ABSTRACT :: In 2002 Brian Bartholomew was charged with possession of methamphetamine. In hopes of obtaining leniency, Bartholomew chose to assist the Central Utah Narcotics Task Force as a confidential informant. As an informant, Bartholomew arranged to buy drugs from Afton Callahan at Callahan’s home. Bartholomew then contacted narcotics officers to set up the sting operation. As part of the sting operation, Bartholomew entered Callahan’s home with Callahan’s consent and proceeded to buy drugs. After making the exchange with Callahan, Bartholomew signaled narcotics officers, who then entered and arrested Callahan.
At first glance the arrest appears to be an everyday, straightforward law enforcement tactic, but actually the situation poses a difficult constitutional problem: Was the entry by the police officers in Callahan authorized when the Fourth Amendment requires police officers to be authorized by warrant, consent, or exigent circumstances to enter a home? If Callahan gave his consent to Bartholomew, a civilian, can that consent be passed to law enforcement? On July 16, 2007, Callahan appealed to the Tenth Circuit Court of Appeals, alleging that the police officers violated his constitutional rights when they entered his home. The state conceded there was no warrant or exigent circumstances authorizing the officers’ entry into Callahan’s home. Instead, the state relied on the consent-once-removed doctrine to establish the officers’ authority to enter and arrest Callahan.
The consent-once-removed doctrine allows one individual to receive consent from the homeowner and then pass that consent to another individual, who can then legally enter the home to assist the first individual. Traditionally, the concept has been applied only to undercover officers who received the initial consent, but cases like Callahan’s pose the question of whether this doctrine is valid when extended to confidential informants.
In Callahan’s case, the Tenth Circuit considered extending the consent-once-removed doctrine to include consent obtained by a confidential informant. Ultimately, however, the court declined to extend the doctrine to civilians and instead held that consent to a confidential informant is insufficient under the Fourth Amendment to allow police officers to enter a home. This decision created a circuit split in the application of the doctrine and proves the need for a clear answer to the question of whether the consent-once-removed doctrine should be extended to situations involving confidential informants.
This Note examines the establishment and history of the consent-once-removed doctrine from its conceptual basis to its current level of acceptance. Part II outlines the basic Fourth Amendment concepts that underlie the consent-once-removed doctrine. Part III looks more specifically at the definition of the doctrine and its gradual formation over the past thirty years, as well as its current application to undercover officers. Part IV looks more critically at the issues posed by the extension of the doctrine to confidential informants, including analysis of the inherent differences between a confidential informant and an undercover officer, and the subsequent constitutional effects of those differences. Finally, Part V concludes that the consent-once-removed doctrine should be extended to situations involving confidential informants and that this extension is constitutional.