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 …