If a business invites an employee, customer, or business associate onto its premises, has it consented to a search by government agents? Under the “consent once removed” doctrine, the answer may be yes if the invited individual is secretly working with the government and sees evidence of a crime. Although the doctrine was first used by the United States Court of Appeals for the Seventh Circuit in a case involving an undercover agent identifying heroin in an apartment, it has subsequently been extended to also cover individuals cooperating with the government. It has also been used in cases involving regulatory crimes such as possession of eagle feathers and breeding golden retrievers without a license. Accordingly, all businesses may have reason to be concerned that anyone invited onto the premises could be working with the government to identify regulatory offenses and therefore allowing police to immediately conduct a search without a warrant.
In a recent opinion involving a search for drugs in a garage, however, the Seventh Circuit eliminated the consent once removed doctrine it had created. The basis of the doctrine was the conceit that if a person working with the government had been given permission to enter a location, the government could be deemed to have received the same permission. The doctrine had been criticized for, among other reasons, being contrary to the public understanding of consent. After all, as Judge Posner noted in his opinion while calling the doctrine “at first glance . . . absurd,” inviting a friend to a party does not give that friend permission to bring along anyone else he chooses. The Seventh Circuit ultimately determined that all of its previous applications of the doctrine were equally well supported by other exceptions to the general warrant requirement, and held that the doctrine did not exist.
In the three states within the Seventh Circuit, then, business and individuals have less cause to fear that inviting employees and customers onto their premises will effectively consent to a warrantless search, but the doctrine remains potentially good law in states within other federal circuits. The Sixth Circuit, for example, has applied the doctrine in several cases and, as noted above, considered whether it might apply (before rejecting application on narrow factual grounds) when a sheriff’s deputy investigated the potential unlicensed breeding of dogs. The Seventh Circuit’s decision creates a circuit split with at least two other federal courts of appeals, and with it, the potential for Supreme Court review.