Consent once removed. (Legal Digest).

This article addresses the "consent once removed" exception to the search warrant requirement. Under that exception, officers are permitted to make a warrantless entry to arrest a suspect based on the consent to enter given earlier to an undercover officer or informant. Knowledge of the law of arrest and search is important to understanding the doctrine of consent once removed. This article provides a brief review of those areas before explaining consent once removed.

Review of Arrest Law

It is constitutional for a police officer to arrest a suspect in a public place without a warrant if the officer has probable cause to believe the arrestee has committed a crime, regardless of whether that crime is a felony or a misdemeanor. The common law rule, however, followed in many state and federal statutes, limits the authority of an officer to make a misdemeanor arrest without a warrant to circumstances when the suspect commits the misdemeanor in the officer's presence. (2) Under the Fourth Amendment, a person could be arrested without a warrant for a minor offense that is neither violent nor a breach of the peace. (3) While a search without a warrant is presumed unreasonable, there is no presumption of unreasonableness that attaches to a warrantless public arrest. Consequently, it is not constitutionally required that an officer be faced with an emergency or to obtain consent before making a public arrest without a warrant. (4)

Arresting a person in public is one thing, entering his home to arrest him is quite another. When an officer enters a subject's home and arrests him, not only has the officer seized the subject but, by entering the home, the officer also has conducted a Fourth Amendment search of the home. If officers have an arrest warrant, they may enter a suspect's residence to arrest him if they have probable cause to believe he is home. Even though an arrest warrant is a seizure warrant and not a search warrant, the U.S. Supreme Court has ruled that an arrest warrant carries with it the implicit authority to enter the residence of the person named in the warrant to search for him, provided that there is at least probable cause to believe that he is present in his home. (5) Where the person named in an arrest warrant is believed to be in a third party's home, however, an arrest warrant alone will not suffice to enter the third party's home to arrest the suspect. An officer must obtain a search warrant before entering the third party's home, unless there is an emergency or the resident gives consent to search. (6)

Review of Search Law

A search conducted under the authority of a search warrant is presumed reasonable, whereas a search conducted without a search warrant is presumed unreasonable. (7) The presumption of unreasonableness for searches conducted without a warrant can be rebutted through one of the exceptions to the warrant requirement, such as consent or emergency. The emergency exceptions applicable to building searches fall into closely circumscribed categories: 1) prevent escape; (8) 2) prevent harm to officers or others; (9) 3) render immediate aid; (10) 4) prevent the destruction of evidence; (11) or 5) hot pursuit. (12) Once the emergency that justified the warrantless entry has passed, the authority to search without a warrant ends. If the police desire to continue to search the premises, they may secure the area and seek a search warrant.

Consent Once Removed

Ordinarily, officers cannot enter premises without a warrant unless they have consent or there is an emergency. (13) The consent once removed doctrine is an extension of the consent exception to the search warrant requirement. In circumstances when officers do not have a warrant and are not faced with an emergency, they still will be able to conduct a search if they obtain voluntary consent to search from someone who has actual or apparent dominion and control over the premises. (14) An officer who is working in an undercover capacity can use deception to obtain valid consent to enter premises. (15) Once an undercover officer obtains the initial consent to enter, that consent can be transferred to officers who later enter the premises to arrest the suspects.

Under the doctrine of consent once removed, officers without a search warrant or an emergency may enter a residence that the undercover agent or informant has recently entered if "[t]he undercover agent or informant: 1) entered at the expressed invitation of someone with authority to consent; 2) at that point established the existence of probable cause to effectuate an arrest or search; and 3) immediately summoned help from other officers." (16) There is no requirement that the person obtaining the original consent be an officer of the law. The person obtaining consent could be an informant. (17) Of course, the original consent must be valid to support the second entry by the arrest team. (18)

In United States v. Bramble, (19) undercover federal agents entered the home of a suspect to negotiate the purchase of sea otter pelts advertised for sale. During negotiations, the suspect showed the agents parts of a bald eagle, a golden eagle, a homed owl, and a red-tailed hawk, all of which are unlawful to possess. One of the agents also noticed what appeared to be a vial of cocaine on the dining room table. After seeing the illegal bird parts and the suspected cocaine, the undercover agents identified themselves and told the suspect that he was going to be placed under arrest. The agents then called for backup officers to enter the home. The U.S. Court of Appeals for the Ninth Circuit ruled that once the suspect had given consent to the undercover agents to enter his home, he lost any expectation of privacy in the area to which he invited them. The backup officers could then enter the home upon the authority of the original consent given to the undercover agents. The entry of additional officers did not i nfringe upon the consenter's expectation of privacy.

It is dangerous, particularly in drug cases, for an undercover officer to notify a suspect that he is an undercover officer and then tell the suspect that he is under arrest, as was done in Bramble. The safest tactic would be to have the undercover officer leave the premises before the arrest team enters to make the arrest. 1f for some reason, it is necessary for the undercover officer to remain inside the premises, the undercover officer should not arrest the suspect. It would be safer for him to remain in his undercover role and surreptitiously signal backup officers to enter and make the arrest. The consent once removed doctrine would apply to the entry by the arrest team in such a case. For example, in United States v. Pollard, (20) an informant and an undercover officer entered a residence to purchase 4 kilograms of cocaine. Upon seeing the cocaine in the apartment the informant gave the arrest signal. In response to the arrest signal, approximately six officers, without knocking or announcing, immediate ly broke down the front door and arrested the defendants. The U.S. Court of Appeals for the Sixth Circuit ruled that the entry by the backup officers to arrest the defendants was lawful under the consent once removed doctrine. The court found that once the defendants gave the undercover officer and the informant permission to enter, the entry by the arrest team did not create any further invasion of privacy.

Under the consent once removed doctrine, the lawfulness of the second entry by the arrest team is based upon the initial consent given to the undercover officer. Therefore, because the entry team could force their entry into the premises, it certainly would be permissible for the entry team to use a ruse to enhance the safety of the second entry. For example, in United States v. Samet, (21) an undercover officer gave a prearranged arrest signal from inside the defendant's apartment after he made a purchase of 277 grams of cocaine. Upon receiving the arrest signal, the entry team rushed into the defendant's apartment and announced that they had a search warrant. In fact, the officers did not possess a search warrant. The U.S. District Court for the Eastern District of Virginia ruled that because the officers were relying upon the original consent to enter given by the defendant to the undercover officer, the false statement of an officer that the arrest team had a search warrant did not render illegal the othe rwise legal entry.

No Emergency Required

Once an informant or undercover agent obtains consent to enter a residence, there is no requirement that there be an emergency for officers to follow the informant or undercover agent into the home without a warrant. All that is needed is the original voluntary consent, probable cause to arrest, and the informant or undercover agent immediately summoning the officers to arrest the defendant. (22)

In United States v. Jachimko, (23) DEA agents sent an informant, equipped with a recorder and an agent-alert device, into a suspect's home. The agents instructed the informant to activate the alert button only if he saw more than 100 marijuana plants. As is usual in drug cases, events took a turn toward the unexpected. After the informant entered the suspect's home, he and the suspect left the suspect's home and drove to the house of another individual named Jachimko. Up to that time, DEA did not have any suspicion that Jachimko was involved in illegal drug activity, nor did they suspect that there was marijuana inside his house. Twenty minutes after entering Jachimko's house, the in-formant activated the agent-alert button. The DEA agents responded by knocking on the side door to Jachimko's home; Jachimko opened the door, but tried to close it when the agents identified themselves. A scuffle ensued, and Jachimko and the other suspect were arrested. In addition, several marijuana plants were seized.

In Jachimko, the government did not argue that the second entry by the officers into Jachimko's residence was justified by an emergency, but, rather, that it was justified by the original consent given to the informant. The U.S. Court of Appeals for the Seventh Circuit agreed with the government and ruled that the second entry was authorized by the initial consent given to the informant. (24) The defendant argued that he withdrew his consent when he refused to allow the officers to enter after they identified themselves. The court, however, ruled that once the contraband was discovered by the informant, it was too late for Jachimko to withdraw his consent.

Jachimko further argued that the consent obtained by the informant to enter was ineffectual because there was no preexisting DEA investigation on him, nor was there probable cause for a search when he gave the informant consent to enter his residence. The court ruled that there is no legal requirement that there be an investigation before a suspect can give valid consent and, further, that it is not required that there be probable cause before consent may be obtained. (25) The only requirement for valid consent is that a person with actual or apparent authority give voluntary consent. The fact that the informant misrepresented his purposes for entering the premises did not render the consent given to the informant involuntary.

The consent once removed doctrine is particularly helpful in reverse drug operations. In a reverse drug transaction, the undercover officer acts as the seller of the drugs. The suspect, being the purchaser of the drugs, is expected to bring the money. The suspect ordinarily would not be expected to attempt to destroy money if he believed that he was the object of a police sting. A second entry, therefore, could not, be based upon the fear that the suspect would destroy the evidence. The entry of the arrest team, however, could be based upon the consent given earlier to the undercover officer. (26)

Undercover Officer Leaves and Promises to Return

It is tactically more sound to arrange ahead of time to have the undercover officer who is acting as the purchaser of illegal drugs leave the premises after he sees that the suspects possess the illegal drugs. It is much more dangerous for the undercover officer to stay in the residence when the arrest team makes its entry to arrest the suspects. The suspects likely will become immediately aware that the cause for the unwelcome entry of the police is probably the undercover officer. The consent once removed doctrine requires that once the undercover officer or informant establishes probable cause to arrest he must immediately summon help from the other officers. Most courts permit the undercover officer to leave the residence to summon assistance from the other officers. If the undercover officer makes an arrangement with the suspect that he will leave the residence to obtain money or some other item to complete the illegal transaction, the undercover officer could then leave the residence and lawfully reente r with several backup officers. The legality of the officers' reentry would be based on the original consent of the resident and his expectation that the undercover officer would return.

For example, in United States v. White, (27) an undercover officer and an informant arrived at an apartment to purchase illegal drugs from suspected drug traffickers. The informant exited the suspects' apartment, purportedly to obtain money to complete the illegal drug transaction. The informant was accompanied by one of the suspects who locked the door behind him with a key. The undercover officer remained in the apartment with another suspect. Upon arriving at the informant's automobile, ostensibly to obtain money for the drug transaction, the accomplice was arrested. The keys found on the accomplice were used by the backup officers to enter the apartment and arrest the other suspect. The court expressly refused to consider whether the second entry justified the potential harm to the undercover officer, who remained in the apartment, because the court found that the second entry was authorized by the initial consent given to the undercover officer and the informant to enter the apartment.

In White, the undercover officer remained in the apartment. It is not required, however, that an undercover officer remain behind on the premises after an informant leaves to have the benefits of the consent once removed exception. That is because the consent once removed doctrine is not based upon an emergency concern for the safety of the undercover officer or informant; rather, it is founded on the premise that the initial consent given by the suspect to an undercover officer or informant can be transferred to the arrest team, justifying their second entry.

In United States v. Diaz, (28) an undercover officer entered the suspect's hotel room to negotiate the purchase of the 8 kilograms of cocaine. Once in the apartment, the undercover officer was shown the 9 kilograms of cocaine. Upon seeing the cocaine, the undercover officer told the suspect that he would go to the lobby and call his "money man, who would arrive in approximately 30 minutes. The suspect told the undercover officer that he would wait in the room for him. The undercover officer exited the hotel room and gave the prearranged signal to the surveillance team that had gathered in an adjacent hotel room. Minutes later, the undercover officer, accompanied by the surveillance team, knocked on the suspect's door, and, when the suspect answered the door, he told the suspect he had forgotten his keys and coat. The arrest team then immediately pushed past the undercover officer and arrested the suspect and seized the drugs.

In Diaz, the U.S. Court of Appeals for the Seventh Circuit felt that the officers had plenty of time to obtain a search warrant before entering the hotel room. Furthermore, the court did not find that there was any emergency that would justify entry without a search warrant. The court stated that simply because there is probable cause to believe a serious crime is being committed or that there is the mere possibility that evidence could be destroyed does not mean there is an emergency that would justify entry without a warrant. While the court found that entry was not justified by an emergency, it ruled that, instead, the entry was justified based upon the initial consent given to the undercover officer to enter. The consent given to the first entry was not broken by the undercover officer's brief exit to obtain assistance to arrest the suspect. The court opined that based on the evidence the suspect would have likely admitted the undercover agent back into the hotel room and the fact that the agent was assisted by other law enforcement officers did not make a difference.

It is not required that the undercover officer actually return with the arrest team for the consent given to him to be transferred to the arrest team. For example, in United States v. Santiago, (29) an informant went inside a suspect's apartment purportedly to buy a kilogram of cocaine. Upon examining the cocaine package, the informant told the suspects that he needed to leave to retrieve the money for the purchase of the cocaine from his "moneyman." The informant then went out to his car and informed the federal agents on the arrest team about his observations. Approximately 15 minutes later, the arrest team, unaccompanied by the informant, used a battering ram to enter the apartment without a search or arrest warrant. The agents arrested the suspects, who gave the agents consent to search the apartment. Upon searching the apartment, the agents found and seized the kilogram of cocaine that the informant had previously examined. The suspects moved to suppress the evidence by contending that their Fourth Amend ment rights were violated when the federal agents entered their home without a warrant, their voluntary consent, or exigent circumstances. The court found that there was no emergency that justified an immediate entry without a warrant. The court ruled, however, that the second entry by the arrest team was justified by the earlier consent to enter obtained by the informant. The Santiago court decided that the 15-minute delay in the entry of the arrest team was not too long to put it outside the immediacy requirement of the consent once removed doctrine: (30)

The facts suggest that the [informant] and federal agents acted diligently in effecting the arrests and seizing the contraband. As described by the government prosecutor and agreed to by the defendants in open court, the length of time that elapsed was that necessary for the [informant] to return to his car and summon assistance and for the agents to gather in the parking lot, proceed up to the apartment, and enter using the battering ram. Their actions after the [informant] established probable cause essentially constituted an unbroken chain of events, and the arrests were executed without interruption or significant loss of time. (31)

Undercover Officer Not Expected To Return

Most courts do not require that the undercover officer create an expectation that he will return for the arrest team to reenter on the authority of the original consent given to the undercover officer. For example, in United States v. McDonald, (32) an undercover agent with the New York Drug Enforcement Task Force was admitted to a one-room efficiency apartment on the first floor of an apartment building shortly before 10 p.m. on September 8, 1988. The agent encountered a suspect sitting in a chair pointing a cocked 9-mm semiautomatic pistol at the floor but in his direction. Another suspect, Errol McDonald, was sitting on a couch counting a stack of money within easy reach of a .357-magnum revolver. There were four other men in the apartment. The agent bought a small amount of marijuana and left the building. Shortly thereafter, the agent returned to the apartment with reinforcements and knocked on the door. As soon as the agents identified themselves, they heard the sound of scuffling feet and received simu ltaneous radio communication from the perimeter team informing them that the occupants were attempting to escape through a bathroom window. The agents then used a battering ram to enter the apartment. The agents arrested the suspects and found large quantities of cocaine and marijuana along with two loaded weapons, drug paraphernalia, drug packaging materials, and several thousand dollars in cash.

In an opinion of the full bench of the U.S. Court of Appeals for the Second Circuit, the McDonald court ruled: [T]here is no doubt that the agent who made the undercover purchase would have been entitled to arrest the suspects in the apartment at the time of the purchase. A controlled purchase of narcotics by an undercover law enforcement agent 'is a recognized and permissible means of investigation' employed to gather evidence of illegal conduct and to make lawful arrests.... It follows that the undercover agent here did not need a warrant to reenter the apartment within 10 minutes, having exited only to secure proper protection by obtaining reinforcements. This is not the kind of scenario that needs the detached judgment of a neutral magistrate to determine whether there is probable cause for an arrest and search. (33)

That same reasoning was apparent in State v. Henry. (34) In Henry, an undercover officer made a purchase of crack cocaine from suspects inside an apartment. The undercover officer exited the apartment and informed the waiting arrest team what had taken place. Approximately 15 to 20 minutes later, the backup detectives knocked on the door of the apartment. As soon as the door was opened, the officers announced themselves and one of the suspects fled into a bedroom, with two of the detectives in pursuit. The suspects were arrested and the illegal drugs were found on the suspects during a search incident to arrest. The Supreme Court of New Jersey ruled that once the undercover detective observed the commission of a crime in his presence, he had both statutory and common law authority to arrest the defendant on the spot. The defendant contended that once the undercover officer left the apartment without making an arrest, he easily could have obtained an arrest warrant and therefore, was constitutionally obligated to do so. The Henry court disagreed with the defendant and stated that it does not follow that an otherwise legal warrantless arrest becomes illegal simply because the officers could have, but did not, obtain an arrest warrant. (35)

The more significant issue in Henry was not the warrantless arrest of the suspects but the warrantless entry of the apartment by the arrest team. The court ruled that the second entry into the apartment by the police to effectuate the arrest was reasonable because the undercover officer was earlier given consent to enter, and the probable cause that the undercover officer had to arrest the suspects had not dissipated in the short 15 to 20 minutes between the time he left and the second entry by the arrest team. The court concluded that there was no need for the officers to seek the detached review of a magistrate before entering the apartment to arrest the suspects. The court summarized the basis for its ruling thusly:

Here, the separate entries can be viewed as components of a single, continuous, and integrated police action and were not interrupted or separated by an unduly prolonged delay ... ultimately we are convinced of the reasonableness of the warrantless entry in light of all the circumstances surrounding the entry. Those circumstances include the consensual basis for the initial entry, probable cause for an immediate arrest arising out of that entry, the short amount of time and continuity between the two entries, and the legitimate grounds for delaying the initial arrest until backup officers could arrive. (36)

Scope of Consent

When making an entry under the consent once removed doctrine, the backup officers are restricted to the scope of the consent originally granted to the undercover officer or informant. (37) The backup officers are not authorized under this doctrine to go beyond those areas that the suspect gave consent to the undercover officer to enter. (38) To expand the search area beyond the original consent given to the undercover officer, the officers must obtain a search warrant, obtain new expanded consent from the resident, or apply one of the other exceptions to the search warrant requirement. For example, when placing someone under arrest the officers could search the subject and the immediate area surrounding that subject incident to arrest. The justification for the search would not be the consent given by the suspect to the undercover officer during the original entry, but, rather, the search incident to arrest exception to the search warrant requirement. (39)

Conclusion

Officers may, without a search warrant or an emergency, enter the premises of a suspect if: 1) an informant or undercover officer has previously entered at the invitation of someone with authority to give consent; 2) the informant or undercover officer establishes probable cause to arrest or search while inside the premises; or 3) the informant or undercover officer immediately summons help from the other officers. This doctrine, commonly referred to as "consent once removed," allows officers to rely on the authority of the original consent given to the undercover officer as justification to make the second entry.

Endnotes

(1.) See Street v. Surdyka, 492 F.2d 368, 371-72 (4th Cir. 1974); Minnesota v. Seefeldt, 292 N.W. 2d 558 (Minn. 1980).

(2.) E.g., 21 U.S.C. [section] 878 (1970).

(3.) Atwater v. City of Lago Vista, 532 U.S. 318 (2001).

(4.) United States v. Watson, 423 U.S. 411 (1976).

(5.) Payton v. New York, 445 U.S. 573 (1980).

(6.) Steagald v. United States, 451 U.S. 204, 215-16 (1981).

(7.) Katz v. United States, 389 U.S. 347, 357 (1967).

(8.) Minnesota v. Olson, 495 U.S. 91 (1990).

(9.) Warden v. Hayden, 387 U.S. 294, 298-99 (1967); Hancock v. Dodson, 958 F.2d 1367, 1375 (6th Cir. 1992) (court approved of police entering residence after being called to scene where gunshots were fired).

(10.) Mincey v. Arizona, 437 U.S. 385, 393 (1978); Thompson v. Louisiana, 469 U.S. 17 (1984); Minnesota v. Olson, 495 U.S. 91, 100 (1990); United States v. Mayes, 670 F.2d 126 (9th Cir. 1982) (A military corpsman was justified in entering the suspect's apartment to retrieve the object found in a child's throat so that the doctor could decide the proper medical procedure in giving aid to the child. The fact that the doctor also suspected criminal activity did not detract from the emergency need to preserve life.).

(11.) United States v. Santana, 427 U.S. 38 (1976).

(12.) Id.

(13.) Oftentimes in drug cases, there is an emergency after making a controlled purchase of drugs. Some courts allow officers to reenter a residence without a warrant, based on the emergency; they do not base their decision on the initial consent given to the undercover officers. Those courts reason that once the illegal drug transaction begins to unfold any delay in obtaining a warrant would permit the destruction of evidence, the escape of suspects, or increase the danger to officers or others. See United States v. Harris, 713 F.2d 623 (11th Cir. 1983); United States v, Bradley, 455 F.2d 1181 (1st Cir. 1972).

(14.) Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The burden of proving the voluntariness of consent rests with the government. Bumper v, North Carolina, 391 U.S. 543 (1968). The voluntariness of the consent must be established by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164 (1974); United States v. Drayton, __ U.S.__, 2002 WL 1305729 (2002) (It is not necessary that the suspect receive a warning from an officer that he has a right to refuse to give consent for his consent to be voluntary.) The suspect's knowledge of his right to refuse consent is only one factor for a court to consider when deciding whether, under the totality of the circumstances, the consent was voluntary. Schneckloth, 412 U.S. 218 (1973).

(15.) Lewis v. United States, 385 U.S. 206, 211(1966) ("[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials.").

(16.) United States v. Pollard, 215 F.3d 643, 648 (6th Cir. 2000); See also United States v. Diaz, 814 F.2d 454 (7th Cir. 1987). See generally United States v. Rubio, 727 F.2d 786 (9th Cir. 1983); United States v. Janik, 723 F.2d 537 (7th Cir.1983).

(17.) United States v. Jachimko, 19 F.3d 296, 299 (7th Cir. 1994).

(18.) See People v. Finley, 687 N.E.2d 154 (Ill. App. 1997) ("Assuming, arguendo, that the "consent once removed" doctrine is applicable to the case at bar, we would conclude, nonetheless, that the State failed to meet the criteria of the doctrine. At best, the record suggests that defendant did not expressly invite Adams to his trailer for the purpose of conducting a drug transaction. Defendant had no previous arrangements with Adams regarding any drug buys. Defendant was highly intoxicated at the time, vitiating any alleged consent given to Adams. Secondly, Adams, in his initial entry, did not establish probable cause to believe that cocaine was located inside the trailer. Defendant did not display any cocaine to Adams, nor did defendant arrange to make a future sale to Adams. Having failed to meet two out of the three elements, a warrant-less search of defendant's trailer could not be sustained under this doctrine.").

(19.) 103 F.3d 1475 (9th Cir. 1996).

(20.) 215 F.3d 643 (6th Cir. 2000).

(21.) 794 F. Supp. 178 (E.D. Va. 1982).

(22.) In State v. Johnston, 518 N.W.2d 759 (Wis. 1994), the Supreme Court of Wisconsin found that it was confusing and unnecessary to resort to the doctrine of consent once removed. The court reasoned that if an officer has probable cause to arrest a suspect he may summon backup officers to enter premises without a warrant to assist him. The court further ruled that "there is no rule that back-up or assistance may be had only when there are exigent circumstances. Time does not need to be 'of the essence' and the officers certainly do not need to be in an emergency or in mortal danger before we will allow back-up and assistance." Id. at 766. See also United States v. Ryles, 451 F.2d 190 (3rd Cir. 1971), wherein the informant exited the defendant's apartment after witnessing the defendant mixing narcotics on the kitchen table. The informant signaled officers waiting outside, who immediately entered and arrested the defendant. The Ryles court ruled that the trial court properly denied the defendant's motion to s uppress. No mention was made in the case of the doctrine of consent once removed. The Ryles court instead based its decision on the reasoning in the U.S. Supreme Court case of Lewis v. United States, 385 U.S. 206, 211(1966), which it quoted: "when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street." Id at 191.

(23.) 19 F.3d 296 (7th Cir. 1994). See also United States v. Paul, 808 F.2d 645 (7th Cir. 1986) (informant signaled for assistance from federal agents by using an electronic device from inside the residence).

(24.) See also United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995).

(25.) 19 F.3d 296, 299.

(26.) See, e.g., United States v. Jones, 1995 WL 443929 (N.D. Ill. 1995) ("The charges against Jones resulted from a 'reverse buy' undercover DEA investigation. Through a cooperating individual and his girlfriend, a cocaine deal was arranged whereby Jones agreed to pay $60,000 for two kilograms of cocaine. At Jones' instruction, the transaction was to be carried out at his father's house. When the cooperating girlfriend arrived, Jones placed a bag containing $60,000 in front of her, signalling his willingness to complete the transaction. The girlfriend then left the house for the purported purpose of retrieving the cocaine. An arrest signal was given and DEA agents who were waiting outside entered the house." The Jones court ruled that the entry by the agents was lawful under the consent once removed doctrine.). But see United States v. Ogbuh, 982 F.2d 1000, 1004-05 (6th Cir. 1993). In Ogbuh, a suspect was stopped by DEA agents and found to possess approximately 51.73 grams of heroin. The suspect decided to c ooperate with DEA and make a controlled delivery of the heroin. The agents replaced most of the heroin with sham and had the suspect, who was now acting as a DEA informant, make a controlled delivery of the package to his accomplices in a hotel room. Within a minute of the informant's entry into the hotel room, the arrest team forcibly entered the room. By the time the agents entered, one suspect and the informant had already flushed the sham/drug mixture down the toilet. The court ruled that the entry was not justified under the emergency exception and, because the informant did not summon the officers, the second entry could not be based upon the consent to enter given to the informant. The U.S. Court of Appeals for the Sixth Circuit adopted the consent once removed doctrine in United States v. Pollard, 215 F.3d 643, 648 (6th Cir. 2000). The Pollard court cited, but did not overrule Ogbuh.

(27.) 660 F.2d 1178 (7th Cir. 1981).

(28.) 814 F.2d 454 (7th Cir. 1987). See also Lawrence v. State, 388 So.2d 1250, 1253 (Fla. Dist. Ct. App. 1980), aff'd sub nom. Griffin v. State, 419 So.2d 320 (1982).

(29.) 1993 WL 75140 (N.D. Ill. 1993).

(30.) Contra United States v. Herrera-Corral, 2002 WL 69491 (N.D. Ill. 2002) (The informant saw cocaine in an apartment as he negotiated for the purchase of the cocaine. The informant exited the apartment and told the waiting arrest team what he saw. The informant drove away, and, within 2 minutes after the informant exited the apartment, the arrest team forced entry into the apartment and arrested the defendant. The court ruled that the consent once removed doctrine was inapplicable because the entry of the arrest team was not immediate. The Herrera-Corral court disagreed with the Santiago court that the 15-minute delay between the exit of the informant and the second entry by the arrest team in the Santiago case constituted an immediate entry. The Herrera-Corral court further questioned whether simply telling the agents what he saw inside the apartment was sufficient to constitute "summoning" the agents as required by the consent once removed doctrine.).

(31.) Id.

(32.) 916 F.2d 766 (2d Cir. 1990) (en banc), cert. denied, 498 U.S. 1119 (1991).

(33.) Id. at 771 (citing Arkansas v. Sanders, 442 U.S. 753, 759 (1979); United States v. Russell, 411 U.S. 423, 432 (1973); United States v. Asencio, 873 F.2d 639, 641 (2d Cir. 1989)). The McDonald court further ruled that the agents did not impermissibly create an emergency by knocking and announcing their presence because it was lawful for the police to do that. The court gave yet another basis that the entry was lawful by stating that, regardless of the announcement by the officers at the door, they were faced with an emergency as soon as the undercover agent made the drug purchase. "First, the ongoing sale and distribution of narcotics constituted a grave offense. Second, the defendant and at least one of his associates were armed with loaded, semi-automatic weapons. Third, the law enforcement agents had not only probable cause to suspect that a crime had been perpetrated but firsthand knowledge that ongoing crimes were transpiring. Fourth, the agents further knew that the defendant and his associates wer e in the apartment. Fifth, the likelihood that a suspect might escape if not swiftly apprehended was confirmed by the fact that the man who actually made the sale to Agent Agee had apparently escaped during the 10-minute interval that elapsed after the controlled purchase and before the agents entered the apartment. Sixth, the agents acted in accordance with the law, and first attempted to effect a peaceful entry by knocking and announcing themselves." 916 F.2d at 770 (quoting Warden v. Hayden, 387 U.S. 294, 298 (1967), and McDonald v. United States, 335 U.S. 451, 456 (1948)). The McDonald court listed two other considerations as relevant to its decision. "[T]he volatile mix of drug sales, loaded weapons and likely drug abuse presented a clear and immediate danger to the law enforcement agents and the public at large.... In addition,...the agents were confronted by an urgent need to prevent the possible loss of evidence...." Id. at 770. See also Minnesota v. Olson, 495 U.S. 91, 100 (1990), wherein the U.S. Supreme Court cited with approval the Minnesota Supreme Court's position that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered.

(34.) 627 A.2d 125 (N.J. 1993). See also Commonwealth v. Moye, 586 A.2d 406 (Pa. Super. Ct. 1990) (reentry with arrest team after undercover drug buy was justified under the consent once removed doctrine); State v. Contrell, 426 So.2d 1035 (Fla. App. 1983) (valid application of consent once removed doctrine where undercover officer leaves premises after a drug purchase and he signals the arrest team who reenter the premises).

(35.) Id. at 128. See also United States v. Watson, 423 U.S. 411, 417-18(1976) ("the Court 'has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant'") (quoting Gerstein v. Pugh, 420 U.S. 103, 113 (1975)); State v. Doyle, 42 N.J. 334, 345- 46, 200 A.2d 606 (1964) ("If the arrest without a warrant is lawful, the search and seizure are not invalidated solely because the officers had adequate time to procure a search or arrest warrant.").

(36.) Id. at 131-32.

(37.) See generally Gouled v. United States, 255 U.S. 298 (1921) (government informant obtained consent to enter the suspect's office by representing to the suspect that he intended to pay a social visit, but he exceeded the scope of the consent to enter and visit when he ransacked the office in the suspect's absence).

(38.) United States v. Bramble, 103 F.3d 1475 (9th Cir. 1996).

(39.) Chimel v. California, 395 U.S. 752, 763 (1969). The U. S. Supreme Court has ruled that "[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." United States v. Robinson, 414 U.S. 218 (1973). Police have the automatic authority to search a person incident to a lawful arrest and need not establish the probability that weapons or evidence would be found prior to instituting the search. Id. at 236. An officer may perform a search of the person and may open any object found during such a search. Chimel, 395 U.S. 752, 763. "While the legal arrest of a person should not destroy the privacy of his premises, it does--for at least a reasonable time and to a reasonable extent--take his own privacy out of protection from police interest in weapons, means of escape, and evidence." United States v. Edwards, 415 U.S. 800, 808 (1974). The Supreme Court has limited the spatial scope of a search incident to arrest. A search incident to arrest must be confined to the area within the immediate control of the arrestee. Chimel, 395 U.S. at 763. The Court reasoned that the search must be confined to that area within which the arrestee could gain possession of a weapon or destroy evidence. Id.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.