Another stab at Schneckloth: the problem of limited consent searches and plain view seizures.

• Author: Friedman, Michael J.

1. INTRODUCTION

   Shortly after dawn on the morning of October 18, 1996, agents of the Drug Enforcement Administration arrived at the apartment of Agripina Fernandez in the Washington Heights section of Manhattan to execute a warrant for her arrest.(1) The agents knocked and announced themselves as police officers, and when Ms. Fernandez answered the door, they informed her that she was under arrest for conspiracy to distribute narcotics.(2) Ms. Fernandez, asserting her innocence, told the agents to "look anywhere, you will see there is no drugs, there is no guns, I have done no drug dealing."(3) One of the agents later testified, "she was very insistent that we look around ... because we weren't going to find any drugs if we did."(4) The agents then searched Ms. Fernandez's purse and her dresser and found neither guns nor drugs.(5) They did, however, locate and seize numerous documents which they believed tied Ms. Fernandez to the drug conspiracy they were investigating.(6)

   The district court reviewing these events not implausibly characterized Ms. Fernandez's words as a limited consent to search for guns and drugs only.(7) Nonetheless, the court allowed the government to use evidence lying beyond the scope of that consent against Ms. Fernandez.(8) In this case and many others like it, the words of the suspect's consent had remarkably little bearing on what items the police could legally seize and use against her.(9) This gap between what a suspect says and what the police may do in response is bridged by the plain view doctrine, which allows officers to seize incriminating items found in the course of an otherwise lawful search.(10) The plain view doctrine in general is well settled and uncontroversial, but its effect on the candor of police requests for consent to search has not previously been examined.

   The primary problem with plain view seizures during limited consent searches is that the consenting suspect gets less privacy than she bargained for. The suspect's clear, unambiguous offer, taking Ms. Fernandez's case as an example, to look for guns and drugs only, coupled with the agents' verbal acceptance of that limitation, creates, in the parlance of contract law, an agreement between police and suspect as to what may be searched.(11) But the plain view doctrine operates as the fine print in that agreement, creating an exception which only the police, and not the suspect, are aware of at the time the agreement is made.

   This situation is all the more abhorrent when a police officer deliberately deceives the suspect. The plain view doctrine opens a wide avenue to the police for pretextual consent searches. Consider the following: A police officer with a hunch, but without probable cause, that a suspect possesses an incriminating bed frame in his apartment asks the suspect for consent to see the layout of his apartment to aid in the investigation of a domestic dispute in an adjacent apartment.(12) The suspect, assured that he is not the subject of the investigation, consents.(13) The officer then enters, looks at the layout of the apartment, and finds the incriminating bed frame lying in plain view.(14) This scenario may seem far fetched, but it is exactly what happened in a recent Colorado case.(15) In this case, and in other cases where non-contraband evidence is found in plain view, the consenting suspect is unlikely to be aware that he is exposing anything incriminating by consenting to a pretextual search request. Yet he is left to ponder his lack of foresight from behind bars.

   The current state of search and seizure law does nothing to help the deceived consenter. The Supreme Court neglected to address the problem of limited consent searches in its most recent explication of the plain view doctrine.(16) A plurality of the Court in the 1971 case Coolidge v. New Hampshire(17) required that, among other conditions discussed below, police discovery of an item be inadvertent for that item to be admissible.(18) The plurality reasoned that inadvertence prevents police from deliberately expanding the scope of their search beyond the particularity of their warrant.(19) In 1990, after a number of jurisdictions began ignoring the Coolidge inadvertence requirement because only four justices had endorsed it, the Court revisited the issue, holding by a seven to two margin in Horton v. California(20) that inadvertence is not a necessary prerequisite of a lawful plain view seizure.(21) This Comment will argue that the Court's reasons for jettisoning the inadvertence requirement, while entirely appropriate for searches initially justified by warrants or exigencies, are not applicable to limited consent searches.(22) On the contrary, the majority's logic in Horton, specifically the Court's consideration of sinister police motives, supports a holding that inadvertence should still be required for plain view seizures executed during limited consent searches.(23)

   This Comment will explore the problematic relationship between limited consent searches and plain view seizures. Part II will trace the development of both the consent and plain view exceptions to the warrant requirement of the Fourth Amendment. Part III will examine some recent state and federal cases which turn on plain view extensions of limited consent searches. These cases highlight the problems lurking at the intersection of the two doctrines. Part IV will suggest several alternative rules which could better guide courts confronted with plain view seizures after limited consents, and will argue their efficacy.

   Fortunately, plain view seizures during limited consent searches do not happen often. For reasons discussed below, limited consent searches only occur under rare circumstances.(24) Perhaps as a result of the infrequent occasions to visit this issue, most courts have applied the plain view doctrine to limited consent searches without acknowledging or questioning the special problems implicated at the intersection of the two. Most of these courts have admitted the evidence at issue so long as it was found in areas authorized to be searched by the limited consent. Nonetheless, I will argue that the deception, the potential for pretextual intrusions, and the doctrinal failure in this unusual situation justifies a change in police protocol. When conducting a limited consent search, police officers should be required to warn the suspect that items other than the stated objects of the search will also be subject to seizure if the suspect grants consent. Such a requirement would amount to a retreat from the Supreme Court's 1973 holding in Schneckloth v. Bustamonte(25) that a suspect's knowledge of his right to refuse consent is not a necessary element of a valid consent. However, that step is necessary to clarify, both for suspect and officer, exactly what expectations of privacy will be honored in the ensuing search.

2. BACKGROUND LAW

   The Fourth Amendment commands:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.(26) While the Supreme Court once read this language to require warrants for all searches and seizures, the modern Court has instead directed only that a search or seizure be "reasonable."(27) In so shifting, the Court has carved out numerous exceptions to the warrant requirement, both for searches and seizures. These exceptions include: administrative inspections;(28) exigent circumstances;(29) consent searches;(30) searches incident to arrest;(31) inventory searches;(32) frisks and protective sweeps;(33) immigration inspections;(34) fire investigations;(35) the plain view doctrine;(36) Terry stops;(37) road checkpoints;(38) and interrogations generally so long as the suspect reasonably perceives that he is "at liberty to ignore the police presence and go about his business."(39) Most relevant to this discussion are consent searches and plain view seizures.

   1. CONSENT SEARCHES

      Police officers seek a suspect's consent to search for various reasons: to avoid the delays and administrative inconvenience of securing a warrant; to avoid the risk of suppression of evidence intrinsic to the more technical warrant process; or simply because they lack probable cause.(40) Police also prefer consent searches because, unless the suspect has the presence of mind to qualify his consent, consent searches may be far broader in scope than warrant searches which are confined by the Fourth Amendment's particularity requirement.(41) Consent searches can be general and exploratory, making it easy for police to justify their intrusion after the fact on the basis of what they have already found, regardless of whether they had probable cause before they found it.

      The reasons why a suspect succumbs to a consent request are far less obvious.(42) In many cases, a suspect "voluntarily"(43) allows police to conduct a search that the suspect knows will uncover incriminating evidence, and courts have been quick to point out the logical shortcomings of such a concession.(44) "Voluntariness" is a very slippery term. In one sense, all decisions made while a person is conscious, even those made under threat of physical violence or adverse legal consequences, are "voluntary" in that they represent a choice of alternatives.(45) And in another sense, no decisions are "voluntary" because all decisions are based on the prior accumulation of external influences which have inextricably shaped a person's values and desires and have predetermined the outcome of any given decision.(46) Somewhere between those extremes lies Stanley Milgram's obedience theory, which also casts doubt on the meaningfulness of "voluntary" consent by surmising that all encounters with law enforcement personnel are inherently...