U.S. v. Price

• Decision Date: 03 March 2009
• Docket Number: No. 06-4503.,06-4503.
• Parties: UNITED STATES of America v. John Joseph PRICE, Jr., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

558 F.3d 270

UNITED STATES of America v. John Joseph PRICE, Jr., Appellant.

No. 06-4503.

United States Court of Appeals, Third Circuit.

Argued January 31, 2008.

Filed: March 3, 2009.

Candace Cain (Argued), Lisa B. Freeland, Pittsburgh, PA, for Appellant.

Rebecca R. Haywood (Argued), Mary Beth Buchanan, United States Attorney's Office for the Western District of Pennsylvania, Pittsburgh, PA, for Appellee.

Before: RENDELL and CHAGARES, Circuit Judges, and POLLAK, District Judge.^*

OPINION OF THE COURT

CHAGARES, Circuit Judge.

John Joseph Price, Jr. entered a conditional plea of guilty to methamphetamine manufacturing and possession and now appeals two aspects of his proceedings. First, he argues that the District Court erred in refusing to suppress evidence because the Government violated his Fourth Amendment rights. In particular, Price contends that a consent to search his house was not voluntary and that evidence seized from his basement pursuant to a later-obtained warrant should be suppressed. Second, Price argues that notwithstanding his waiver of appeal, the Government abused its discretion by refusing to request an additional offense level reduction of one point for acceptance of responsibility under § 3E1.1(b) of the Sentencing Guidelines. Because we agree with the District Court's decisions regarding the motion to suppress and its sentence, we will affirm.

I.

A.

On April 5, 2002, Price sold approximately 1/4 gram of methamphetamine to Randall Schirra, an undercover agent with the Pennsylvania Attorney General's office. As a result of this sale, the Commonwealth issued a warrant for Price's arrest, but he eluded capture for more than two years. On October 5, 2004, Price's luck ran out, for on that date, law enforcement officers from both the Attorney General's office and the Pennsylvania State Police went to Price's place of work—a garage off of Route 97 in Erie, PA. Schirra had source information that Price would be there.

The agents found Price in a small office near the back of the garage. They handcuffed him and removed him from the building. A search of Price conducted incident to the arrest revealed "items indicative of methamphetamine trafficking, including plastic baggies with methamphetamine residue and pH papers used to gauge the acidity of the methamphetamine production process." Appendix (App.) 61.

B.

Outside the garage, Price told Schirra that he was supposed to pick up his kids, and since his wife was working, the children would be home alone. Price lived with his common-law wife, Debbie Fischer, and two children (a girl, age 14, the daughter of Price, and a boy, age 9, the son of Price and Fischer) at 8350 Page Road in Wattsburg, Pennsylvania. Schirra testified at the suppression hearing that he told Price that officers would "check on the childrens['] safety [and] contact his wife." App. 132. Schirra also testified, however, that he wanted to get consent to search the Page Road residence to see if Price operated a methamphetamine lab there. The officers had "quite a bit of information gleaned from sources, unidentified informants and concerned citizens about Mr. Price's involvement in methamphetamine" at the Page Road residence. App. 152.

Leaving Price in the custody of a state trooper, Schirra and two other state officers, Trooper Ron Wilson and Agent Tim Albeck, drove to Price's Page Road residence. The two children answered Schirra's knock on the door and confirmed that no adult was home. They gave the officers Fischer's number at work. Wilson called Fischer, and she drove home from work to the house. On her way home, Fischer ran out of gas, so Albeck picked her up and brought her to the house.

C.

More officers arrived on the scene, but Schirra and Wilson had those officers stay down the road, away from the Page Road residence, so that only three or four officers were present when Schirra, Wilson and Fischer first conversed in the driveway/front yard area of the home. Wilson testified that they minimize the number of officers on the scene "so that ... the people are not overwhelmed with law enforcement's presence whenever they give or do not give consent. So it's not—so that they're more relaxed and they don't feel coerced at all." App. 174.

Schirra and Wilson explained to Fischer that Price had been arrested, and that the authorities "had prior information that Mr. Price was involved in manufacturing methamphetamine at the residence. And that we would like to have consent to search to make sure it was a safe environment for her and her children." App. 113. Wilson also mentioned that the agents had information that there was a stolen All Terrain Vehicle (ATV) on the premises.

These were the only reasons the officers gave Fischer for why they wanted to search the house and property—to protect the safety of her and her children from any methamphetamine production, and to look for the ATV. The officers did not tell Fischer that she had the right to not consent, did not tell her that anything found could incriminate her or Price, and did not present her with a written consent form (which included all of that information). Schirra did not present Fischer with a written consent form because, in his words, "I didn't have one on me."¹ App. 122.

Without hesitation, Fischer verbally consented to having the agents look around the house and the property. Fischer did not appear to be under the influence of drugs or alcohol, seemed to understand what the officers were telling her, and did not appear especially agitated or afraid. Schirra observed that "she was a little nervous," but "relatively normal." App. 161.

Schirra followed Fischer into the house. Wilson remained outside, and began walking around the curtilage, looking for the ATV. He eventually found the stolen four-wheeled vehicle under a pile of car seats and covers near an outbuilding.

D.

Just off of the living room, as one entered the house, was a room with a padlock on the door. Fischer explained that she and Price slept in this room. Schirra asked Fischer if she had a key. She answered affirmatively, produced a key, and unlocked the door. As she did so, Fischer told Schirra that she and Price used methamphetamine (but did not manufacture it), and that there "might be some pipes" in the bedroom. App. 115. Schirra searched the room and found two glass pipes and a baggie containing sodium hypophosphite in the drawers of a nightstand near the bed.² "At that point," Schirra testified, "she asked me to stop searching the house part. Because we found that stuff and she thought she was going to get in trouble."³ App. 117.

Schirra obliged, and left the house. His "prior information about Mr. Price's manufacturing methamphetamine," however, "always said [Price] was cooking in the garage, in the basement area of the home." App. 124. Therefore, as he was leaving the house, he asked Fischer how one could get to the basement. Fischer replied that there was no access to the basement from within the house and then "asked [Schirra] to follow her outside." App. 126. As the two walked around the side of the house, they reconnected with Wilson.

E.

Schirra asked if Fischer would give the agents consent to search the basement. Without responding verbally, Fischer "directed [the officers] down to the side of the house where you get into the basement ... and she said that she didn't have the key for it, that only Mr. Price had the key for it." App. 117-18. Schirra again asked if the agents "could [] have permission to search the basement. She said if you could get in, you could search it, but she had no key to get in." App. 126. Fischer added that she did not want them to "do any damage to the doors." App. 118. Wilson testified that Fischer did not hesitate to offer consent for him to pick the lock because "I wouldn't have gone in if she had" hesitated. App. 161.

Although she did not have a key, Fischer indicated to the agents that she used the basement to do laundry, and that the family stored various items, such as Christmas decorations, in the basement. App. 146. Schirra did not ask Fischer how she accessed the basement if she did not own a key. He was not sure if she ever possessed a key and just did not have it that day, or if she never had a key.

Wilson then picked the lock of the basement door with a pocketknife, entered the basement briefly, and came out. Wilson only went "a half dozen steps in ... [j]ust to make sure that it was secure, that it was safe. So that somebody wasn't hiding in there with a gun." App. 172. Schirra entered the basement after Wilson exited. Immediately inside, on the right, lay an open bag containing numerous Sudafed blister packets, as well as "some other chemicals and items that were used in the manufacture of methamphetamine." App. 119. Schirra exited the basement, and told Fischer that she and the children had to leave the house "because it was a[] potential hazard for the kids because there was [sic] chemicals in there." App. 120. He also recommended that Fischer and the children seek medical treatment.

Schirra then asked Fischer to sign a written consent form. She refused. Schirra stated that he asked Fischer to sign a form after going into the basement "[b]ecause other officers had arrived [who] had written consents on their person." App. 122. Moreover, the signed form would have "save[d] me time.... It's faster for me to react to a hazardous area with a consent search than applying [for] and obtaining a search warrant." App. 149. If Fischer had signed the consent form, Schirra would have "felt comfortable securing the residence and treating the hazardous environment immediately, rather than having to wait such a long time to obtain a search warrant." App. 122. Because Fischer did not consent, however, Schirra posted officers outside the house and left to apply for a search warrant.

F.

A Magistrate Judge issued a warrant at 2:10 a.m. on October 6, 2004 after reviewing Schirra's Application...