New Search and Seizure Case: The Doctrine of "Consent Once Removed"

The Sixth Circuit held last week in U.S. v. Yoon, 03-5875, 2005 WL 427883, (and here) that once a civilian informant gains permission to enter a suspect's home and establishes probable cause that contraband is present, the informant may signal the police to enter the house as well and the police may then conduct a search.  The court held that the permission given by the homeowner/suspect to the informant to enter the home constitutes "consent once removed" for the police to then search the home, even if the homeowner/suspect is not aware that the civilian is a police informant.  The scope of the police search is limited to areas where the informant was granted access under the consent initially given to him, and of course, the police can seize any contraband in plain view in those areas.  In so holding, the Sixth Circuit agreed with the Seventh Circuit's decision in United States v. Paul, 808 F.2d 645 (7th Cir.1986).

Although the justification given by the Sixth Circuit is thin, the rationale seems to be that once a suspect has granted access to his home to a confidential informant, he has voluntarily limited his expectation of privacy in the home.  Thus, having the police then enter and search does not intrude upon any privacy interest not already abandoned by the homeowner through consent.  This seems like a stretch to me.  Granting access to a "friend," although the friend turns out to be not such a good friend, and in fact is a police informant, is a far cry from consenting to a police search of your home.  I guess one could argue that the homeowner "assumes the risk," as in White, Hoffa, Lewis and Lopez, etc., that the person he allows to enter his home is working for the police, and thus, forfeits part of his expectation of privacy.  But then again, those cases involved conversations, not the home per se, where the Fourth Amendment's protection is at its zenith.  And beyond an assumption of the risk theory, a reasonable person who gives consent to his friend to enter his home probably believes he still has an expectation of privacy that includes the right to exclude the police.  In other words, granting access to a friend or civilian on the one hand, and granting access to the police on the other, are not the same or even remotely similar from the perspective of the subjective expectation of the homeowner.  [Mark Godsey]