Our last column addressed cases touching on criminal law issues decided during the 2007-2008 U.S. Supreme Court term. This month, we look at the current 2008-2009 term, which began in October. Below are cases dealing with criminal procedure law that the Court has agreed to review; decisions in all these cases should be released sometime before next June.
Arrest Warrants The "Good Faith" Exception
Herring v. U.S.
When defendant Bennie Dean Herring walked into the Coffee County, Alabama, Sheriff's Department to check on a truck of his that had been impounded, one of the investigators recognized him, and thought there might be a warrant outstanding for his arrest. The investigator asked the warrant clerk to check the county database, which she did, but there were no active warrants for Herring in Coffee County. The investigator then called the warrant clerk in nearby Dale County, who checked her database and stated that there was an active warrant in that county charging Herring with failure to appear on a felony charge. Based on this information, the investigator arrested Herring (who had already left), and searched his truck incident to arrest he found methamphetamine and a gun under the front seat. Unfortunately, about 15 minutes after the initial call, the Dale County clerk called back to correct her information the warrant for Herring had been recalled. By this point, the arrest has already been completed.
Although no warrant was actually outstanding, the 11th Circuit Court of Appeals upheld this arrest under the "good faith" exception, finding that suppression of the evidence the investigator found would have no deterrent effect on police misconduct, and would therefore not serve the purposes of the Exclusionary Rule. The U.S. Supreme Court heard oral arguments in this case on October 7 and will soon likely rule whether or not the arrest was valid despite the faulty report of a warrant from the other county.
Consent to Search
Pearson v. Callahan
A confidential informant entered Afton Callahan's residence at the direction of police for the purpose of performing a "controlled buy" of methamphetamine. After the deal was completed, the informant (who was wearing a wire) gave a pre-arranged signal; officers entered the house and performed a protective sweep, despite not having a warrant. Callahan and his associates were arrested, and drugs and paraphernalia were seized.
The officers tried to justify the search under the "consent-once-removed" doctrine, where an undercover officer enters a house at the express invitation of someone with authority to consent, establishes probable cause to arrest or search, and then immediately summons other officers for assistance. This doctrine has been adopted by the Sixth, Seventh, and Ninth Circuit Courts of Appeal.
In this case, the 10th Circuit Court of Appeals found warrantless entry would have been justified if an undercover officer been in Callahan's house the Court saw no constitutional distinction between a resident consenting to one officer's entry into one's home and consenting to several officers' entry into one's home. However, the Court refused to extend this "consent-once-removed" doctrine to informants. In the case of an informant, the resident never consented to any police entry an informant is a private citizen, not a police officer. The Court ruled there is a difference between "inviting a citizen who may be an informant into one's house and inviting the police into one's house." Therefore, the search was ruled unconstitutional.
The U.S. Supreme Court agreed to review this case, and heard oral arguments on October 14. A decision should be released in a few months.