United States of America, Plaintiff-appellee, v. Min Yoon, Defendant-appellant, 398 F.3d 802 (6th Cir. 2005)

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation

This doctrine does not permit the officers who enter a suspect's home to conduct a general search of the home. Rather, it provides that once an undercover agent or informant establishes probable cause to arrest or to search (i.e., probable cause to obtain a search warrant) then the undercover officer or informant in the suspect's home may summon other officers to assist in effectuating the arrest. As the doctrine is based upon consent to enter one's home (and not consent to search), the area in the suspect's home that the officers are entitled to be in is limited by the scope of the consent originally given to the undercover officer or informant. United States v. Bramble, 103 F.3d 1475, 1478(9th Cir. 1996). The officers may of course seize anything in plain view and are entitled to conduct a protective sweep, but they may not conduct a general search without "first satisfying the ordinary requirements of consent, a warrant, or exigent circumstances which excuse the failure to obtain a warrant." Id. at 1478-79.

Tennessee is one of those states that has granted the arrest power to its citizens. Tenn.Code Ann. § 40-7-109(a) (3) (2004) ("A private person may arrest another ... [w]hen a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed it."). Thus, Kim could have made the arrest himself had he chosen to do so. Instead, he called officers to assist him, a permissable choice Pollard, 215 F.3d at 648.

In any event, the defendant's actions in "outing" a government witness/co-defendant via the internet would be just the type of conduct warranting the obstruction of justice enhancement. USSG § 3C1.1, comment.(n.4(a))

In fact, in Pollard, Judge Nathaniel Jones dissented from this Court's adoption of the "consent once removed" doctrine on the ground that it constituted an "unjustified extension of our traditional exigent circumstances jurisprudence." 215 F.3d 643, 649 (6th Cir. 2000).

Although the doctrine is not based upon either the exigent circumstances or the traditional consent exception, one could characterize the conceptual foundation of the doctrine as based upon a combination of a sort of "quasi exigent circumstances and consent." For instance, in Bramble, the court concluded that the warrantless entry of the additional officers into the suspect's home did not violate the Fourth Amendment since the suspect had a diminished expectation of privacy as he had already invited an undercover agent into his home (consent), and, in any event, the court continued, "any remaining expectation of privacy was outweighed by the legitimate concern for the safety of the officers inside" (exigent circumstances). 103 F.3d at 1478.

Although police officers cannot create exigent circumstances to justify their entry into a suspects home,see Williams, 354 F.3d 497, 504 (6th Cir. 2003), if an undercover agent or informant in a suspect's home were to find herself to be in danger due to circumstances that she neither created nor which she could have readily averted, then the subsequent entry of officers to aid her would be supported by exigent circumstances.

The ability of officers to seize evidence in plain view does not justify the entry of back-up officers into the suspect's home. Neither does the theory of collective knowledge justify it. The fact that we can impute the knowledge of the officer inside the suspect's home to the back-up officers does not entitle the back-up officers to enter. If these powers were the pillars upon which the doctrine rested, then Pollard would have been decided incorrectly.

The dissents chastisement that we are "deputizing the lawless" evidences a misunderstanding as to the basis of the doctrine. Since the doctrine is not based on police powers, as explained in footnote 4,supra, no police powers are "entrusted" to the informants. If any police power were necessary to support this doctrine, it would be the arrest power, a power which has been granted to the citizens of Tennessee, including to those without a spotless past.