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United States v. Price

March 3, 2009

UNITED STATES OF AMERICA
v.
JOHN JOSEPH PRICE, JR., APPELLANT.



On Appeal from the United Stated District Court for the Western District of Pennsylvania. (D.C. Crim. No. 04-cv-0050E) District Judge: Hon. Sean J. McLaughlin.

The opinion of the court was delivered by: Chagares, Circuit Judge

PRECEDENTIAL

Argued January 31, 2008

Before: RENDELL and CHAGARES, Circuit Judges, and POLLAK, District Judge.*fn1

OPINION OF THE COURT

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."*fn2 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.*fn3 "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."*fn4 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 ...


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