Officer Robert M. Bauer, a Fairfax County Virginia police officer, investigated a complaint that a vehicle later determined to belong to Dr. Rose Merchant had forced another car off the freeway and that Merchant’s vehicle had blue flashing lights. Bauer made plans to meet Merchant and her husband. It was determined that her husband had the car during the time in question but their was no proof the car had blue flashing lights or that such lights had at some point been removed from the vehicle. During the conversation Merchant, a psychologist told Bauer that she worked in law enforcement and that she was the Deputy Director of the Department of Corrections of Prince George’s County, Maryland. He could see a concealed badge but he could not make out what it said and at no point did Merchant show it to him.

He started an investigation for impersonation of an officer. During the investigation he verified the information Merchant gave him during the meeting. He also verified that certain citizen employees of the n Prince George’s County Department of Corrections, including Merchant, were entitled to carry a badge. However, he continued the investigation. He discussed his findings with a deputy Commonwealth’s Attorney who told him he had a good case and he reviewed case law on the matter. Then he went to a magistrate and got a warrant. Merchant was arrested. But at trial the court threw the case out finding that there was no evidence to support the charges.

Merchant sued. Bauer claimed qualified immunity. The District Court denied the claim. In order to find that the officer had qualified immunity the court must find that there was no violation of a constitutional right or the right was not clearly established at the time of the incident. . The constitutional right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment. The need for probable cause to arrest a person was well known at the time of Merchant’s arrest and no reasonable person would have thought that probable cause existed based upon the information known to Bauer. As a result the Fourth Circuit Court of Appeal upheld the denial of qualified immunity.

There was an arrest warrant for Torrance Hill. His address was unknown but the authorities knew the address of his girl friend. However they felt that it was unlikely that he would be at her home, knowing that the police were looking for him and knowing that they would be looking for him at his girl friend’s townhouse. They went to the house, anyway, to question the girl friend. They knocked on the door. No one answered. They could here voices inside but they were unsure whether people were inside or it was the television. They called his girl friend, Ms Alvarez ¹ She was at work and she said the only person who could be in the residence was her sister.

The police opened the door anyway and found Hill in the house. They searched the residence and found marijuana and a grinder. An hour later Alvarez came home and consented to a full surch of the residence. They found a two-shot revolver, an empty holster, a bulletproof vest, scales, ammunition, marijuana, and crack cocaine. Hill was indicted and moved to suppress the evidence on Fourth Amendment grounds.

The strongest case for Fourth Amendment protection occurs when authorities search a residence. One’s house is one’s castle and an unconsented entry intp the house violates the Fourth Amendment. Officers can enter with a arrest warrant but only if the wanted person lives in the residence and the police have reason to believe that the person is present. Once they arrest a person in a residence they may search the area near the person as a search incident to arrest. They can also search the residence if the resident consents to the search. In this case the entry into the residence was illegal. The officers did not have consent at the time of the entry and they did not have reason to believe that Hill was in the residence. In fact an officer testified that there was an eighty per cent chance that Hill was not in the residence.

The Fourth Circuit Court of Appeals remanded the case to the trial court with instructions to determine whether or not the consent given by Alvarez was sufficiently attenuated from the illegal entry or whether it was tainted by the entry. The court instructed the lower court to look at three factors: (1) the time between the Fourth Amendment violation and the consent, (2) the presence of intervening circumstances, and (3) the flagrancy of the official misconduct. After reviewing these factors the court can determine whether Alvarez’s consent was voluntary or whether it was forced on her by the illegal entry into her house.