offi c e r s wer een titledto qu al ified im mu n i t ybec a u s e th eyc o u l d r e ason ablyh av e believ e d th at th e doc t r i n eau th or iz ed their cond uct. F o llowing the procedure mandated in Sau c ierv. Katz , 533 U. S. 1 94, t h e Ten t hCir

c u it held thatpetit i oner s wer enot entitl ed to qualifie d immunity

. The court disapproved br oadening the cons ent-once-remo v ed doctrine to situa t ions i nwhich the p e r s on grantedinitial consent was not an underco veroff i cer, b u tm e re ly a ninfo rm a n t

. Itf u rt he r held t h a tt h e Four th Amendment r i gh t to be fr ee in one ’ s home from unreasonable s e a rches a n d a rres t s was clea rly es tabli s hed at the ti me of r e spon dent ’s a rres t , a n d det e rm in ed t h a t , under t h is Court ’ s clea rly es tab

lished precedents, warrantless entr ies into a home ar e p er seun rea sonable unless they sati sfy one of the two est abli s hed e x c e ptions for cons enta n d exigentcirc um s t a n ces . The courtcon c lud e d t h a tpet i

tioners could not rea s onab l y have b e lieved tha ttheir conduct wa s la wful b e ca us e they kne wtha t(1 ) they had no warrant; (2) respon

dent had not c o nsented to theirentr y ; and (3) his c o nsent to the entr y2 PEARSON v. CALLAHAN Sy llabu s of anin for m an t c o u l d n o t r e ason abl ybe inter p r e ted to ex tend to t h em . In gra n t i ng ce rt iora ri, t h is Courtdirect ed t h e pa rt ies t o a d

dr ess w h eth e r Sauciershould be overrul e d in light of widespread crit i cis mdirect ed a tit

. Held: 1. Th e Saucierprocedure should not be re garded as a ninflexible r e qu ir emen t. Pp. 5–19. (a) Saucierm a nda t ed, s e e 533 U

. S ., at19 4, at w o-st ep s e q u ence for res o lvin g g o vernm e ntoffi cia l s ’ q u a lified im m unit ycla i m s : A court must decide (1) whether the facts alleged or shown b ythe plaintiff make out a v i olation of a c o nstitutiona lr i gh t, and (2) if so, whether that r i gh t was “c lear lyestab lished” a tthe time of the defendant’ s al

leged misconduct, id ., at 20 1. Qu alified i mmu n i tyappl ies u n l ess th e officia l 's conductviol ateds u c ha r i gh t. Anderso nv. Creigh ton , 4 83 U. S. 635, 640. Pp. 5–7. (b) Stare de cis i sdoes not pr ev ent this Co ur t fr om dete r m ining whether the Saucier pr oc edu r e sh ou ld be mod i fied o raban don e d. Revisiting pre c edent is p a rti c ularlyappropriate where, as here, a de

pa rture would not ups e t s e ttled expectations , s ee, e.g., United State s v. Gau d in , 51 5 U. S. 506, 5 21; th e pr ec eden t c o n s ists of a r u le th at i s judge-made and adoptedto improv e cour t opera t ions , not astatute pr omu l g a ted b yCon g r e ss, se e, e.g. , State O il Co. v. Khan , 52 2 U. S. 3, 20 ; and the precedent has “been questio n ed by Members of th[is] Court in later decisions, and [has] defiedconsistent ap plication b y t h e lower cou r t s ,” Paynev. Tenne ss ee , 50 1 U. S. 8 08, 8 29– 83 0. Re

s p ondent’s a r gument tha t Sa uci e rs h ould not b erecons idered unles s the Cour t c o nc ludes that it was “badlyr e asoned” orth a tit s r u le has proved “unwo r kable,” see Payne, sup r a , at 82 7, is r ej e c t ed. Th ose standard s are out of place i nthe present context, where a consider

able bodyof n e w ex per i en c esu ppor t s a de ter m in ationt h at a man d a t o ry, t w o-s t ep rule for res o lving a ll qu alifie d immunity cl aims shoul d n o t be r e tain ed. Pp. 7–10. (c) Reconsideration of the Sa u c i e rpro c ed ure demonstrates that, while the sequence set forth therein is often appropriate, it should n o lon g erbe r e g a r d ed as man d ator yinall c a ses. Pp. 10–1 9. (i) The Cour t continues to r e c o g n ize that the Sauci e rp r o t ocol i s oftenben e fic i a l

. Insome c a s e s, a di sc u ssio nof w h yth e relev a n tfac t s do n o t v i ol ate c l ear l yest abl ish e d l a w m a ymake i t app a r e n tth atin fac tthe r e levant fac t s do not make out ac o nstitutionalv i olation a t all. And Sau c ierwa s corre ctin not i ng th at the two-step procedure promotes the development of consti tutio n al precedent and is espe

c i allyv a lu able forqu estion s th at donot frequently arise in cases in wh ic h a qu alified immu n i tydefen s e is u n av a ilab l e. See 533 U. S., at 194. Pp. 10–1 1.3 Cite as: 55 5 U

. S. ____ (2009) Sy llabu s (ii) Nevertheless, experiencein this Courtand the lower fed

er al c o ur ts ha s pointedout the r i gi d Saucierpro c edure ’ s shortcom

ings. For example, i tmay resultin asubs tanti a l e x penditure of s c a rce j u dicia lres o urces on difficultq u es tions t h a thave no effecton the case’s outc ome, and was t e t h e pa rties ’ res o urces b yforcing t h em to as sume the c o sts of li tig a ting constituti onal questions and endure delays at tributable to resolv ing th ose questions when the suit other

wise could be disposed of more readily. Moreove r , although the procedure ’ s first prong is i n tendedto fur t herthe development o f constitutional precedent, opinions following that procedure often fail to make a me aningf ul c o nt ribution to suc hdevelopment. Further, when qualified immunity i s as sert ed at the pleadingstage, the answer to whether there was a violation may depend on a kalei

doscope of facts not yet fully develo ped. And the first step may create a r i sk of bad dec i sion makin g , as wh ere the briefing of constitutional questions is w oefully inadeq uate. App licat ion of the Sau c ierru le also m a y m a ke it ha rd for a ffect ed pa rt ies to obtain appe ll ate review of c o nstitutionaldec i sions hav i nga se rious prospective effect on their operations. For example, where a c o u r tholds th at a de fen d an t h a s c o mmitteda c o nstitutiona l v i olation, but then holds th at the v i ol a tion was not c l ear l yestabli s hed, th e defend a n t, a s the wi nningpa rty, mayhav ehis r i gh t to appeal the adv e r s e constitutiona lholdingchal

lenged. Because rigid adherence to Saucier departs from the general rule of co nstitutional avoidance, cf., e.g., Scottv. Harri s , 550 U. S. 372, 38 8, th e Cou r t mayappr opr i atelydec lin e to man d ate th e or der of decision that the lower courts must follow, see, e.g . , Strick land v. Washin gton , 466 U. S. 6 68, 697. Th is f l ex ibili typr oper lyr e flec ts th e Court’s respect for the lower federal courts. Because the two-step Saucierproce d ure is often, but no t alway s , adv a n t ag eou s, th ose judges are in the best positio nto determine the order of d e cisionmak

ing that will best facil i t a te the fairand efficient dispo s ition of each c a se. Pp. 11–1 7. (iii) Misgivings concerni ng today’s decisi on are unwarranted. It does not pre v ent the lower courts from following Saucier; it sim p ly recognizes that they should have the di sc r e tion to dec i de whether that procedure is worthwhile in pa rticular cases. Moreover, it will not r e tar dthe dev e lopment of c o nsti tution al l a w, result in a prolif

era t ion of dama ges claims a g a i ns t loca l gover n ments , or s p a w n new lit iga t ion over t h e st a n da rds for deciding whet her t orea c h t h e pa r tic u larc a se’ s mer i ts. Pp. 17–19.

2. Petitioner s ar e entitled to qualifiedim m unitybec a use it was not clearly establ i s hed at the ti me of the sea r c hthat their c o nduc t was unco n stitution a l. When t h e en try occurred, the consent-once

-4 PEARSON v. CALLAHAN Sy llabu s

rem o ved doct rine ha d b een a ccept ed by two State Supreme Courts and three Fed e ral Courts of Appeal s, and not one of the latterhad is

s u ed acont ra ry decis i on. Pet i t i oner s we r eentitled to r e lyon these cases, even though their own Fede ra l Cir c uit ha d not yet ruled on consent-once- r emoved entries. See Wilso nv. Layne , 526 U. S. 603 , 618. Pp. 19–2 0. 494 F. 3d 89 1, r e v e r s ed.

ALITO , J ., deliv ered the opini o n forauna ni mous Court._________________

_________________ 1 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O F THE UNI TED STATES

No. 07–7 51 COR D E LL PEAR SON, ET AL ., PETITIONERS v. AFT O N CALLA HA N ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE TENT H CIRCUIT [Jan u a r y21, 2009] J USTICE ALI T O delivere dthe opinio n of the Court. This is an action bro u ght b yre spondent under Rev. Stat. §1979 , 42 U. S. C. §1983, against state law enforce

ment officers who conducted a warrantless search of his house incid e nt to his a rrest for the sale of m e thampheta

mine to an undercover informantwhom he h a d voluntarily admitted to the p r emises. The Co urt of Appe als held that petitioners were not entitledto summary judgment on qualified immunity grounds. Following the procedure we mandated in Sauci e r v. Katz , 53 3 U. S. 194 (2001), th e Court of Ap peals held, first, that respondent adduced facts sufficient to mak e outa violationof the Fou rth Amend

ment and, second, that the unconstitutionality of the officers’ co nduct was clearly es tablished. In gran ting review, we required th e parties to address th e additional question w h ether the mandatory procedure set out in Saucier should be retained. We now hold that the Saucier pro c edure should not be regarded as an inflexib le requirem e nt and that petitioners are entitled to qualified immunity on the ground that it was not clearly established at the time of the search tha t2 PEARSON v. CALLAHAN Opinion of theCourt their conduct was unco n stitutional. We therefore reverse. I A The Centra l Utah Na r c otics Task Force is ch arged with investigating illegal drug use and sales. In 2002, Brian Bartholomew, who became an informant for the task force after having been char ged with the unlawful possession of methamphetamine, informed Offic e r Jeffrey Whatcott th at respondent Afton Callahan had arranged to sell Bar

tholomew methamphetamine late r that day. That evening, Bartho l omew arrived at respondent’s residence at about 8 p. m. On ce th ere, Bartho l omew went inside and confirmed that respondent had methampheta

mine avail able for sal e . Bartholomew then told respon

dent that h e needed to obtain money to make his purchas e and left. Bartholomew met with members of the taskforce at about 9 p.m. and told them that he would be able to buy a gram of m e thamphetamine for $100. After concluding that Bartholomew was capable of completing the planned purchase, t h e officers searched him, determined that h e had no con trolled sub s tances on his person, gave him a marked $10 0 bill and aconcealed electronic transmitter to monitor his conversati ons, and agreed on a signal that h e would give after completing the purchase. The officers drove Bartholo mew to respondent’s traile r home, and respondent’s daughter let him inside. Respon

dent then retrieved a large bag co ntaining methampheta

mine from his freezerand sold Bartholomew a gram of methamphetamine, which he put into a small plastic bag. Bartholomew ga ve the arrest sig nal to the officers who were monitoring the c o nversation, and they entered the trailer through a porc h door. In the enclosed porch, t h e officers enc o untered Bartholomew, responde nt, and two other persons, and they saw respondent drop a plastic ba g,3 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt which they later determined contained methampheta

mine. The officers then conduct e d a protective swee p of the pre m ises. In addition to the large bag of methamphetamine, the officers reco vered the marked bill from respondent and a small bag containing methamphetamine from Bartholomew, and the yfound drug syringes in the residence. As a result, respondent was charged wi th the unla w ful posses s ion and distribution of methamphetamine. B The trial court held that the wa rrantless arrest and search wer e supporte d byexige n t cir c umstances. On respondent’s appeal from his conviction, the Utah attorne y general conceded the absence of exigent c i rcumstanc es, but urged that the inevitable discovery doctrine justifie d introduction of the fruits of the warrantless search. The Utah Court of Appeals disagreed and vacated respondent’s conviction. See Sta t ev. Call ahan , 2004 LIT App. 164, 9 3 P. 3d 103. Respondent then brought this dam a ges action under 42 U. S. C. §1983 in the United States District Court for the Districtof Utah, a lleging that the officer s had violated the Fourth Amendm ent by ente ring his ho me without a warran t

. See Callah a nv. Mill ard Cty. , No. 2:04–CV–00952, 2006 WL 1409130 (2006). In grantingthe officers’ motion forsummary judgment, the DistrictCourt note d that othe r courts ha d adopted t h e “consent-once-removed” doctrine, which per m its a war

rantless entry by police officers into a home when consent to enter ha s already b een grantedto an unde rcover offic e r or informant who has observed contraband in plain view. Believing that this doctrine wa s in tension with our inter

vening deci sion in Ge orgiav. R a ndolph , 547 U. S. 1 03 (2006), the District Court concluded that “the simples t approach is to assume that the Supreme Court will ulti

mately reject the [cons e nt-once- removed] doctrine and find4 PEARSON v. CALLAHAN Opinion of theCourt that search es such as the one in this case are not reason

able under the Fourth Amendment.” 2006 WL 1409130, at *8. The Court then held that t h e officers were entitle d to qualified immunity becaus e they could reasonably have believed that the consent-on ce-removed doctrine author

ized their conduct. On appeal, a divided panel of the Tenth Ci rcuit hel d that petiti oners’ conduct violat ed respondent’s Fourt h Amendment righ ts. Callahanv. Millard Cty. , 494 F. 3d 891, 895–89 9 (2007). T h e panel m a jority stated that “[t]he ‘consent-once-removed’ doctri ne applies when an under

cover officer enters a house at t h e express invitation of someone with authority to consen t, establish e s probable cause to arrest or search, and thenimmediately summons other officers for assistance.” Id ., at 896. The majority tookno issue with application of the doctrine when the initial consent was granted to an undercover law enforce

ment officer, but the majority di sagreed wi th decisions that “broad e[n] this doctrine to gr ant informants the same capabilities as undercover officers.” Ibid

. The Tenth Circuit pan e l further held that the Fourth Amendment righ t tha tit recognized was clearly estab

lished at the time of respondent’s arrest. Id ., at 898–899. “In this case,” the majority stated , “the relevant right is the right to be free in one’s home from u n reasonable searches and arrests.” Id ., at 898. The Court determined that, under the clearly establis hed precedents of thi s Court and the Tenth Circuit, “ w arrantless entries into a home are per se unreasonable unless they satisfy the establishedexceptions.” Id ., at8 98–899. Inthe panel’ s words, “the Supreme Court and the Tenth Circuit ha ve clearly established that to allow p o lice entry into a home, the only two exceptions to the warran tre quirement are consent and exigent circumstance s .” Id ., at 899. Against that backdrop, the pan e l concluded, petitioners could not reasonably have believ e d that the i r conduct was lawful5 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt because petitioners “knew (1) th ey had no warran t ; (2 ) [respondent] had not consented to their entry; and (3) [respondent’s] consent to the entr y of an info rmant coul d not reasonably be interprete d to ex tend to them.” Ibid

. In dissent, Judge Kelly argued that “no constitutional violation oc curred in t h is case” because, by inviting Ba r tholomew into his hou s e and participating in a narcotics transactionthere, respondent had compromised the pr i

vacy of the residence and had ass u med the ri sk that Bar

tholomew would reveal their dealings to the police. Id ., a t 903. Judge Kelly furth e r concluded that, even if petition

ers’ conduct had been unlawful, they were nevertheless entitled to qualified immunity because the constitutional right atissue—“the ri ght to be fr ee from the warran t less entry of po lice officers into one’s home to effectuate an arrest after one has granted voluntary, consensual entry to a confidential informant and underta ken crimin a l activity giving rise to pr obable cause”—was not “clearly established” at the time of the events in ques t ion. Id ., a t 903–904. As noted, the Court of Appeals followed t h e Saucier procedure. The Sauci e r procedure has been criticized by Members of this Court and by lower courtjudges, who have been required to apply the procedure in a gre a t variety of cases and th us have mu ch firsthan d experience bearing on its advantages and disadvantages. Accord

ingly, in granting cer t iorari , we directed the parties to address the question whether Sau c ier should be overruled. 552 U. S. ___ (2008). II A The doctrine of qualified immunity protects governmen t officials “from liability for ci vil damages ins o far as their conduct do es not violate clearly establishedstatutory or constitutional rights of wh ich a reasonable person would6 PEARSON v. CALLAHAN Opinion of theCourt have known.” Har lo w v. Fi tzgerald , 457 U. S. 800, 81 8 (1982). Qualified imm unity balances two important inter

ests—the need to holdpublic officials accountable when they exercise power ir responsibly and the n eed to sh ield officials from harassment, distraction, and liability when they perform their duties reason ably. The protection of qualified i mmunity applies regardless of whether the governmentofficial’s error is “a mi stake of law, a mistake of fact, or a mistake ba sed on mixed question s of law an d fact.” Gr ohv. Ramirez , 540 U. S. 551 , 567 (2004) (K ENN E DY , J., dissenti n g) (citing Butz v. Economou , 43 8 U. S. 478, 507 (1978) (noting that qualified immunity covers “mere mistak es in judgment, whether the mistake is one of fact or one of l a w”)). Because qualified imm unity is “an immunit yfrom suit rather than a mere defense to liab ility .

. . it is effectivel y lost if a case is erroneously permitted to go to tria l .” Mitchell v. Forsyth , 47 2 U. S. 511 , 526 (1985) (emphasis deleted). Indeed, we have made clear tha tthe “ d rivi ng force” behind creationof the qualified immunity doct rin e was a desire to ensure that “ ‘insubstantial claims’ against government officials [will] be re s o lv ed prior to discovery.” Andersonv. Creigh ton , 483 U. S. 635, 640, n. 2 (1987). Accordin gly , “we repea t edly have stressed the importance of resolving immunity questions at the earliest possible stage in liti g ation.” Hunter v. Brya nt , 502 U. S. 224, 22 7 (1991) (per curiam)

. In Saucier, 533 U. S. 194, this Court mandated a two

step sequen c e for resolving go vern ment officia l s’ qualified immunity claims. First, a court must decide whether the facts that aplaintiff ha s alleged (s ee Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a viola

tion of a constitutional right. 533 U. S., at 20 1. Second, if the plaintiff has satisfied this first step, the court mus t decide whether the right at i ssue was “clearly established” at the time of defendant’s alleged misconduct. Ibid

.7 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt Qualified immunity is applicable unless t h e official’ s conduct violated a clea rly estab lished constit u tional right. Anderson , supra, at 64 0. Our decisions prior to Saucier had held that “the bette r approach to resolving cases in which the defense of quali

fied immunity is raise dis to dete rmine first whether th e plaintiff has alleged a deprivation of a constitutional righ t at all.” County of Sacramentov. Lewis , 523 U. S. 833, 841, n. 5 (1998). Sauci e r ma de that su ggestion a mandate. Fo r the first time, we held that whether “the facts alleged show the officer’s con d uct viol at ed a constitutional right

. . . mustb e the initia l inquiry” in every qu alified imm u nity case. 533 U. S., at 20 (emph a sis added). Only after completing this first step, we said, may a court turn to “the next, sequential step,” nam ely, “wheth er the righ t was clearly established.” Ibid

. This two-step procedure, the Saucier Cour t re asoned, is necessary to support t h e Consti tution’s “elaboration from case to case” and to prevent constitutional stagnation. Ibid

. “The law might b e deprived of this explanation were a court sim p ly to s k ip ahead to th e question whether th e law clearly established that the officer's conduct wa s unlawful in the circum s tances of the case.” Ib id

. B In consideri n g whether the Saucier procedure should be modified or abandoned, we must be gin with th e doctrine of sta re deci si s . Stare d ecisi s“pro motes the evenhanded, predictable, and consistent development of legal princi

ples, fosters reliance onjudicial decisions, andcontributes to the actu al and perc eived integrity of the j u dicial proc

ess.” Paynev. Tenn es see , 501 U. S. 808, 827 (1991). Al

though “[w]e approach the reco nsideration of [our] deci

sions .

. . with the utmost caution,” “[ s ] tare d ecisi sis not an inexorable command.” State Oil Co. v. Khan , 522 U. S. 3, 20 (1997) (internal quotation marks omitted). Re visit

-8 PEARSON v. CALLAHAN Opinion of theCourt ing precede n t is particularly appropriate whe r e, as here, a departure would not upset expectations, the precedent consists of a judge-ma de rule thatwas recent ly adopted t o improve the operationof thecou rts, and experience ha s pointed up the precedent’s shortco mings. “Considerat i ons in favor of st are de c i s i sare at their acme in cases involving propert yand cont ract righ ts, where reliance interests are involved; the opposite is true in cases .

. . involving procedural and evidentiary rules” that do not produce such reliance. Payne, supra, a t82 8 (citations omitted). Li ke rules go verning procedures and the admission of evidence in th e trial cou rts, Sau c ier’s two-step protocol does not affect the way in which parties order their affairs. Withdra w ing f r om Saucier’s catego ri

cal rule would not upset settled expectations on anyone’s part. See United Sta t esv. Gaudin , 515 U. S. 506, 521 (1995). Nor does this matter implicate “the general presumptio n that legislative changes should b e left to Congress.” Khan , supra, at 2 0

. We reco gnize that “considerations of sta re decisi sweigh heavily inthe area of statutory construction, where Con gress is fre e to change this Court’s interpreta

tion of its l e gislation.” Illinois Brick Co. v. Illinois , 431 U. S. 720, 7 36 (1977). But the Sa ucierrule is judge made and implicates an important ma tter involvi n g internal Judicial Branch operations. Any change should come from this Court, not Congress. Respondent argues th at the Sau c ier procedure should not be reconsidered unless we conclude that its justifica

tion was “b adly reasoned” or that the rule has proved to b e “unwork able,” see Payne , sup ra, at 827, but those stan

dards, whi c h are appropriate when a constitutional or statutory precedent is challeng ed, are out of place in the present context. Because of the basis and the nature of the Sauc ier two-step protocol, it i s sufficient that we now have a considerable b o dy of new experience to consider9 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt regarding t h e consequences of requiring adherence to this inflexible p r ocedure. This experience supports our present determination that a mandatory, two-step r u le for resolv

ing all qualified immun i ty claims should not b e retained. Lower cour t jud g es, who have had the tas k of applyi n g the Sauci e r rule on a regular basis for t h e past eight years, have not been reticent in th eir criticis m of Sauci e r’s “rigid order of battle.” See, e.g. , Purtell v. Mason , 527 F. 3d 615, 622 (CA7 2008) (“This ‘rigid order of battle’ has been criticized on practical, procedural, and substantive grounds”); Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275, 1277 (200 6) (referring to Saucier ’s mandatory two-step framework as “a new and mischievou s rule” that amounts to “a puzzling misadventure in constitutional dictum”). Andapplication of the rule has not always been en thusiastic. See Higaz y v. Tem p le ton , 505 F. 3d 161, 179, n

. 19 (CA2 2007) (“We do not reach the issue of whether [plaintiff’s] Sixth Ame n d

ment rights were violated, because principles of judicial restraint ca ution us to avoid reaching constitutional ques

tions when they are unnecessary to the di sposition of a case”); Che rring tonv. Skeeter , 3 44 F. 3d 6 31, 640 (CA6 2003) (“[I]t ultimately is unne cessary for us to decide whether th e individual Defend ants did or did not heed the Fourth Amendment command .

. . because th ey are enti

tled to qu alified im munity in any event”); Pearsonv. Ramos , 237 F. 3d 88 1, 884 (CA7 2001) (“Whether [the Saucier] rul e is absolute may be doubted”). Members of this Court have also voiced critici sm of the Saucier rule. See Morsev. Fr ed erick , 551 U. S. ___, ___ (2007) (slip op., at 8) (B REYER , J., concurring in judgme nt in part an d dissenting in part) ( “ I would end the failed Saucier experiment now”); Bun t i n g

v. M e llen , 541 U. S. 1019 (200 4) (S TEVE NS , J., joined by G INSBU R Gand B REYER , JJ ., respecting denial of c e rtiorari) (criticizing th e “unwise jud g e-made rule under which courts must decid e10 PEARSON v. CALLAHAN Opinion of theCourt whether th e plaintiff has allege d a constitutional violation before addressing the quest ion whether th e defendant state actor is entitled to qualified immunity”); Id ., at 1025 (S CALI A , J., joined by Rehnquist, C. J., dissenting fro m denial of certiorari) (“We should either mak e clear that constitutional determinations are notinsulated from ou r review .

. . or elsedrop any pretense at re quiring the ordering in every case” (emphasis i noriginal)); Brosseauv. Haugen , 54 3 U. S. 194, 201–202 (2 004) (B REY ER , J., joined by S CALI A and G INSB URG , JJ., concurring) (urging Co urt to reconsider Sauci e r ’s “rigid ‘order of battle,’ ” whic h “requires courts unnece ssarily to decide difficult constitu

tional questions when t h ere is available aneas i er basis for the decision ( e.g. , qualified immunity) tha twil lsatisfacto

rily resolve the case before the court”); Sauci e r , 533 U. S. , at 210 (G IN SBURG , J., concurring i njudgment) (“The two

part testto day’s decisi on imposes holds large potential to confuse”). Where a de cision has “b een questi o ned by Members of the Court in later decisions and [has] defied consistent application by the lower courts, ” these fac t ors weigh in favor of reconsideration. Payne , 5 01 U. S., at 829–830; see also Crawfordv. Was h ington , 541 U. S. 36, 60 (2004). Collectively, the factors we have noted mak e our presen t reevaluation of the Saucier two-step protocol appropriate

.

III On reconsidering the procedure required in Saucier , we conclude that, while the sequence set forth there is often appropriate , it should no longer b e regarded as manda

tory. The j u dges of th e district c o urts and t h e courts o f appeals should be permitted to exercise their sound discre

tion in deciding which of the two prongs of the qualifie d immunity analysis should be addressed first in light of th e circumstan ces in the particular ca se at hand.11 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt A Although we now hold that the Sauc ie rprotocol should not be rega rded as ma ndatory in all cases, we continue to recognize t hat it is oft e n beneficial. For one thing, ther e are cases in which there would be little if any conservation of judicial resources to be had b ybeginning and endi ng with a discussion of t h e “clearly established” prong. “[I]t often may be difficult to deci de whether a right is clearly established without deciding preci s ely what the constitu

tional right happens to be.” Lyons v. Xenia , 41 7 F. 3d 565, 581 (CA6 2 005) (Sutto n, J., concu rring). In s o me cases, a discussion of why the relevant facts do not violate clearly establishedlaw may make it apparent that in fact th e relevant facts do not make out a constitutional violationat all. In addition, the Saucier Court was certain ly correctin noting that the two-step pr ocedure promotes the develop

ment of constitutional precedent and is especially valuable with respect to questions t hat do not frequently arise in cases in which a qualifi e d immuni ty defense is unavailable. B At the sam e time, however, the ri gid Sau c ierprocedure comes with a price. The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case. There are cases in whic h it is plainthat a consti

tutional right is not clearly established but f a r from obvi

ous whether in fact there is such a right. District cour t s and courts of appeals with heavy caseloads are often understandably unenthusiastic about what may seem to be an ess e n t ially academic exercise. Unnecessary litigation of constitutional issues also wastes the parties’ resources. Qualified imm unity is “an immunity from suit ra ther than amere defense to liabil

ity.” Mi tch e ll, 472 U. S., at 526 (emphasis deleted). Sau

-12 PEARSON v. CALLAHAN Opinion of theCourt cier ’s two-step protocol “disse rve[s] the purpose of quali

fied immunity” when it“forces the parties to endure add i

tional burdens of suit—such as the costs of litigating constitutional questions and de lay s attributa b le to resolv

ing them—when the suit otherwise could bedisposed o f more readily.” Brief f o r Nat. Assn. of Criminal Defense Lawyers as Amicus Cu riae30. Although the first prong of the Sauci e rprocedure is intended t o further the development of constitutional precedent, opinions f o l l owing that procedure often fail t o make a me aningful contribution to such deve lopment. For one thing, there are cases in which the c o nstitutional question is so fact-bound that the decision provides little guidance for future ca ses. See Scottv. Har r is , 550 U. S. 372, 388 ( 2007) (B REYER , J., concurring) (counseling against the Sauci e r two-step protocol where the question is “so fact dependent that the result will be confusi o n rather thanclarity”); Buchanan v. Maine, 469 F. 3d 158, 168 (CA1 2006) (“We do not think the law elaboration purpose will be wel lserved here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts”). A decision on the underlying consti tutional question in a §1983 damages action or a Biven s v. Six Unknown Fed

. Narco tics A gents, 403 U. S. 388 (1971), 1 action may have scant value when it appears that the questionwill soon be decided by a higher co urt. When presented with a consti

tutional qu estion on which this Court had just grante d certiorari, the Ninth Circuit elected to “bypass Saucier’ s first step a n d decide o n ly whethe r [the alleg e d right] was

——————

1 See Harlow v. Fitzgerald , 457 U. S. 800, 818, an d n

. 30 (1982) (n ot

ingthat the Cour t’ s dec i si ons equate the qualifiedim munity of sta t e offic i als su ed u n d er42 U. S. C. §198 3 w i thth e im mu n i tyof feder a l officers s u ed di rect ly u n der th e Cons t i t u t i on).13 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt clearly established.” Motleyv. Parks , 43 2 F. 3d 1072, 1078, and n. 5 (2005) (en banc). Similar c o nsideration s may come into play when a court of appeals panel con

fronts a con s titutional questio n that is pending before the court en banc or when a district co urt encounters a consti

tutional question that is before th e court of appeals. A constituti onal decision resting o nan uncertain inter

pretation of state law is al so of doubtful precedential importance. As a result, several courts have identified an “exception” to the Sau c ier rule for cases in which resolu

tion of the constitutional question requires clarification of an ambiguous state statute. Egolf v. Witm er , 526 F. 3 d 104, 109–111 (CA3 20 08); accord, Tr emblayv. McClellan , 350 F. 3d 195, 200 ( CA1 2003); Ehrlichv. Glastonbu ry , 348 F. 3d 4 8 , 57–60 (C A2 2003). Justifying the decision to grant quali f ied immunity to the defendant without first resolving, u n der Sauci e r’s first pr ong, whether the defen

dant’s cond uct violated the Constitution, these courts hav e observed that Saucier’s “underlying principle” of encoura g ing federal courts to decide unclear legal questions in order to clarify the law for the future “is not meaningfully advanced .

. . when th e definition of constitutional right s depends on a federal court’s unce rtain assumptions about state law.” Egolf , supra, at 110; a ccord, Trem blay , supra, at 200; Ehrl ich , supra, at 58. When qualified immunity is ass e rted at th e pleading stage, the precise factual basis for the plaintiff’s claim o r claims may be hard to identify. See Lyons, supra, at 5 8 2 (Sutton, J., concurring); Kwai Fun Wong v. Un ited States , 373 F. 3d 9 52, 957 (CA9 2004); Mollicav. Volker , 229 F. 3d 366, 374 ( CA2 2000). Accordin gly, several courts have recognized that the two-step inquiry “is an u n comfortable exercise where .

. . theanswer [to] whether there was a violation m a y depend on a kaleidoscope of facts not ye t fully developed” and h a ve suggested that “[i]t may be that Saucier wa s not strictly intended to cover” th is situation.14 PEARSON v. CALLAHAN Opinion of theCourt Dirr anev. Brookline Police Dept. , 315 F. 3d 65, 69– 70 (CA1 2002); see also Robinettev. Jones , 476 F. 3d 585, 592 , n. 8 (CA8 2007) (declin ing to follow Sauci e r because “the parties have provided very few fa cts to define and limit any holding” on the constitutional question). There are circumstances in which the first step of the Saucier pro c edure may create a riskof bad decisionmak

ing. The lower courts sometimes encounter cases in which the briefing of constitu tional ques t ions is woefully inade

quate. See Lyons, 417F. 3d, at 5 82 (Sutton, J., concur

ring) (noting the “risk that const i tutional questions ma y be premat urely and incorrectly decided in cases wher e they are not well presented”); Mollica, sup ra, at 374. Although the Saucierrule prescribes the sequence in which the issues must be discussed by a court in its opin

ion, the rule does not—and obviously cannot—specify th e sequence inwhich judges reach their conclusions in their own internal thought processes. Thus, there will be cases in which a court will rather qui ckly and easily decide that there was no violatio n of clearl y establish e d law bef o re turning to t h e more difficult question whether the relevant facts make out a cons titutional question at all. In such situations, there is a risk t hat a court may not devote as much care as it wouldin other ci rcumstance s to the dec i

sion of the constitutional issue. See Ho rnev. Coughlin , 191 F. 3d, 2 44, 247 (CA2 1999) (“J u dges risk being insuffi

ciently thoughtful and cautious in uttering pronounce

ments that play no role in their adjudi cation”); Leval 1278–1279. Rigid adherence to the Sauci e r rule may make it hard for affectedparties to obtain appellate review of constitu

tional decisions that m a y have aserious prospective effect on their operations. W h ere a court holds that a defendan t committed a constitutional viol ation but that the violation was not clearly established, the defendant may face a difficult situation. As the winnin gparty, th e defendant’s15 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt right to ap peal the adverse holding on the c o nstitutional question m a y be contested. See Bunting, 541 U. S., at 1025 (S CAL IA , J., dissenting from denial of certiorari) (“The perce ption of unreviewability undermines adherence to the sequencing rule we . . . cr eated” in S aucier); 2 see also Kalkav. Ha wk , 2 15 F. 3d 90, 96, n. 9 (CADC 200 0) (noting that “[n]ormally, a party may not appeal from a favorable judgment” and that the Supreme Court “has apparently never gran t e d the certi orari petition of a par t y who prevailed in the appellate court”). In ca ses like Bun

ting , the “prevailing” defendant faces an unenviable choice: “compl[y] withthe lo wer court’s a dvi sory dictu m without opportunity t o seek appellate [or certiorari] re

view,” or “def[y] the views of the lower court, adher[e] to practices th at have bee ndeclared i llegal, and thus invit[e ] new suits” and potential “punitive damages.” Horne, supra, at 24 7–248. Adherence to Sauci e r’s two-step protocol departs fro m the general rule of c o nstitutional avoidance and runs counter to the “older, wiser judi cial counsel ‘not to pass on questions of constitutionality .

. . unless suchadjudication is unavoidable.’ ” Sc ott, 550 U. S., at 388 (B REYER , J.,

——————

2 In Bunti n g , the Cour t of Appeals fo llowed the Sauciertwo-step pro tocol and first held that the VirginiaMilit ary Institute’s use of the word “God” in a “ s upperr o ll call” c e r e monyv i olated the Establi s hme n t Clau se, bu t t h engr an ted th e defen d an ts qu alified im mu n i tybec a u s e the law was not c l ear l yes tabl ished at t h e r e lev a nt ti me. Mellenv. Bunting , 327 F. 3d 355, 36 5–3 76 (CA 42 003), c e r t . den i ed, 541 U. S. 101 9 (20 04). Alth ou ghth ey h a d a ju dg men tinth eirfav o rbelow, th e defendants a s ked this Co ur t to r e v i ew the adv e r s e c o nstitutiona l ruling. Dis s e nt ing fromt h edenia lof cert iora ri, J US TI CE S CALIA , joined b yChief J u s t ice Rehnq uis t , criticized “aperceived pro c e d ura lta ngle of the Cour t’ s own making .” 5 41 U. S., a t1 0 22. The “tang le” ar ose fr om the Cour t’ s “ ‘ s ettle dr e fu sal ’ to en ter t ainanappeal by a par t yonan issue as to w h ich he pre v ailed” be low, apractice that insulates from review a dvers e m e rit s decis i ons t h at ar e “loc ked in side” fav o r able qualified i m m unity rulings. Id ., at 102 3, 1024.16 PEARSON v. CALLAHAN Opinion of theCourt concurring) (quoting Spec tor Motor Ser v ice, Inc. v. McLaughlin , 323 U. S. 101, 105 (1 944)); see Ashwand e r v. TVA , 297 U. S. 288, 3 47 (1936) (Brandeis, J ., concurrin g) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is al s o present some other ground upon which the case may be disposed of ”)

. In other a nalogous c o ntexts, we have ap propriatel y declined to mandate the order of decision that the lower courts mus tfollow. F o r example, in Stri ckla ndv. Wash

ington , 466 U. S. 668 (1984), we recognized a t w o-part tes t for determining whether a cri min a l defendan t was denied the effective assistance of counsel: The defendant mus t demonstrate (1) that h i s counsel’s performan c e fell below what could be expected of a reasonably competent practi

tioner; and (2) that he was prejudi c ed by tha t substandard performance. Id ., at 687. After s e tting forthand applyi ng the analytical framework that courts must use in evaluat

ing claims of ineffective assistance of counsel, we left it to the sound d i scretion of lower court s to determi n e the order of decision. Id ., at 69 7 (“Although we have discussed the performanc e component of an ineffectiveness claim prior to the preju d ice component, there is no reason for a cour t deciding anineffective assistance claim to a p proach th e inquiry in the same order or evento address both compo

nents of the inquiry if t h e defenda n t makes an insufficient showing on one”). In UnitedSta t es v. Leon , 468 U. S. 897 (198 4), we cre

ated an exception to the exclusionary rule when officers reasonably rely on afa cially valid search warrant. Id ., a t 913. In t hat context, we recognized that a defenda n t challenging a search will lose if either: (1) the warrant issued was supported b yprobable cause; or (2) it was not, but the officers execu t ing it reasonably believed that i t was. Again , after setti ng forthan d applyin gthe analytical framework that courts must use in evaluating the goo d

-17 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt faith exception to the Fou rth Amendment warran tre quirement, we left it t o the sound discretion of the lower courts to determine the order of decision. Id ., at 924, 925 (“There is no need for courts to a d opt the in flexible prac

tice of always deciding whet her th e officers’ conduct mani

fested objec t ive good faith before turning to the questio n whether the Fourth Amendment has been vi olated”). This flexibility p r operlyreflects ourrespect for the lower federal courts that be ar the brunt of adjudicating the s e cases. Because the two-step Sa ucier proce d ure is often, but not always, adva ntageous, the judges of the district courts and the courts of appeals are in the best position t o determine the order of decisionma king will best facilitate the fair and efficient di sposition of each case. C Any misgiv ings concerning our decision to withdra w from the mandate set forth in Saucier are unwarran t ed. Our decision does not prevent the lower cour ts from fol

lowing the Sauci e r procedure; it simply recognizes that those courts should have the discretion to dec i de whether that pro c edure is wort hwhile in particular ca ses. More

over, the development of consti tutional law is by no mean s entirely dependent on cases inwhich the defendant may seek qualified immunity. Most of the constitutional issu es that are presented in §1983 damages actions and Bive n s cases also a r ise in cas e s in which t hat defense is n o t avail

able, such as criminal cases and §1983 cas e s against a municipality, as well as §1983 cases against individua l s where injunctive relief is sought instead of or in addition t o d a m a g e s . S e e Lewis , 523 U. S., at 841, n. 5 (noting that qualified immunity is unavailable “in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion”). We also do not think that relaxa tion of Sau c ier ’s man

date is likely to result in a proliferation of damages claims18 PEARSON v. CALLAHAN Opinion of theCourt against local governments. Compare Brief for Nat. Ass n . of Counties et al., a s Amici Curiae 29, 30 (“[T]o the extent that a rule permitting courts to b y pass the merits makes i t more difficult for civi l rights pl aintiffs to pursue novel claims, they will have greater reason to press custom, policy, or practice [da m ages] claims against local govern

ments”). It is hard to s ee how the Saucier procedure could have a significant effect on a civil rights plaintiff’s decision whether to seekdamages only fro m a municipal employee or also fromthe munici pality. Whether the Saucier proce dure is mandatory or discretionary, the plaintiff will pre

sumably take into acco unt the pos s ibility that the individ

ual defendant will be held tohave qualified im munity, and presumably the plaintiff will seek damages from the mu

nicipality as well as the individual employee if the benefits of doing so (any incre ase in the lik elihood of recovery or collection of damages) outweigh the litigation costs. Nor do we think that allowi ng the lower courts to exer

cise their discretion wit hrespect to the Saucier procedure will spawn “a new cottage indust ry of litigation .

. . over the standar ds for decid i ng whethe r to reach t h e merits in a given case.” Brief for Nat. Ass n . of Counties et al. as Amici Curi ae29, 30. It does not appear that such a “cot

tage indust ry” developed prior to Saucier , an d we see no reason why our decision today should produce such a result. IV Turning to the conductof the offic e rs here, w e hold that petitioners are entitled to qualified immunitybecause the entry didn o t violate c l early established law. An office r conductinga search is entitled to qualified immunity where clearly established law does not sh ow that the search viol ated the Fo urth Amendment. See Anderson, 483 U. S., at 641. This inquiry turns on the “objective legal reasonableness of the action, assess ed in light of the19 Cite as: 55 5 U

. S. ____ (2009) Opinion of theCourt legal rules that were cl early established at the time it was taken.” Wi lsonv. Lay n e , 526 U. S. 603, 614 (1999) (inter

nal quotation marks om itted); see Ho pev. Pelzer , 536 U. S. 730, 739 (2 002) (“[Q]u alified imm unity opera t es to ensure that before they are subjected to suit, officers are on notic e their cond uct is unlawful” (internal quotation marks omitted)). When the entry at is sue here occurred in 2002, the “consent-once-removed” doctrine had gained acceptance in the lower courts. This doctrine had been c o nsidered by three Federal Courts of Appeals and two State Supreme Courts sta rting in th e early 1980’s. See, e.g. , United Sta t esv. Di az , 814 F. 2d 454, 459 (CA7), cert. denied, 484 U. S. 857 (1 987); Unit ed St at esv. Bramble , 1 03 F. 3d 14 75 (CA9 1996); United Sta t es v. Pollard , 215 F. 3 d643, 648– 649 (CA6), cert. denied, 531 U. S. 999 (20 00); Sta t ev. Henry , 133 N. J. 104, 6 27 A. 2d 12 5 (1993); Statev. Johns

ton , 184 Wis. 2d 794, 5 18 N. W. 2d 759 (1994). It had been accepted by every one of thosecourts. Moreover, the Seventh Cir c uit had ap proved the doctrine’s a pplication t o cases involving conse n sual entries by p r iv ate citizens acting as confidential informants. See United Statesv. Paul , 808 F. 2d, 645, 648 (1986). The Sixth Circuit reached th e same conclusion after the event s that gave rise to resp ondent’s suit, see United Sta t esv. Yoon , 398 F. 3d 802, 806–808, cert. denied, 5 46 U. S. 977 (2005), an d prior to the Tenth Circ uit’s decision in the present case, no court of app e als had issued a contrary decision. The officers here wer e entitled to rely on t h ese cases, even though their own Federal Circuit hadnot yet ruled on “consent-once-removed” entrie s . The principles of qualified im munity shield an officer from perso nal liability when an officer reasonably believes that his or her condu c t complies wi th the law. Police o fficers are entitled to rely on existing lower cou rt cases without faci ng persona l liability fortheir actions. In Wilson, we explained that a20 PEARSON v. CALLAHAN Opinion of theCourt Circuit split on the relevant issue had developed after the events that gave rise to suit and concluded that “[i]f judge s thus disagree on a con s titutional question, itis unfair to subject police to money damages for pic k ing th e losing side of the cont roversy.” 526 U. S., at 618. Likewise, here, where the divergence of views on the consent-once

removed doctrine was created byt h e decision of the Court of Appeals in this case, it is improper to subject petitioners to money damages for their conduct. Because the unlawfulness of the officers’ cond uct in this case was not clearly established, petitioners are entitled to qualified i mmunity. We therefore reverse the judgment of the Court of Appeals. It is so orde red.