Choose Wisely

Unlike the good prof at CrimProf Blog, United States v. Yoon (CA6) (applying the consent once removed doctrine to confidential informants) does not trouble me.  In Yoon the panel wrote:

In Pollard, we held that when one invites an undercover agent and an informant into his residence, the agent or informant can summon back-up officers for assistance, and that these back-up officers are acting within their constitutional limits when they enter since no further invasion of privacy is involved once the undercover officer and informant make the initial consensual entry. Today, we extend that concept to cases in which a confidential informant enters a residence alone, observes contraband in plain view, and immediately summons government agents to effectuate the arrest.

The courts tell us to choose our friends wisely.  Cf. Maryland v. Pringle (If you ride in a car with dope dealers, you might get arrested).  Since the Constitution does not apply to private actors, we can exclude people - rationally or not - from our homes.  When we invite people into our homes, with drugs in plain view, aren't we surrending our right to privacy? 

Imagine a person saying that his right to privacy was violated when a guest saw sex toys sitting on the coffee table.  Could the person really expect the guest not to see the toys?  If you come over to my place (which is unlikely since I am extremely private and hermit-like), you'll see a small humidor and the latest issue of Cigar Aficionado.  I can't take offense when a guest learns that I smoke cigars.

It would be a different case if the informant had went into Yoon's bedroom, snooped in his cupboards, or otherwise exceeded the behavior we expect of guests.  If I invite you into my living room, you can't look around my bedroom.  But in Yoon, the informant saw the marijuana on the coffee table.

Why should Yoon bother me?  What am I missing?

Comments

[Mahan Atma]

It seems to me that the "consent once removed" concept is just plain bogus.

I understand the concept of consent when you're inviting the police into your home. But I have a right to invite some people into my home, while keeping others out. I can consent to having my friend enter, while denying entry to the police.

I simply cannot see how inviting in my friend (who isn't even a police officer) can be translated into giving consent to the police to enter.

[Three Generations]

I'm afraid I'm going to have to disagree with you. I, too, share CrimProf's reservations about this decision and I agree with the dissent.

To address your question, "why should Yoon bother you", I point to two things:

First, as the dissent points out, the majority is removing the need for obtaining a warrant. It states that there were no exigent circumstances that required a warrantless entry. While it may only be a logistical issue, I think it is certainly an important one. We do not want the police "creating" exigent circumstances to circumvent the warrant requirement when probable cause has been established.

The other is a combination of things: extenstion of the once-removed doctrine to informants (civilians) and the implied granting of police powers to civilians. Were it not an informant, but an undercover officer, there wouldn't be a problem. Also, I seriously doubt the "consent" here. Were I to invite a friend over (for whatever reason, legal or illegal), I am in no way consenting to the subsequent entry of police officers into my home. If my "friend" turns out to be an informant, they can go get a warrant.

I'm not sure if that's good enough to answer your question, but I tried :)