Circumstantial Evidence

Sixth Circuits Finds Limits to Circumstantial Evidence Cases

The United States Supreme Court is hearing oral arguments in Pearson v Callahan, Supreme Court No. 07-751, which could greatly expand the authority of the police to search an individual’s home. Several federal appellate courts have adopted a doctrine referred to as the “consent once” exception to the Fourth Amendment. Under this doctrine, a single consent to search is deemed continuing as a matter of law unless it is expressly revoked. In a case coming out of the Tenth Circuit police are arguing that consent to allow an undercover informant into a home early in the evening constitutes consent for the police to break into the home later in the evening. Surprisingly, the officers have a significant amount of authority on their side. Under this approach, if the police can trick their way into the foyer they may have consent to search the bedroom. This case is scary.

Linda Greenhouse from the New York Times summarized the doctrine as follows:

Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.


To read Linda Greenhouse’s complete analysis of the issue,
click here. For the SCOTUS blog summary of the case and complete access to the briefs, click here. This case is a civil case and there is also a qualified immunity issue.