United States v. Price
2009 U.S. App. LEXIS 4128,___F.2d___
Decided: March 3, 2009
The United States Court of Appeals for the Third Circuit confirmed that law enforcement agents are not always required to advise the resident of a house of his right to refuse consent to search.
On April 5, 2002, Price sold 1/4 gram of methamphetamine to Schirra, an undercover agent with the Pennsylvania Attorney General's office. The Commonwealth issued a warrant for Price's arrest but he avoided capture for more than two years.
On October 5, 2004, the Attorney General's office and PSP went to Price's work on a tip. The officers located Price in a small office in the back of the building. He was handcuffed and removed from the building. The search incident to the arrest revealed "items indicative of methamphetamine trafficking, including plastic baggies with residue and pH papers.
Price told Schirra that he was supposed to pick up his kids. His wife was working and his kids would be left alone at the house. Schirra told Price that the officers would check on his children and contact his wife. Schirra testified that he wanted to get consent to search Price's residence to see if Price operated a methamphetamine lab there. The officers had a lot of information from informants that Price had a lab at his home.
Schirra and two officers left Price and headed to his house. One of the children opened the door and confirmed that there were no adults at home. The children gave Schirra their mother's phone number and he contacted her. More officers arrived on the scene before she arrived at home and Schirra had the officers stay away from the house. He testified that he liked to minimize the number of officers on the scene so that the people giving consent are not overwhelmed by the law enforcement presence and feel more relaxed and not coerced. Schirra explained to Price's wife when she arrived home that Price had been arrested, the police had prior information that Price was making methamphetamine at the house, that there was a stolen ATV on the premises, and that he would like to have consent to make sure it was a safe environment for her and her children. Price's wife gave verbal consent to search the property. She did not appear to be under the influence of drugs or alcohol and seemed to comprehend everything that was said.
The officers located the stolen ATV in the backyard. In the house there was a door with a padlock on it. Price's wife unlocked the door and she told Schirra that she and Price used, but did not manufacture methamphetamine so there may be some pipes in there. Inside the room, Schirra located two pipes and a baggie with sodium hypophosphite. At that point, Price's wife asked Schirra to stop searching the house part because "we found stuff and she thought she was going to get in trouble." Schirra left the house.
Schirra had received information from informants that Price always made the methamphetamine in the garage or in the basement. On the way out of the house, Schirra asked Price's wife how he could get to the basement. She said there was no access from inside the house and asked him to follow her outside. Once outside, Schirra asked her if she would consent to a search of the basement. She did not consent verbally but pointed to the basement access and said the Price was the only one who had a key. Schirra asked her again for consent and she said if you can get in, you can search it.
The agents picked the lock with a pocketknife and entered the basement briefly, and came out. Schirra entered the basement and immediately inside was an open bag containing numerous Sudafed blister packets, as well as some other chemical items that were used to make methamphetamine. Schirra exited the basement and told Price's wife that her and the kids had to leave the house because it was "a potential hazard for the kids because there were chemicals in the basement." Schirra also recommended they seek medical treatment.
Price's wife refused to sign the consent form and Schirra posted officers outside the house and left to apply for a search warrant.
The warrant was issued at 2:10 a.m. on October 6, 2004. The warrant permitted a search for methamphetamine and any other illegal controlled substance, any and all devices used to store, manufacture, and/or ingest methamphetamine or any controlled substance, chemicals, lab equipment, any documents relating to controlled substance transaction, and any type of firearms. The police returned to the residence and seized numerous chemicals, including 671 grams of sodium hypophosphite.
Price was indicted on seven counts relating to the manufacture and possession of methamphetamine. Price filed a motion to suppress the fruits of the search and the District Court granted the motion in regards to the sodium hypophosphite found in Price's jacket and denied to suppress any other evidence. The District Court sentenced Price to 115 months of imprisonment.
Price appealed the denial of his suppression motion to this Court.
Price argued that the original consent was not voluntary and therefore the evidence discovered in his bedroom should have been suppressed. Second, he contended that the evidence seized from his basement pursuant to the warrant should be suppressed because the warrant application did not establish probable cause if you remove the tainted evidence from his bedroom and the prior warrantless search of his basement.
Specifically, Price argued that his wife was not told she could refuse to consent, was not asked to sign a consent form for a search of the house, and that the police lied to her when they told her it was for the safety of the children.
The Court of Appeals analyzed the factors surrounding the initial consent and determined that every factor, except that she was not advised of her right to refuse consent, favors a finding of voluntary consent. The Court looked at her age, education, intelligence, and her previous experience with the criminal justice system. The Court also considered the situation in which consent was obtained. She was not coerced, threatened, arrested, or even touched. The conversation took place on her property with a small police presence. Under these circumstances, the Court concluded that her consent was voluntary, even though she was not advised of her right to consent.