was denied because, among other reasons, "the failure to investigate fully is not evidence of an affiant's reckless disregard for the truth."
These cases are distinguishable from this case for several reasons. First, the alleged recklessness in Dale consisted of failing to investigate more thoroughly, not of basing an entire warrant application on false information. Id. Second, the alleged falsities in both Millar and Dale did not negate probable cause when removed from the affidavit. See Millar, 79 F.3d at 342; Dale, 991 F.2d at 844-45. Finally, in Dale the government disputed whether the affidavit contained false information. Id. at 845.
In contrast, the government here concedes that the bulk of the information contained in the complaint was false. There is a strong likelihood that this complaint failed to establish probable cause in the absence of the false material. Under these circumstances, Padilla has made a substantial showing that the complaint was prepared recklessly. A Franks hearing is therefore required.
B. Defendant Fernandez
Fernandez argues that although she did voluntarily consent to a search, that consent was limited in scope to a search for drugs and guns. She contends that any documents seized were taken without her consent and must be suppressed.
I find that Fernandez' spontaneous offer, as reported by Special Agent Ingalls, to "look anywhere, you will see there is no drugs, there is no guns," was a limited consent to search for drugs and guns as permitted by Florida v. Jimeno, 500 U.S. 248, 252, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents").
While Cooper-Davis confirmed in Spanish that Fernandez was consenting to a search, she did not discuss the scope of the consent. Under those circumstances, it was not objectively reasonable for the agents to conclude that Fernandez gave them a blanket consent to search.
The next question, then, is what items an officer may seize when conducting a limited search. "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence." Harris v. United States, 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968). The warrantless seizure of an item is justified under the plain view exception where (1) the police have lawful access to the place from which the item can be plainly viewed; (2) the item seized is in fact in plain view at the time it is discovered; and (3) it is "immediately apparent" to the police at the time of discovery that the item constitutes evidence of, an instrumentality of or fruit of a crime. See Horton v. California, 496 U.S. 128, 136, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990); United States v. Yu, 755 F. Supp. 578, 581 (S.D.N.Y. 1991). The "immediately apparent" requirement is met only where the officers have "probable cause to believe that an object in plain view is [evidence of a crime] without conducting some further search of the object." Minnesota v. Dickerson, 508 U.S. 366, 375, 124 L. Ed. 2d 334, 113 S. Ct. 2130 (1993). See also Soldal v. Cook County, 506 U.S. 56, 66, 121 L. Ed. 2d 450, 113 S. Ct. 538 (1992) ("in the absence of consent or a warrant permitting the seizure of the items in question, such seizures can be justified only if they meet the probable cause standard and if they are unaccompanied by unlawful trespass") (citations omitted); Arizona v. Hicks, 480 U.S. 321, 326-27, 94 L. Ed. 2d 347, 107 S. Ct. 1149 (1987) (requiring probable cause to seize items found in plain view); Warden v. Hayden, 387 U.S. 294, 307, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967) (requiring a nexus between any objects seized in such circumstances and the criminal behavior being investigated); United States v. Grubczak, 793 F.2d 458, 461 (2d Cir. 1986) ("the incriminating nature of an object is generally deemed 'immediately apparent' where police have probable cause to believe it is evidence of crime") (quoting United States v. Ochs, 595 F.2d 1247, 1258 (2d Cir. 1979)).
The facts of this case clearly satisfy the first two prongs of the Horton test. Fernandez consented to a search for guns and drugs, thus allowing the agents lawful access to her dresser and purse, where the seized documents were found in plain view. See Tr. I at 123. The question of whether it was "immediately apparent" to Agent Ingalls that the documents she seized were evidence of a crime without further search of those documents, see Dickerson, 508 U.S. at 375, is not so easily answered. Just as officers may not, upon glancing at a stereo, move it to look for a serial number unless they have probable cause to believe it was stolen, see Hicks, 480 U.S. at 324-29, neither may officers, upon glancing at documents noticeably beyond the scope of the consent, peruse them in search of incriminating evidence. See United States v. Silva, 714 F. Supp. 693, 696 n.6 (S.D.N.Y. 1989) ("if the incriminating nature of the document cannot be readily ascertained without moving or disturbing it, an officer may not, absent probable cause move or further search the book or document"). See also United States v. Rude, 88 F.3d 1538, 1552 (9th Cir. 1996) (suggesting this limitation in a search conducted pursuant to a valid search warrant).
Documents inherently require greater examination to determine their relevance than do other physical items. In Andresen v. Maryland, the Supreme Court admonished:
We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.