John G. Roberts, Jr.: We will hear argument next in case 07-751, Pearson v. Callahan. Mr. Stirba.
Peter Stirba: Mr. Chief Justice, and may it please the Court: At the time of the arrest in this case there were three different Federal circuits and two State courts that established it was Constitutionally permissible for police officers to enter a home without a warrant as a follow-up entry to effectuate arrest after an illegal drug transaction when a government agent had occurred and probable cause had been established. Although the rule has become known as the doctrine of consent once removed, and the lower courts have banned various rationales in support of the rule, the name or label is not important. What is important is that the rule is predicated upon well recognized Fourth Amendment principles, and that at the time of the arrest the consent doctrine was well established in the lower courts as settled Fourth Amendment law. Thus, irrespective of how this Court rules on the constitutionality of the rule itself, the Petitioner officers could have reasonably believed that what they were doing was lawful.
John G. Roberts, Jr.: Well, because the Fourth Amendment principle of consent was well established? In other words, if a police officer goes to the door and says "May I come in", that is -- that is perfectly acceptable. Is that -- that the level of generality that you think we ought to analyze this issue at?
Peter Stirba: No, certainly we think that the generality of just pure consent is not the level at which it should be determined. In fact, that was the problem with the Tenth Circuit case. But it has to be -- the right has to be defined in a specific clear way, and it has to be -- the contours of the right have to be sufficiently clear that police officers know that when they engage in the conduct, they know what they they're doing is unlawful. In this case, Mr. Chief Justice, all of the law that was in existing at the time of the entry was supportive of exactly what the police officers did.
David H. Souter: Well, it seems to me that misses the point of the case. I mean, the point of the case is that consent to the police was established, consent to police informants was not, and that when I consent I am not consenting to the -- to the whole world. If I am consenting to somebody who is not a police officer, that is not equivalent to consenting to a police officer. That's the point of the case; and as I understand it, there was -- there was only one case at the time that this occurred which equated the confidential informant for the police with the police; and that was the Seventh Circuit case; isn't that correct?
Peter Stirba: Justice Souter, we are not -- we are not contending this is an implied consent case, although that has been a theory that has been advanced in the lower courts. We believe that the way that this was constitutionally lawful -- this is really a Lewis case, and that is once you engage in some illegal conduct with a government agent in your home, you have waived any expectation of privacy.
David H. Souter: No, but that -- that equates -- in terms of existing law, that equates the government agent, which in this case is not a police officer, but a confidential informant, with a police officer. And it seems to me that is the nub of the case: Is that person equivalent, so that consent to one in effect is consent to as many police as want to come in, or is it not the case? And it seems to me what you have got to argue here is that the confidential informant and the police officer for Fourth Amendment purposes should be treated as identical.
Peter Stirba: Absolutely. And we do -- and we think--
David H. Souter: And there is no clear law on that. That's why we are here. There's one -- at the time that this search was made, as I understand it, there was only one case which held there was such an equivalence, is that correct?
Peter Stirba: --There are two points, Justice Souter. First of all, with respect to the lawfulness of the confidential--
David H. Souter: Well, first -- I want to hear what you say, but tell me, is it correct that at that time there was one case that held the equivalence?
Peter Stirba: --No, Your Honor. There actually -- there were actually three out of the Seventh Circuit, the Pollard case out of the Sixth Circuit, which involved a police officer and a confidential informant--
David H. Souter: Which was not a circuit case, right?
Peter Stirba: --That is a circuit case.
David H. Souter: District case?
Peter Stirba: That was a circuit court case, U.S. v. Pollard.
David H. Souter: So there were three circuit court holdings that the confidential informant was equivalent to a police officer?
Peter Stirba: There were three out of the Seventh Circuit. Paul, Diaz, and I think it's Aziano were all confidential information cases where the courts ruled squarely that there was no difference between a confidential informant and a police officer.
David H. Souter: Okay, did you -- now, do you have other circuits that held that?
Peter Stirba: Yes, Your Honor. The Pollard case involved a confidential informant--
David H. Souter: Where is Pollard from?
Peter Stirba: --Sixth Circuit.
David H. Souter: Sixth.
Peter Stirba: And they cited in support the confidential informant cases from the Seventh Circuit. We also read Gramble -- this is a 2000 -- I'm sorry, a 995 Ninth Circuit case which talked about a government agent, it did not draw a distinction between a confidential informant and a police officer -- as supportive as well. That's exactly what Judge Kelly determined in the dissenting opinion in the Tenth Circuit.
David H. Souter: Okay. Now why -- why are they correct? Why should the confidential informant be treated as equivalent to a police officer?
Peter Stirba: Well, fundamentally -- and of course the test for Fourth Amendments purposes is the Skinner test -- that once you are a government agent or a government actor, there really is no material difference in terms what the confidential informant would do or the undercover police officer would do.
Ruth Bader Ginsburg: Oh, but there is an enormous difference between the training and the character of a police officer and, as this very case illustrates, the confidential informants are often very shady characters who can't be counted on to be truth-tellers, and have a powerful incentive to get someone for the police, because in most cases they are seeking to have their own case dealt with sympathetically. So, how can you equate a police officer with a confidential informer, who is usually someone who knows where the drug house is because he's a dealer himself?
Peter Stirba: Two points. In our reply brief, pages 6 and 7, we point out the wide variety of confidential informants. They come in many different shapes and sizes.
Ruth Bader Ginsburg: How about this one? Wasn't this one that fits my description, the one in this case?
Peter Stirba: This one clearly had a drug problem. This one also attended college. This one also was a star athlete in high school, and this one also was reliable in a previous drug transaction. Moreover--
David H. Souter: He was trying -- and he was trying to make a deal to get leniency with the police.
Peter Stirba: --Well, there is no question about that. But once again, he is a government actor. For purposes of Fourth Amendment liability it doesn't matter whether it's a police officer or a confidential informant, as long as he is an agent of the government, which clearly he was. He was a government actor--
David H. Souter: But you -- you certainly cannot argue -- maybe you are, but I don't see how can you argue in response to Justice Ginsburg that the integrity to be expected from a confidential informant, taking that as a category of law including all sorts of informants, is the integrity that we would expect in a police officer.
Peter Stirba: --Well, as a general proposition, Justice Souter, you can't make that kind of determination. We point out--
David H. Souter: Why can't I?
Peter Stirba: --Because sometimes confidential informants are retired police officers; sometimes confidential informants are police cadets. Sometimes confidential informants--
David H. Souter: Then if that -- if that is true, as it clearly is, they run the gamut from the good to the bad. You can't make -- adopt the proposition categorically that confidential informants should be regarded as having the same integrity as a police officer.
Peter Stirba: --I wouldn't want to make that statement. I don't know that it's material, though, to the analysis under the Fourth Amendment and whether or not, once you are a government agent or a government actor, there really is no legal significance that flows from that to draw a distinction between one who is actually employed by the police, taking a paycheck from the police, and one who is not.
Ruth Bader Ginsburg: There's one feature of this is that I think is really puzzling: What this case is about is the Fourth Amendment, that requires, with certain exceptions, the main rule is to get a warrant. And here you have a confidential informer going to the place to make sure that they really do have the goods. Then he goes back to the police. He spends two hours. He's being wired and whatever else. Why didn't somebody pick up the phone and get a warrant at that point? The confidential informer could say: "I was there and I saw the drugs. " What -- the whole purpose of these rules is to have the police get a warrant when they can. And how do you explain that two hours lapse between when they had probable cause and when the -- when the informant returns for the second time?
Peter Stirba: Well, Justice Ginsburg, the officers testified why they didn't get a warrant, 244-245 in the joint appendix, and 256 and 257. Two problems: One, they weren't sure the drugs were going to be there. These are small amounts of drugs in a rural area; they dissipate very quickly.
David H. Souter: We're talking about probable cause. If they got a warrant within an hour or two of the time that that informant says he saw them there, do you seriously question whether there would be probable cause?
Peter Stirba: I am only going on the record and what these informed officers testified to.
David H. Souter: But we're asking for the basis. You're asking for a rule and our questions go to the reason for having that rule. And the officers may have said -- and I will assume they said -- in this case: Oh, gee, we weren't sure the drugs would still be there. But in terms of probable cause law, that's just not a serious answer, is it?
Peter Stirba: Well, it is. In essence we are talking about an anticipatory warrant, and under U.S. v. Grubbs you not only need probable cause to believe that the drugs will be there--
David H. Souter: They don't even need an anticipatory warrant. They need a warrant to go in and search that place on the grounds that there are probably drugs there, and if they saw drugs there a couple of hours beforehand and they had no affirmative evidence which they should bring forward under the Frank standard to indicate that the drugs were being taken out, is there any serious question that probable cause would be found?
Peter Stirba: --Justice -- Justice Souter, I don't believe at the time, approximately 9 o'clock in the evening, the police had probable cause to believe the drugs were there.
David H. Souter: An informant just came out and said there were drugs there and they don't have probable cause?
Peter Stirba: At the time of 9 o'clock, I don't think it was established that there were drugs--
David H. Souter: Why not?
Ruth Bader Ginsburg: I thought it was established not only that there were drugs, but that he actually tasted some.
Peter Stirba: --He never told the police that. And the purpose--
Ruth Bader Ginsburg: But--
Peter Stirba: --The purpose of the operation, of course, was to establish that there was in fact drugs in the house. The transaction would occur and that would conclusively establish probable cause. I don't think we should fault the police for essentially being careful before they entered the home to make sure that in fact they had probable cause.
David H. Souter: The reason the police are being faulted is that they didn't get a warrant. And the warrant requirement is a generally good starting place for a Fourth Amendment argument. Justice Ginsburg's point is that if they had an informant who had seen drugs in the place within two hours, they had, if they'd been before a magistrate, the basis in probable cause to get a warrant. And I still haven't heard why in fact they couldn't have got one or why they didn't have the probable cause.
Peter Stirba: Well, as I -- as I explained before, they believed the drugs in--
David H. Souter: I'm not interested in what they personally believed. We're talking about objective Fourth Amendment standards. Did they or did they not have a basis to establish probable cause at that point?
Peter Stirba: --We don't believe they did, Your Honor. And we don't believe they could have gotten a--
David H. Souter: That is--
Peter Stirba: --an anticipatory warrant.
David H. Souter: --I will admit that is the most astonishing view of probable cause I have heard in this courtroom. Of course they had.
Peter Stirba: Well, the record evidence doesn't substantiate that, or they would have gotten--
David H. Souter: Why doesn't it?
Peter Stirba: --Or they would have gotten a warrant.
David H. Souter: Why doesn't it? As I understand, the record evidence is that their informant was in that guy's home, and within two hours of the point that we went through, the second entry, he had seen drugs. Why wasn't there probable cause within that two-hour period?
Peter Stirba: Because the police did not believe that at the time that they could have gotten a warrant, that the drugs would not have been dissipated. And they -- as they testified--
David H. Souter: Is that a reasonable belief?
Peter Stirba: --Pardon me?
David H. Souter: I mean, we're talking about probable cause, not an establishment of mathematical certainty.
Peter Stirba: Here's another point. That is just an option, Justice Souter, the police -- if you believed the police could get a warrant. They didn't have to get a warrant. They obviously were engaged in a buy/bust operation, which eventually led to them to the particular position where they clearly established probable cause.
David H. Souter: They clearly would have been if they had sent a police officer in. You're asking us to extend the police officer rule to include a confidential informant rule. One reason for doing so is, or would be, that in practical terms there is a need for it. Justice Ginsburg's question was, why is there a need for it, when they could have gotten a warrant? And we still haven't heard an answer.
Peter Stirba: In rural Utah -- and this is page 47 of the joint appendix -- the officers testified that one of the reasons why they need to use confidential informants is because the police are all known. And, therefore, if they're going to engage in any drug--
David H. Souter: Then why didn't they use the confidential informant to get a warrant?
Peter Stirba: --Well, I don't know how I can answer the question any more than I have, Justice Souter.
David H. Souter: That doesn't--
Peter Stirba: They -- they chose not to, for reasons they didn't believe they had probable cause and they were concerned that the drugs had been dissipated.
John G. Roberts, Jr.: Counsel, in every -- given the posture of the ultimate issue in this case on the underlying constitutional question, you do not have to prove that you are right; isn't that correct? You have to establish that the contrary principle is not clearly established?
Peter Stirba: That's correct. And the law at the time that these officers engaged in this operation, entered the home -- and once again, it was based upon probable cause -- supported in fact constitutionally what they did, and that it was indeed permissible. And that was the basis upon which we believe, irrespective of how the Court views whether they should or should not have gotten a warrant and the constitutional implications of that, that the law was clearly not established sufficiently such that these officers were entitled to qualified immunity. That was one of the problems with the Tenth Circuit case. They--
Ruth Bader Ginsburg: --May I just establish one thing? Tell me if I am wrong. That this argument about consent once removed was not presented in the lower courts. That is, in the trial court you argued exigent circumstances, and then on appeal the inevitable discovery rule. So there was -- in the courts below, this was not given as the reason, the consent once removed was not alleged as the basis, as the justification for this search?
Peter Stirba: --That's true. On the criminal appeal, the State did not argue Lewis, did not argue consent once removed. And that is part of the problem with a number of cases that have been cited by the Respondent. They are exigent circumstances cases where the consent once removed doctrine of Lewis isn't even advocated or litigated. We think that's very important. Unless the justices have any other questions, I'll reserve the rest of my time.
John G. Roberts, Jr.: Thank you, counsel.
Peter Stirba: Thank you.
John G. Roberts, Jr.: Mr. Stewart.
Malcolm L. Stewart: Mr. Chief Justice, and may it please the Court: The police entry in this case was constitutional and, in any event, did not infringe any constitutional right that was clearly established at the time the officers acted. The mandatory order of decision for qualified immunity cases announced in Saucier v. Katz should be overruled. I did want to begin by clarifying the answer to your question, Justice Ginsburg, because I'm not sure if it was entirely clear. There were really two cases here, one of which was the criminal prosecution of Mr. Callahan, the Respondent in this Court. And the individual officers were not parties as to that case. That was handled by the State of Utah. And you're correct that in the criminal proceeding the consent once removed argument was not made. And that led to the motion to suppress ultimately being granted and consequently Mr. Callahan was not subject to criminal proceedings. Mr. Callahan did file a civil suit against the individual officers who were involved in effecting the arrest, and in that civil proceeding the consent once removed argument was made all the way up. It was made in the district court, and it was made in the court of appeals as well.
Samuel A. Alito, Jr.: Mr. Stewart, could I follow up on one other thing that came up during the preceding argument? Isn't the issue whether there was or was not probable cause quite separate from the consent once removed doctrine? What -- assuming that there was probable cause here, there may be many instances in which the consent once removed doctrine would be applied, if it's a valid doctrine, where there wasn't previously probable cause.
Malcolm L. Stewart: That's correct. I think the consent once removed doctrine would have its greatest utility in cases where the police suspect but don't have probable cause to believe that a particular individual is engaged in criminal activity, and so they send an informant or an undercover police officer in to try to either confirm or dispel their suspicions. They wouldn't be able to get a warrant at the outset because they would not have probable cause at that time of ongoing criminal conduct.
David H. Souter: But if our question is should consent once removed be recognized as a doctrine that covers the confidential informant in this case, one question that we may sensibly ask is, is there a need to recognize that broad a consent doctrine? And one question that would bear on that would be, in these cases, is there difficulty or impossibility of getting a warrant under normal probable cause standards? And I think that was the point of Justice Ginsburg's question. Do you doubt that they could have gotten a warrant within the two-hour period?
Malcolm L. Stewart: We certainly think that they had probable cause. There was testimony from police officers to the effect that magistrates in Utah would be reluctant to grant warrants based on these circumstances because of the possibility that the drugs would be dissipated. I am not in a position to second-guess their empirical experience as to the circumstances under which Utah magistrates will and will not grant warrants. But we think as a legal matter that there was probable cause, and that a warrant should have been issued. But certainly there are -- there are plenty of circumstances--
Ruth Bader Ginsburg: That's -- it's not just this case. Maybe you can tell me. I thought because they were dealing with a confidential informant rather than a police officer, they sent him in to do the dry run. I mean the -- in the police officer cases usually the -- the undercover police officer goes in. The other police officers are there ready to come in when he gives them the signal. But the police officers don't ordinarily go through this dry run that they had here with the confidential informer.
Malcolm L. Stewart: --Well, I -- I would think that with either police officers or with informants you could have some situations in which the undercover operative has very recently attempted to confirm the presence of drugs. And you can have other cases in which the undercover operative, again either an informant or a police officer, could hear rumors on the street that a particular individual was engaged in drug-dealing, might not have probable cause, and they might decide that the best way to set up the operation was to send this person in to attempt to make a buy at a time when probable cause was lacking. But they would want to arrange the operation in such a way that if the operative's experience confirmed their suspicions and gave them probable cause to arrest, they would be able to go in immediately. And our principal contention is not that the consent to the entry of Bartholomew was implicit consent to the later entry of the police officers. It was that once a person has, even unknowingly, admitted a government agent into his home, his expectation of privacy is sharply reduced and the entry of the officers works an insubstantial incremental invasion of privacy. And I would like to return to the point that Mr. Stirba was making. It's true that the informant here lacked the training and skills that -- and integrity, for that matter, that you would expect a police officer to have. But he was for Fourth Amendment purposes a government agent a State actor. If his handlers had instructed him to look for an opportunity to rummage through the drawers--
John Paul Stevens: Mr. Stewart, could I interrupt you, because there is something that hasn't been reached. Do you think that we should answer the constitutional question first or the immunity question first?
Malcolm L. Stewart: --We think that this Court in this case should address the constitutional question first because it is the subject of the square circuit conflict, it's been briefed and argued, it's a question that independently warrants resolution.
Stephen G. Breyer: It is quite difficult. I mean there -- we don't know quite a lot about whether they would have gotten a warrant, how -- how dangerous it was, whether the drugs were likely to be hidden. And I was thinking of it, and that's why I am saying this, is that it's a perfect reason since constitutional questions in this area are -- are like the stars in the sky. There are so many. Rather than having the judges answer each one and getting everything mixed up, why not just have them take whatever is the easier path? As a judge I like to take what is the easier path.
Malcolm L. Stewart: Well--
Stephen G. Breyer: And if it's easier to deal with the qualified immunity, deal with it and forget the rest of it.
Malcolm L. Stewart: --I guess the first thing I would say in response to that is we think that the -- the balance or the way in which discretion will ordinarily be exercised will typically be different in the case of the lower courts than in the case of this Court, because the principal role of the lower Federal courts is to decide individual cases before them usually in the most expeditious and noncontroversial way where they--
Stephen G. Breyer: I see that, but unless we do that here, they are never going to get the right message. And so what we will have is 1,000 judges trying in an average in a year 50 or 60 cases each with multiple facts, and we will have approximately over a 10-year period hundreds of thousands. I've exaggerated, but there will be many, many -- many, many conflicts, many, many confusions. And unless we say, no, we are not doing it ourselves, how will they ever get the message?
Malcolm L. Stewart: --Well, I think they will get the message--
Stephen G. Breyer: We don't always have to do it, but I mean once.
Malcolm L. Stewart: --I think they will get the message if the Court tells them that the mandatory rule of Saucier is no longer in effect, that courts have discretion to decide based on their sound judgment whether it is--
John G. Roberts, Jr.: Why isn't it -- why isn't it an advisory opinion, if we do not have to decide -- to decide the ultimate question whether this is constitutional or not, but simply whether or not it was clearly established whether it was unconstitutional? Why isn't it purely an advisory opinion to say whether it's constitutional or not?
Malcolm L. Stewart: --I mean, in one sense it's an advisory opinion, but in another sense there are -- there are often cases in which two alternative grounds for a decision are proffered, either one of which, if accepted, would compel a judgment in one litigant's favor. And the fact that it would theoretically -- if the court concludes there is only--
John G. Roberts, Jr.: No, no. Those are different grounds, it seems to me. Those are two independent, as you said. Here it's kind of a -- it's a progression. You first ask, either, under somebody's view, I guess, Saucier, whether or not it's constitutional or not and then whether it's clearly established. I just don't know why the first question isn't purely advisory, because you don't have to know whether it's constitutional or not.
Malcolm L. Stewart: --Well, it's true that if the Court announced that this search was constitutional, that it would necessarily be saying: And there was no clearly established constitutional law to the contrary at the time the officers acted. But the Court--
Stephen G. Breyer: --to the question. I mean, look, if I have to answer the constitutional question -- and what bothers me is this consent at one remove. What? You are saying a drug seller who lets in a disguised policeman in order to sell him a drug because he thinks he's a druggie is suddenly consenting to the entire LAPD coming into his house? I would think that is the last thing he would have thought about wanting, not the first.
Malcolm L. Stewart: --But that -- that would be equally true in the case of the undercover police officer.
Stephen G. Breyer: Well, maybe they both should be the same. I--
Anthony M. Kennedy: That's what I wanted to know, and it gets back to the merits and not Saucier. We are going through two different things here. Assume this is an undercover officer, not an -- not a -- not an informant. Now, the undercover officer sees a crime being committed, and he is ready to make the arrest. Can he automatically ask for police assistance and -- and other policemen? Are the police then entitled to come into the home in your view, or do there have to be some exigent circumstances?
Malcolm L. Stewart: No. We think he could automatically ask for the police to come into the home because the incremental intrusion on privacy by having several police officers rather than one to make the arrest would be insubstantial.
David H. Souter: But isn't the reason it's insubstantial is that we have a rule for independent reasons having nothing necessarily to do with this kind of situation in which one officer's knowledge is regarded as another officer's knowledge. The police are regarded as a group, so that we have a rule ready, in place, saying: You show one, you have shown the whole department. We don't, however, have any such rule with respect to agents generally.
Malcolm L. Stewart: I think you don't have that precise rule, but it is nevertheless the case that the undercover operative here, the informant, was a State actor. Had he been instructed to look in private places without consent, his conduct would have constituted a Fourth Amendment violation because he would have been regarded for that purpose as -- as an agent of the State, and he should, therefore, be regarded as a State agent for these purposes.
Anthony M. Kennedy: Just -- just to be clear, if -- if I may, I know your red light is on: Your position is if an undercover officer is in the premises and sees a crime being committed, he automatically can invite police in to assist him in making an arrest without exigent circumstances?
Malcolm L. Stewart: That's correct.
Anthony M. Kennedy: What's -- what do I read? What authority do you cite me for that proposition?
Malcolm L. Stewart: I don't think this -- this Court has ever squarely so held. I believe that the Respondents concede that because they don't take issue with the fact that consent once removed is applicable when the person already inside is an undercover police officer.
John G. Roberts, Jr.: Thank you, counsel. Mr. Metzler?
Theodore P. Metzler Jr.: Thank you Mr. Chief Justice, and may it please the Court: This is a case about consent. By consenting to the entry of a confidential informant, that Mr. Callahan consented to the entry of police. The answer is no, and no reasonable officer could have believed otherwise. This Court has long held that it is presumptively unreasonable for police to enter a home without consent or exigent circumstances or a warrant. Here there were no exigent circumstances; there was no warrant, nor was there any consent.
John G. Roberts, Jr.: YOU -- was Mr. Stewart correct that you concede that if this person entering the house were in fact a police officer, that this would have been okay?
Theodore P. Metzler Jr.: No, Your Honor. We think it's a closer case, but if it is a -- if this confidential informant had been a police officer, it would be the same analysis. There is no exigent circumstance here; there is no consent. And -- and the consent to be competent to the police officer in your case would not extend to the police officer in your case would not extend to the--
Anthony M. Kennedy: Well, you would agree he could make the -- the arrest by himself. Assuming he was a police officer--
Theodore P. Metzler Jr.: --Yes.
Anthony M. Kennedy: --he could make the arrest by himself.
Theodore P. Metzler Jr.: --he could make the arrest by himself. But--
Anthony M. Kennedy: But -- and -- but you are saying he can't ask for assistance to make that arrest effective in all cases. There has to be some exigent circumstance.
Theodore P. Metzler Jr.: --Correct. If -- if there are some sort of exigent circumstances, in this case they would plan that in advance; and police are not allowed to create their own exigency to get around the Fourth Amendment.
Samuel A. Alito, Jr.: You are advocating a rule that is going to get police officers killed, aren't they -- aren't you? If an undercover police officer is in a house making drug buy, and you want to say that the single officer who is there in an undercover capacity can say, "You guys are all under arrest. " he can't signal for other police officers to come in and help him effect the arrest without anybody being killed?
Theodore P. Metzler Jr.: Of course, the safest thing for him would be to simply withdraw, get on the telephone, and get a warrant to come back in, or during the two hours that they were planning this entry he could have gotten a warrant then or an anticipatory warrant. There are plenty of stated options.
Anthony M. Kennedy: Well, it seems to me that in the case that Justice Alito put, that there are exigent circumstances.
Theodore P. Metzler Jr.: Well, to the extent they planned it in advance, and the basis of their entry--
Anthony M. Kennedy: Well, that -- that's a different point and I have some question about that. It seems to me the police are never quite sure exactly what's going to happen.
Theodore P. Metzler Jr.: --Well, if they -- if they planned on an exigent circumstance as being the reason that they are allowed to go in, under this Court's decision -- the long line of decisions in Payton and Steagald saying exigent circumstances or consent are the way to get in without a warrant, then it would not be permissible. If--
Stephen G. Breyer: Imagining -- you are imagining different cases. We can imagine a spectrum of cases. In some cases the policeman or the confidential informant will be there, and he really couldn't have gotten a -- a thing in advance -- a warrant in advance. It wasn't certain, and they are in there and they see a lot of drug behavior going on, and the drugs are going to be hidden, go, disappear the second he leaves; and if he tries to arrest them, everybody is going to jump on him and kill him. Okay? So there are a lot of cases just like this one, but with a few changes, which are -- he needs to call the police, and there will be others where he doesn't. So that's why I am so uncertain about what it is we are deciding here on the merits. We would have to say on the merits this is a case where there are no exigent circumstances. Can we say that? I -- would not want to "never are there".
Theodore P. Metzler Jr.: --I think certainly in this case there were not exigent circumstances. The informant was on his way out the door. He -- he wasn't attempting to make an arrest. No one thought that the -- that Mr. Callahan would destroy the drugs or that anyone would leave. In fact, the Petitioners abandoned exigent circumstances in the court of appeal. So I think you can decide this case on the merits, as there were no exigent circumstances. And then ask, is it reasonable to think that because there was an informant inside and because he sent out a signal that there was probable cause, a drug transaction had happened inside the house, does that make any difference whatsoever as to whether there was consent?
John G. Roberts, Jr.: That's a tough -- at least I find it a very difficult question. I do not find it necessarily a terribly difficult question whether that -- whatever the answer is -- whether it was clearly established, precisely because I find the underlying questions difficult. So you have a handful Court of Appeals decisions, you have got a factual variation; the issue is whether to extend the police coming in to a confidential informant, all of those questions are very difficult; but precisely because they are, it doesn't seem that the rule, whichever rule is adopted, is clearly established. Why don't -- and yet if I were on the lower court of appeals, you would say -- or Saucier would say, I have got to decide that very difficult constitutional question and then decide what's a very easy qualified immunity question. Does that -- why does that make sense?
Theodore P. Metzler Jr.: With respect, Mr. Chief Justice, I don't think it's a difficult question.
John G. Roberts, Jr.: Well, I know you don't because you are arguing one side of it. [Laughter] But concede for purposes of argument that it is a difficult question. Why don't we just tell the lower courts -- we do it, we go right ahead to the qualified immunity question by not granting cert on one. Why shouldn't the lower courts have the same luxury?
Theodore P. Metzler Jr.: Well, with regard to the Saucier question, we think the Court should keep the Saucier question, and particularly in this case where there is a circuit split, the court should decide the constitutional question and not move on to the clearly established question--
John G. Roberts, Jr.: Why, because we need to provide guidance on that question?
Theodore P. Metzler Jr.: --Yes.
John G. Roberts, Jr.: Well, do you think it can't come up any other way?
Theodore P. Metzler Jr.: It certainly could come up--
John G. Roberts, Jr.: Yes.
Theodore P. Metzler Jr.: --in a criminal case.
John G. Roberts, Jr.: Or a -- or a suit against the political subdivision, right? You could have sued some other political entity other than the officers individually, right?
Theodore P. Metzler Jr.: Certainly. Mr. Callahan did sue the county in this case. But--
Anthony M. Kennedy: It seems to me that this is an area where the police do need guidance, and I need guidance. I find this -- I find this very difficult. It seems to me that we could have learned a lot if the -- if the courts of appeals had addressed this question.
Theodore P. Metzler Jr.: --Well, this Court in Payton and Steagald--
Anthony M. Kennedy: Which is what they do in Saucier.
Theodore P. Metzler Jr.: --I didn't hear the Justice's questions.
Anthony M. Kennedy: Which is what they would do under Saucier.
Theodore P. Metzler Jr.: Right. Well, I mean, it's important to understand the constitutional question first in this case and in other cases in order to make sure that the -- that the law continues to elaborate that potentially meritorious constitutional rights are--
John G. Roberts, Jr.: Well, but that was my question. There are other ways for the law to develop. The issue can come up on merits in the suit against the municipality which doesn't raise the qualified immunity question. If you come up -- if you have a search where a person sues to get whatever was seized back. You know, if there's a -- and also the option is, if the question of which order want to proceed is optional, the law can develop if the courts for good and sufficient reason decide to reach the constitutional question first. I -- I'm just wondering what benefit there is in an absolute rigid rule that courts of appeals -- I had a few of these cases in courts of appeals; I thought it was very odd that I had to go and decide a difficult constitutional issue and then not worry about it because in one sentence you say well, but the issue is not clearly established and so it's qualified immunity.
Theodore P. Metzler Jr.: --Well, that would take us to back before Saucier, the Court -- it's a recent decision that hasn't been proven to be unworkable. And in fact--
John G. Roberts, Jr.: Well, but my point though is that at least in my experience it was unworkable, or at least frustrating, in that we had to decide not just a factual question but a constitutional question in a context where it wasn't necessary.
Theodore P. Metzler Jr.: --Well, it depends on your view of necessity. In some cases certainly, it won't really come up in other contexts and the law is not established in section 1983; it may never be established. But here we are talking about a question where there is a circuit split and the Court definitely should provide guidance to the lower courts. I don't think that--
John G. Roberts, Jr.: Doesn't the fact that there is a circuit split almost by definition mean that it's not clearly established?
Theodore P. Metzler Jr.: --Well, this Court has looked to controlling -- its own precedents and controlling circuit law to decide what is -- what law is clearly established, and here, Payton and Steagald the courts held that there is a bright-line rule that's very simple for police officers, it's easy for them to understand. If they would like to enter without a warrant and they don't have exigent circumstances and they don't have consent, then it is presumptively unconstitutional. And it's a good rule and an easy rule and it's also why this is not a difficult constitutional question. There are no exigent circumstances in this case, and no reasonable officer could conclude that the presence of a confidential informant in the house means there is consent to the police officer.
Samuel A. Alito, Jr.: What if -- what if the officers in this case had read the Seventh Circuit decision, and they said these are judges on the United States Court of Appeals, and they think this is consistent with the Fourth Amendment? And what's more, one of these is written -- one of these opinions is written by Judge Posner, and he's the smartest man in the world ---- [Laughter] He knows everything there is to know about law and economics and jurisprudence and literature and many other subjects. Is it unreasonable for them to follow that?
Theodore P. Metzler Jr.: Well, I think the officers in the Tenth Circuit need to be aware the way that our Federal court system works, and the Seventh Circuit decision isn't binding on the Tenth Circuit. And with all due respect to Judge Posner, he dropped ball on this one. He says this -- this is a the case where -- it's the United States v Paul -- there are no exigent circumstances; the officers there could have gotten a warrant and in fact should have gotten a warrant but he said it was justified by consent. He's saying that consent to one person is consent to many. And this Court's cases have said that consent is based on ordinary social expectation. When you let one person into your house, you just don't let in the whole world.
John G. Roberts, Jr.: If the Tenth Circuit says this is not allowed, and every other circuit since the Tenth Circuit's decision has held that it is, is that clearly established that it's not allowed in the Tenth Circuit?
Theodore P. Metzler Jr.: Yes. I think certainly an officer in the Tenth Circuit would be bound to follow the Tenth Circuit rule. I mean, it's not irrelevant that other -- that other courts have decided it differently, but to the extent that there is controlling law in the circuit, I think that--
John G. Roberts, Jr.: Then it is irrelevant. Then it is irrelevant that ten other circuits have decided it differently.
Theodore P. Metzler Jr.: --Well, that very well might wind up in this Court if--
John G. Roberts, Jr.: Well, right, but do the police officers get to decide that? Do they get to decide that not only Judge Posner thinks this, but ten other circuits think this, and it has been five years since the Tenth Circuit. I mean, do they have to go through that type of analysis?
Theodore P. Metzler Jr.: --Well, we don't expect officers to survey the entire case law and come up with a law professor's view of whether this is reasonable or not. We expect them to follow the clearly -- the bright lines that this Court has set down and that are set down in their home jurisdictions. And if their home jurisdiction says it's unconstitutional it's not reasonable for them to follow some out-of-circuit decision. If, for instance, the Seventh Circuit had said that a warrantless home entry is okay so long as the officer had breakfast in the last half-hour, that's an unreasonable rule, and it wouldn't be reasonable for any officer to follow that. And the facts here are about as relevant to consent as to whether there was -- the officer had breakfast that morning. So the officers here are not entitled to qualify -- nor can they rely on the Seventh Circuit. The Petitioners have not given you any reason to adopt a new exception here. They say this is based on a waiver theory or that it's a private search or that it is incident to arrest. But all of those ignore the substantial interest in the sanctity of the home.
John G. Roberts, Jr.: Do any of the other cases involve -- the other circuit cases involve confidential informants as opposed to police officers?
Theodore P. Metzler Jr.: Other than the Seventh Circuit?
John G. Roberts, Jr.: Yes.
Theodore P. Metzler Jr.: The -- one case in the Sixth Circuit there was both a confidential informant and a police officer were admitted. And then there's a later case in the Sixth Circuit that did say this is okay for it, which came after this case.
John G. Roberts, Jr.: So at the time every circuit other than the -- you know, if there is a police officer and a confidential informant, I think that could be considered a police officer because he is going to call the police in -- every court of appeals decision involving a confidential informant said it was okay.
Theodore P. Metzler Jr.: Actually we have cited three circuits where these same facts happened. In the Eighth Circuit, the First Circuit and the Eleventh Circuit.
John G. Roberts, Jr.: And in those circuits, did the court focus on the distinction between the police officer and the confidential informant?
Theodore P. Metzler Jr.: Well, no. The court looked to whether there were exigent circumstances or consent. The courts followed this Court's decision in Payton and Bramble and that line of cases.
John G. Roberts, Jr.: Do you believe that -- what is the appropriate level of generality to look at in addressing this question, a case involving a confidential informant?
Theodore P. Metzler Jr.: I think the appropriate level of generality is that the facts under the court -- the court has covered the field when it comes to warrantless home entries. If you have a warrant, you are okay. If you have exigent circumstances, you are okay. And if you have consent, you are okay. Everything else is presumptively unconstitutional.
John G. Roberts, Jr.: Why is that?
Theodore P. Metzler Jr.: That's a good question.
John G. Roberts, Jr.: Why isn't it that the issue hasn't come up, this question of a confidential informant is one that hasn't come up? Why would we say that is presumptively unconstitutional?
Theodore P. Metzler Jr.: Well, the Court's language is presumptively unconstitutional has said that many times.
Ruth Bader Ginsburg: You are talking about the main role of police is get a warrant, except -- and I think the Court has said a number of times to make this search reasonable, the police have to get a warrant if you want to interject the judicial between police and the person in jeopardy. So the main rule is warrant unless -- and then you have exceptions, but I think your point is that there is a main rule.
Theodore P. Metzler Jr.: Yes.
Ruth Bader Ginsburg: This Court has gotten from the Constitution?
Theodore P. Metzler Jr.: Yes.
Ruth Bader Ginsburg: Get a warrant if you can.
Samuel A. Alito, Jr.: Isn't your argument that in a situation where the exigent circumstances are the creation of the scenario that the police have set up, the police cannot -- and you have a police officer who is being the undercover operative who has the power to make an arrest, that police officer cannot signal for other officers to come in and assist with the arrest?
Theodore P. Metzler Jr.: Well, our position is that would be -- the additional officer entry would violate the Constitution--
Samuel A. Alito, Jr.: The additional officers would -- that would violate the Fourth Amendment?
Theodore P. Metzler Jr.: --Yes.
Samuel A. Alito, Jr.: Even if there is an officer safety problem there?
Theodore P. Metzler Jr.: Well, to the extent that they have created an officer safety problem, obviously the officers are going to go in to help him, no one is going to get hurt. But the additional officer's entry can violate the Fourth Amendment.
Anthony M. Kennedy: So the police say, you know, we made a mistake. We should have had a warrant, but we have our man in there now, we have got to do something. The police cannot send assistance?
Theodore P. Metzler Jr.: No, of course, they can send assistance. And they probably--
Anthony M. Kennedy: No. You say they have created the exigent circumstances.
Theodore P. Metzler Jr.: --Yes, they have, which is why the additional officer's entry would violate the Fourth Amendment. Now, there might be limited--
Anthony M. Kennedy: So -- so my first statement was correct. It's illegal for the police to send their assistance, the other officers in?
Theodore P. Metzler Jr.: --Yes, my answer was as a practical matter no -- no police officer is going to leave, even if--
John G. Roberts, Jr.: No, but then he is going to get sued.
Theodore P. Metzler Jr.: --He very well may get sued and there are questions of fact as to--
Anthony M. Kennedy: And you say as a practical matter we have to say that under the Constitution we can endanger -- we must endanger the officer?
Theodore P. Metzler Jr.: --Well, I disagree that the officer could be in danger--
Anthony M. Kennedy: No, no. The hypothetical is that they have to send people in to assist him. But the hypothetical also is they should have anticipated this, and therefore, in your words, they created exigent circumstances.
Theodore P. Metzler Jr.: --They did create the exigent circumstance--
Anthony M. Kennedy: It seems to me that dilemma and that paradox casts considerable doubt on your proposition that if the police create the exigent circumstances, they cannot rely on it. I seriously question that proposition.
Theodore P. Metzler Jr.: --Even if -- even if you disagree with me on that, it shouldn't make any difference in this case where there was no exigent circumstances.
Anthony M. Kennedy: No, no. I want to talk about the general rule.
Theodore P. Metzler Jr.: Okay. Well, the general -- never mind--
Anthony M. Kennedy: You want us to write an opinion saying that any time police create the exigent circumstances, they can't rely on them if they had had the time to get a warrant. And I find that a dangerous rule.
Theodore P. Metzler Jr.: --I don't think you would need to to write the opinion that would say that, because exigent circumstances are not in this case.
David H. Souter: Mr. Metzler, what do you say to this line of reasoning, we have in prior cases adopted the positions that for purposes of establishing probable cause, the knowledge of one police officer is also the knowledge of all police officers, at least within a department or working on a particular problem. So that if in a case in which there is a search without a warrant, if you add up everything that individual officers knew and that amounts to probable cause, then the search is good. Why don't we apply, in effect, the same rule in the hypothetical case that you have been given, which is a police officer who was admitted by consent and there are other police officers outside. At the point at which the police officer who has been admitted has the knowledge necessary for an arrest and has that knowledge as a result of the invitation and the waiver of privacy as to him, why don't we regard that on sort of general doctrinal grounds as a waiver of privacy with respect to the police in general, just as we regard police knowledge as being imputed to all police officers? That way you don't have the problem that, for example, Justice Kennedy's hypo raises, even in the case of exigent circumstances. But it doesn't open the door to what you were objecting to here. Why isn't that a proper solution or proper answer to this hypo?
Theodore P. Metzler Jr.: Well, if you are to adopt that sort of -- I think you certainly could adopt that rationale. But I don't think the way to get there is through a waiver, because real there's nothing that the person -- the suspect has done that he knows about that would mean that he waived the expectation that additional people would come in. There might be--
David H. Souter: No, you are absolutely right in terms of his psychological process, the only person he has invited in is the one person. The reason for coming up with the answer I suggested is a broader doctrinal reason. That is the reason that we have for probable cause purposes regarded the police -- or the knowledge of one police officer as the knowledge for all. Why don't we, for the same reasons, since it is privacy that is at stake in all of these cases, regard the invitation of one police officer as the invitation of all, or to all?
Theodore P. Metzler Jr.: --Again, I don't think that the way to get there is through consent. If you want it to balance and say, well, the government has an agent in there who is making the arrest and there is safety concerns and other reasons why we would want to do that, that might be one way to get there. I don't think it's through consent.
David H. Souter: It would be consent to one officer plus a doctrinal basis to construe that consent for Fourth Amendment purposes as a broader consent.
Theodore P. Metzler Jr.: Yes.
David H. Souter: That's what we would be doing. We wouldn't be doing it because the individual in the trailer says I am inviting in the whole L.A. police department. We are doing it because he invites one L.A. police officer in, and we have doctrinal basis for regarding the police, as it were, collectively rather than individually for probable cause purposes when privacy is at stake.
Theodore P. Metzler Jr.: That would be -- that would certainly be a basis to allow for police officers.
David H. Souter: Would it not open the door to, I guess, to what you are objecting to?
Samuel A. Alito, Jr.: Why would probable cause solve the problem at all? There is clearly probable cause here. They are listening to what goes on. So they're -- do you dispute that when they hear that the drug transaction is taking place, that they lack probable cause?
Theodore P. Metzler Jr.: No, I think they do have probable cause. But in Payton, the Court said that police officers who are outside who have probable cause need more than probable cause to get inside. They need a warrant, exigent circumstances.
David H. Souter: Right. I think I may have created this problem for you and -- and maybe I -- I should get you out of it. [Laughter] I'm not suggesting that the probable cause rule is what is operative here. I'm saying that for probable cause purposes we regard the police collectively, and why, since our privacy is at stake there and is at stake here -- why shouldn't we have a collective consent rule, too?
Theodore P. Metzler Jr.: You certainly could--
David H. Souter: That -- that's my proposal.
Theodore P. Metzler Jr.: --You certainly could adopt that rule, and that would be a -- an additional reason for police to enter beyond what has been thus far established by this Court.
John G. Roberts, Jr.: How do you decide whether the confidential informant should be considered an employee of the police? Let's say this is the tenth undercover operation he has engaged in. They give him $100 after every undercover operation. I mean, is he an employee of the police department?
Theodore P. Metzler Jr.: I don't think his employment status is -- is what is at issue. The question is whether he is an agent of the state for the purpose that he is inside -- for the purposes of making an arrest of the person inside the home. Here the confidential informant, all he is really doing is acting as a surveillance device. He is telling the officers outside what is happening inside. And he gives them probable cause.
John G. Roberts, Jr.: Why doesn't -- that doesn't make him an agent of the police?
Theodore P. Metzler Jr.: No, I don't think so. He might be an agent for some purposes but he is not an agent for purposes of making an arrest inside, which is what they want to do.
Samuel A. Alito, Jr.: What is it there is a State statute that says that confidential informants may be designated by the police department to assist in making arrests?
Theodore P. Metzler Jr.: If there was some assist to making an arrest -- of the government, then assuming we are following Justice Souter's new exception, then I think that they would fall into that exception. But here, of course, the confidential informant is no such thing. This confidential informant was not acting for the police. He wasn't making an arrest. There was no--
John G. Roberts, Jr.: He wasn't acting on his own. He was acting for the police. He didn't decide I'm going to do this and -- because you know, I want to do it, and it just so happens the police are involved as well.
Theodore P. Metzler Jr.: --Well, that's true. He was acting with the police but he wasn't acting for the police. And nothing that the -- that the confidential informant did inside, even if attributed to the police, would give police the right to cross that threshold. If this confidential informant were a police officer, I think you would have to base it on the power of the police to make the arrest inside, the power of the State to make that--
Ruth Bader Ginsburg: Even if there is such a thing as citizen's arrest, I think it was part of this record that -- that they do not want confidential informers to go making arrests, so that the police distinguish the confidential informer.
Theodore P. Metzler Jr.: --That's correct, Justice Ginsburg. Both the Solicitor General and the Petitioners agree that confidential informants should not and would not be making these arrests. So the function of the confidential informant is really as I said, just a surveillance device; and what is important is not what he is doing but what the police are doing who are outside.
Ruth Bader Ginsburg: But going back to why should we decide this question, particularly in Fourth Amendment cases when these issues will come up on suppression motions, so there isn't a need to decide them in the -- in the civil context.
Theodore P. Metzler Jr.: But I think in general we are talking about a very small category of cases like this one where their -- the criminal defendant won on the Fourth Amendment and then the police bring up some new argument on a qualified immunity defense because there would already be some law on the questions that were decided in the -- in the criminal case. So in those limited circumstances it seems to put too much of a thumb on the scale on the side of police that says well, you can come up with a new theory and you don't even have to show that it applies; all you have to show is that nobody has ever rejected your theory and then it is not fairly established. I don't think in that small number of cases that the balance should really tilt that far towards police. And here, here it's certainly not, where the Solicitor General and the Petitioners both agree that the Court should decide both questions. The constitutional question here is not very difficult. It boils down to, in the absence of exigent circumstances, could any reasonable officer have believed that the two circumstances they would like to see in previous cases -- that is, that a confidential informant is inside, and that he sends a signal out that there is probable cause -- do those make any difference whatsoever to the calculation of whether there are exigent circumstances or consent? The answer is no and no reasonable officer could have believed otherwise. If there are no further questions.
John G. Roberts, Jr.: Thank you, counsel. Mr. Stirba, you have three minutes remaining.
Peter Stirba: The colloquy about the safety concerns when the officer or the confidential informer are in the home I think highlight why the distinction between a confidential informant and the officer really doesn't make much meaningful headway in terms of the Fourth Amendment. Obviously if the police officer was acting under cover in this particular situation he would not have announced -- there were three arrestees who were actually in the premises at the time of the follow-up entry. He would not have said after the drug transaction occurred "oh, by the way, I'm a police officer, I'm here to arrest you. " for obvious reasons connoting safety and other issues which would have been attendant to them. Similarly the confidential informant isn't going to do that, either, for the same particular problem, even if the confidential informant had arrested powers under State law. The issue is the police officer can call up for backup and assistance to effectuate arrest, which is specifically what occurred here. Similarly, there is no really distinction to be drawn between a confidential informant as a government actor allowing for the additional entry or follow-up entry of additional officers for backup and assistance to make sure the arrest is safe and secure than if you have a police officer. The second point I would like to make is the first time any Federal circuit drew this distinction between a confidential informant and a police officer was the Tenth Circuit decision. They adopted consent once removed. They just limited it to a police officer. Obviously the police officers involved in this case could not reasonably be expected to anticipate such a distinction being drawn, especially given the fact that there was at least a Seventh Circuit body of law, the Sixth Circuit body of law, and as we argue, which we think is a fair reading of Gramble -- because they cite the Seventh Circuit body of law that includes the confidential informant -- there were at least three circuits that rejected that distinction, and you in 2000 confirmed that in the Sixth Circuit there is no distinction as a matter of this particular doctrine between a confidential informant and a police officer. And finally with respect to the exigent circumstances cases, and you can look at any one that was cited by the Respondent, there is no mention of Lewis, there is no mention of consent once removed, there is no mention of any abrogation of privacy. Those issues were not raised, just like the issues were not raised in the criminal appeal of Mr. Callahan's conviction; and so therefore they are really not relevant, they are not probative, and we are not suggesting this is an exigent circumstances case, nor are we suggest relying on for purposes of the Fourth Amendment issue any implied consent. We have rested our -- the justification for the Fourth Amendment issue on search incident and also the Lewis doctrine because we think this is a Lewis case. Thank you.
John G. Roberts, Jr.: Thank you, counsel, the case is submitted.