I am no Fourth Amendment expert, but my guess is that the Supreme’s are considering overruling the requirement from Suacier that, in qualified immunity cases, the lower federal courts consider the constitutional prong of the two-step analysis before they decide the clearly established law prong. For example, in Pearson, the Tenth Circuit simply could have said “we don’t need to address whether the consent once removed doctrine applies because neither we nor the Supreme Court has addressed the question and thus there is no way that the officers’ actions could have been in contravention of clearly established law.” Under Saucier, however, the Tenth Circuit had to address the constitutionality of the search first. Several justices have griped about this requirement and I am guessing they will overturn it. This will make lower courts’ job in qualified immunity cases much easier but will mean that most constitutional law (at least in the criminal context) will be created on direct review.

Because Pearson is a 4th Amendment case involving search of a home, one would suppose that Justices Ginsburg, Stevens, and Breyer believe that the two-step inquiry mandated by Saucier is entirely appropriate in this case. So it seems improbable that they would seek to use Pearson as a vehicle for overturning Saucier. If so, who is it that wants to overturn Saucier? Is it possible that more conservative justices think that the current structure of good-faith immunity is insufficiently protective of police officers and are considering re-writing the law in a way that dramatically expands the scope of good-faith immunity?