Consent once removed does not permit an informant to invite in the police. There is a significant difference between consent once removed initiated by officers rather than informants. The government even offered a lame policy argument. Callahan v. Millard County, 494 F.3d 891 (10th Cir. 2007) [free link not yet on CA10’s website]:
We find the distinctions between an officer and an informant summoning additional officers to be significant. Had the person inside Mr. Callahan’s home been an undercover officer, no extension of our case law would be necessary. Mr. Callahan would have consented to opening his home to the police. Consent is a well-established method of conducting a reasonable search, despite lacking a warrant. United States v. Ringold, 335 F.3d 1168, 1174 (10th Cir. 2003) (“It has long been established that an officer may conduct a warrantless search consistent with the Fourth Amendment if the challenging party has previously given his or her voluntary consent to that search.”). Tenth Circuit precedent permits the police to use deception to gain such consent. See Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir. 1989). … Once lawfully inside the home, an officer may effect a warrantless arrest that is supported by probable cause. United States v. Cruz-Mendez, 467 F.3d 1260, 1269 (10th Cir. 2006). We have never drawn a constitutional distinction between an entry or search by an individual police officer and an entry or search by several police officers. Thus, the consent granted to the hypothetical undercover officer would have covered additional backup officers without any need for additional exceptions to the warrant requirement.
On the other hand, the invitation of an informant into a house who then in turn invites the police, which are the present facts, would require an expansion of the consent exception. In this context, the person with authority to consent never consented to the entry of police into the house. Other courts have overcome this distinction by noting that a state may grant the power to arrest to the police as well as its citizens, and if the informant has the power to arrest, then an informant must be capable of summoning the police. Yoon, 398 F.3d at 810-11. This logic is unconvincing. That a citizen has the power to arrest does not grant the citizen all of the powers and obligations of the police as agents of the state. Cf. Arnsberg v. United States, 757 F.2d 971, 979 (9th Cir. 1985) (law enforcement officers have “obligations, such as the duty to execute warrants, which private citizens lack; those obligations make the law of the citizen arrests an inappropriate instrument for determining FTCA liability”); Caban v. United States, 728 F.2d 68, 73-74 (2d Cir. 1984) (immigration officers have different privileges and duties than private individuals, and therefore citizen’s arrest statute does not apply to such officers); United States v. Hillsman, 522 F.2d 454, 461 (7th Cir. 1975) (discussing the differences between a private citizen’s right to make an arrest and that of a police officer). These distinct obligations and powers must also be reflected in a distinction between inviting a citizen who may be an informant into one’s house and inviting the police into one’s house.
The officers also ask this court to adopt the “consent-once-removed” doctrine based on policy considerations. They argue that without this doctrine law enforcement will be severely hampered in its pursuit of drug traffickers because the use of informants is vital, and requiring officers to obtain a warrant whenever an informant was in a home would jeopardize personal safety and cause delays. This argument fails for two reasons. First, this contradicts the nature of the exceptions based on exigent circumstances requiring that the police may not manipulate or abuse the circumstances creating the exigency. Zogmaister, 90 Fed. Appx. at 330 (citing Aquino, 836 F.2d at 1272). Second, as recently restated by the Supreme Court in Georgia v. Randolph, “[a] generalized interest in expedient law enforcement cannot, without more, justify a warrantless search.” 126 S. Ct. 1515, 1524 n.5 (2006); Coolidge, 403 U.S. at 481 (“The warrant requirement … is not an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”)
Thus, while our case law would support a holding that the Fourth Amendment allows an undercover officer to summon backup officers within a home after that officer has been invited with consent, neither the case law nor a rational extension of the case law would support including officers summoned by an informant within a home. Based on this, we hold that entering Mr. Callahan’s home based on the invitation of an informant and without a warrant, direct consent, or other exigent circumstances, the task force officers violated Mr. Callahan’s constitutional rights under the Fourth Amendment.
Tasering a handcuffed and compliant arrestee states a claim that survives summary judgment on an excessive force claim. King v. Shoar, 2007 U.S. Dist. LEXIS 50876 (M.D. Fla. July 13, 2007).*
The jury’s verdict in an excessive force claim was not excessive, was internally consistent with the jury instructions read as a whole, and the motion for new trial was denied. The sleeping plaintiff was attacked by a police dog apparently because they wanted to issue him a traffic ticket. Rogers v. City of Kennewick, 2007 U.S. Dist. LEXIS 50882 (E.D. Wash. July 13, 2007).* The first two paragraphs describe the claim:
In the early morning hours of a midsummer’s night, Ken Rogers, a working man innocent of any wrongdoing, was lawfully sleeping in the back yard of his stepson’s home when out of the darkness and without warning, a large, vicious dog attacked him. Mr. Rogers was then beaten by unknown assailants with knees, fists, and flashlight while the dog continued to bite him. The dog was a Kennewick Police Department “bite-and-hold” K-9; the assailants were law enforcement officers of the City of Kennewick and a Benton County deputy sheriff.
This misfortune was the conclusion of a chain of events that began at about 1:00 a.m. on July 13, 2003, when Sergeant Dopke of the Kennewick Police Department activated his overhead lights and followed a man riding a miniature motor scooter without a helmet or lights for a very short distance and time to a residence where the motorist entered the garage of a home in a residential neighborhood. The garage door was shut behind him by a female resident of that home. The residents of the home described the motorist as a person named “Troy”, last name unknown, who happened to be walking by the house late that night, saw them outside, asked if he could take the scooter for a ride and was permitted to. One of the women explained that she closed the garage door because “Troy” asked her to. The two male residents denied being “Troy;” “Troy” was said to have run through the house and out the back door into the yard and then over the back fence. Though Sgt. Dopke repeatedly told the residents that he was only interested in issuing the man a traffic citation and leaving, the residents persisted in this story. He then called out a bite-and-hold K-9 that could only detect scent by air sniffing, not sniffing an object such as the miniature motor scooter or the floor of the house or the grass of the backyard. When the K-9 reacted to the area of the backyard adjacent to the yard where Mr. Rogers was then sleeping oblivious to these events, Officer Kohn, the K-9 officer, and two other law enforcement officers were directed by Sgt. Dopke to search for and apprehend “Troy”, the traffic violator. It was in following that order that Officer Kohn later unleashed the K-9 when reacting to scent in the driveway of the backyard of the house where Mr. Rogers was lawfully sleeping with the permission of the owner, his stepson. The above-described encounter followed. Much later, “Troy” was determined to have been one of the male residents of that house.
