                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-2009

USA v. Price
Precedential or Non-Precedential: Precedential

Docket No. 06-4503




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                                       PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    _____________

                        No. 06-4503
                       _____________

              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




                   Argued January 31, 2008

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


                     Filed: March 3, 2009




_____________________________
      * The Honorable Louis H. Pollak, Senior Judge of the
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
Candace Cain (Argued)
Lisa B. Freeland
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Counsel for Appellant

Rebecca R. Haywood (Argued)
Mary Beth Buchanan
United States Attorney’s Office for the
Western District of Pennsylvania
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee

                         _____________

                   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.




                                 2
                                 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.


                                 3
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

       1
        Schirra did not have a consent form with him because he
works undercover – as does Agent Wilson – and so it is critical not
to have any police-related paperwork in their respective cars.

                                 4
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




       2
          Sodium hypophosphite is a salt of hypophosphorous acid.
Its legitimate uses include electroless nickel plating, fire
retardation, and the catalysis of polymers.               But many
methamphetamine producers also use phosphorus chemicals – most
commonly red phosphorous, but also white phosphorous or
hypophosphorous acids like sodium hypophosphite – as catalysts
in the conversion of ephedrine or pseudoephedrine to
methamphetamine precursor, which is one step in the process of
methamphetamine production. As compared to red phosphorous,
“white phosphorus and hypophosphorous acid methods of illicit
methamphetamine production are significantly more hazardous . .
. . The hypophosphorous acid method is . . . extremely hazardous
since it produces phosphine gas. If not confined within the reaction
vessel, ingestion of this poisonous gas can result in death.” Control
of Red Phosphorus, White Phosphorus and Hypophosphorous Acid
(and Its Salts) as List I Chemicals, 65 Fed. Reg. 57577, 57578
(proposed Sept. 25, 2000) (to be codified at 21 C.F.R. pt. 1310).

                                  5
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

       3
        Fischer’s exact words at this point are the subject of some
dispute. Although Schirra twice said that she asked him to stop
searching “the house part,” he amended that later, saying that
Fischer asked him to stop searching only the drawers of the
nightstand. App. 141-42.

                                  6
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 and Affidavit for
Search Warrant (warrant application). The warrant applied to “a
one story single family ranch style residence with a basement and
garage accessible from the outside” at “8350 Page Road,
Wattsburg.”       App. 53.        It permitted a search for
“[m]ethamphetamine and any other illegal controlled substance,
any and all devices used to store, manufacture, and/or ingest
methamphetamine or any controlled substance”; “[c]hemicals,
laboratory equipment and other apparatus used in the production,
storage or transportation of methamphetamine, listed chemicals and
other controlled substances”; any documents relating to controlled
substance transactions; and any type of firearms. App. 56.


                                  7
                                G.

       The police returned to the Page Road residence later the
same day and seized numerous chemicals related to
methamphetamine manufacture from the basement, including 671
grams of sodium hypophosphite. On November 9, 2004, a grand
jury indicted Price on seven counts relating to the manufacture and
possession of methamphetamine. On May 4, 2006, after a hearing
on Price’s motion to suppress the fruits of the search, the District
Court granted the motion in part4 and denied it in part. On June 16,
2006, Price entered a conditional plea of guilty to Count One of the
indictment, reserving the right to appeal the denied portion of his
suppression motion to this Court.

       The Presentence Report calculated Price’s Base Offense
Level at 28. After a two-level downward adjustment for
acceptance of responsibility, Price’s Total Offense Level was 26.
This offense level, combined with a criminal history category of V,
produced a Guidelines range of 110-137 months. On October 10,
2006, the District Court sentenced Price to 115 months of
imprisonment. This appeal followed.

                                II.

       The District Court had jurisdiction pursuant to 18 U.S.C. §
3231. Because Price is appealing from a final judgment of
conviction and from the District Court’s suppression decision, on
which there is nothing further to be done, we have jurisdiction
pursuant to 28 U.S.C. § 1291. See Flanagan v. United States, 465
U.S. 259, 263 (1984); Catlin v. United States, 324 U.S. 229, 233
(1945).



       4
        The District Court suppressed a bag of sodium
hypophosphite found in Price’s jacket immediately following his
arrest because there was “no evidence that at the time of Mr.
Price’s arrest, he was in immediate proximity [of] the jacket.”
App. 19. This aspect of the District Court’s ruling on the motion
to suppress is not contested in this appeal. Furthermore, the
suppressed evidence was not referenced in the warrant application.


                                 8
         Price preserved his suppression argument, and so we review
the District Court’s factual determinations for clear error and
exercise plenary review over the application of the law to those
facts. See United States v. Williams, 417 F.3d 373, 376 (3d Cir.
2005). “A finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.” United States v. Pelullo, 173 F.3d 131, 135 (3d Cir.
1999) (quoting United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)). Accordingly, “[i]f the district court’s
account of the evidence is plausible in light of the record viewed in
its entirety,” we will not reverse it even if, as the trier of fact, we
would have weighed the evidence differently. Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985).

      We review de novo the legal question of whether Price
waived his right to appeal the calculation of his Guidelines range.
See United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).

                                 III.

        Price argues that the Government’s actions in obtaining
evidence at his Page Road residence violated his Fourth
Amendment rights and that the District Court should have granted
his motion to suppress that evidence. First, Price contends that the
initial5 consent to search his house was not voluntary and,
therefore, the evidence discovered in his bedroom (two glass pipes
with suspected methamphetamine residue and a baggie containing
sodium hypophosphite) should have been suppressed. Second,
Price contends that evidence seized from the basement of his house
pursuant to the warrant should be suppressed because the warrant
application did not establish probable cause when the allegedly
tainted evidence from his bedroom and the prior warrantless search
of the basement is excised from the warrant application.

                                A.

       The Fourth Amendment to the Constitution provides: “The

       5
        The “initial” consent for purposes of our discussion refers
to Fischer’s consent to search the living area of the Page Road
residence – including the bedroom – as opposed to the basement.

                                  9
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause . .
. .” “The touchstone of the Fourth Amendment is reasonableness.”
Florida v. Jimeno, 500 U.S. 248, 250 (1991). Therefore, the Fourth
Amendment does not prohibit all searches – only those that are
unreasonable. See Illinois v. Rodriguez, 497 U.S. 177, 183 (1990).
The general rule is that the warrantless entry into a person’s house
is unreasonable per se. See Payton v. New York, 445 U.S. 573,
586 (1980). This rule, however, is subject to several “jealously and
carefully drawn” exceptions. Jones v. United States, 357 U.S. 493,
499 (1958).

        “It is . . . well settled that one of the specifically established
exceptions to the requirements of both a warrant and probable
cause is a search that is conducted pursuant to consent.”
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The
Supreme Court has “long approved consensual searches because it
is no doubt reasonable for the police to conduct a search once they
have been permitted to do so.” Jimeno, 500 U.S. at 250-51. To
justify a search based on consent, the Government “has the burden
of proving that the consent was, in fact, freely and voluntarily
given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1968). This
burden “is not satisfied by showing a mere submission to a claim
of lawful authority.” Florida v. Royer, 460 U.S. 491, 497 (1983).

       There is “no talismanic definition of ‘voluntariness,’
mechanically applicable to the host of situations where the question
has arisen.” Schneckloth, 412 U.S. at 224. Instead, we determine
the voluntariness of a consent by examining the totality of the
circumstances. See id. at 227. Both “the characteristics of the
accused and the details of the interrogation” are useful to determine
whether, under all the circumstances, a consent to search was
voluntary, and no case should “turn[] on the presence or absence of
a single controlling criterion.” 6 Id. at 226.



       6
          Fourth Amendment tests nearly always involve
examination of the totality of the circumstances, because the
Amendment “recognizes that no single set of legal rules can
capture the ever changing complexity of human life.” Georgia v.
Randolph, 547 U.S. 103, 125 (2006) (Breyer, J., concurring).

                                   10
        Factors to consider include: the age, education, and
intelligence of the subject; whether the subject was advised of his
or her constitutional rights; the length of the encounter; the
repetition or duration of the questioning; and the use of physical
punishment. See id.; see also United States v. Kim, 27 F.3d 947,
955 (3d Cir. 1994). We have further identified as relevant “the
setting in which the consent was obtained [and] the parties’ verbal
and non-verbal actions.” United States v. Givan, 320 F.3d 452,
459 (3d Cir. 2003).

       The District Court found Fischer’s initial consent
voluntary.7 The Court noted that Fischer was an adult, apparently
of average intelligence, who had previous experience with the
criminal justice system. Moreover, “the atmosphere surrounding
the encounter was not hostile,” since the officers drove her to the
Page Road residence after her car ran out of gas, the officers did
not have their guns drawn when they asked for Fischer’s consent,
Fischer was not verbally or physically threatened, and only two
officers, Schirra and Wilson, discussed Fischer’s initial consent
with her in the driveway.

       Price attacks the validity of the initial consent on two
grounds.8 First, he alleges that because Fischer was not informed
of her right to refuse consent, her consent was involuntary.
Specifically, he argues that if the officers had shown Fischer a
consent form and asked her to sign it, “she would have been
advised of her rights concerning consent and would likely not have
signed prior to the search, just as she had refused to sign the form
when it was presented to her after the search was over.” Price
Reply Br. at 1. Second, Price contends that the officers lied to
Fischer when they told her that they wanted to search to protect her
safety and that of her children; rather, the officers’ true intention
was to look for evidence of a methamphetamine lab. This alleged
deception, according to Price, supports a finding of



       7
        The District Court’s determination of voluntariness is a
finding of fact. See Schneckloth, 412 U.S. at 227. As such, we
review for clear error.
       8
         Price does not argue that Fischer was without authority to
give the initial consent.

                                 11
involuntariness.9

        We hold that the District Court’s determination of
voluntariness was not clearly erroneous in light of the totality of
the circumstances.       First, Schneckloth contradicts Price’s
contention that the lack of a consent form, without more, means
that Fischer consented involuntarily. The Schneckloth Court held
that “[w]hile knowledge of the right to refuse consent is one factor
to be taken into account, the [G]overnment need not establish such
knowledge as the sine qua non of an effective consent.”
Schneckloth, 412 U.S. at 227. The Court explicitly considered –
and rejected – the possibility of mandating Miranda-like warnings
for all consensual searches. See id. at 231 (concluding that it
would “be thoroughly impractical to impose on the normal consent
search the detailed requirements of an effective warning”).

        Our leading case on the voluntariness of consent supports
this conclusion and provides an instructive comparison for our
case. In Kim, 27 F.3d 947, a 39-year-old male was traveling from
Los Angeles to Chicago on an Amtrak train. Two DEA agents
knocked on Kim’s sleeper car, looked at Kim’s ticket, and then
stated that they were with the DEA and that the DEA had problems
with people smuggling drugs on similar trains. Without telling him
that he could refuse, one agent asked if Kim would consent to have
his luggage searched, to which Kim “readily replied ‘Sure’.” Id. at
950. The agents arrested Kim after they found drugs in his
luggage.

       We held that the consent was voluntary, observing that
Schneckloth held clearly that the Government is not “required to
advise the defendant of his right to refuse consent before eliciting
his consent.” Id. at 955. We found it important that Kim replied
to the agents’ request “readily” and that Kim was cooperative

       9
         Price also notes that after he was arrested, the Government
did not ask him for consent to search his home. Instead of
obtaining a search warrant for the Page Road residence, the officers
went to the house, and when Fischer eventually arrived, they told
her that Price had been arrested and that they wanted her consent
to search only to make sure that the house was safe for her and her
children. But, critically, this is irrelevant to the voluntariness of
Fischer’s consent, and so will not be considered.

                                 12
during the entire interaction: “Kim’s demeanor was no doubt a
strong indication of voluntariness. . . . Moreover, the whole
encounter was short, lasting only several minutes,” and only one
officer was visible to Kim. Id. “There was no repeated and
prolonged questioning. Nor did [the agent] ask Kim direct, probing,
or incriminating questions.” Id. We concluded that “particularly
in the face of strong evidence of voluntariness,” it was not
significant that the agents did not advise Kim of his right to refuse
consent. Id.

        The instant case is analogous to Kim. Even more than in
Kim, the circumstances of the encounter were low-key. Fischer
was asked for consent as she stood on her own property. Most
officers on the scene were deliberately kept away so as not to
overwhelm her. The officers who were there did not have their
guns drawn. No one threatened, coerced, or promised anything to
Fischer. At no point was she arrested, handcuffed, or even
touched. Schirra and Wilson both testified that Fischer granted the
initial consent to search the house without any reluctance or
hesitation whatsoever. There was no prolonged questioning, and
the officers did not ask any incriminating questions before seeking
consent to search. Moreover, as the District Court set forth,
Fischer’s age, intelligence, and education were at least average, and
she had previous experience with the criminal justice system. In
sum, every factor, save one (that she was not advised of her right
to refuse consent),10 favors a finding of voluntary consent. Under
these circumstances, Fischer’s consent was voluntary, and this is
true notwithstanding that Fischer was not advised of her right to
refuse consent.

       Next, as the District Court found, Price’s suggestion that the
officers’ only concern was to uncover a methamphetamine lab at
the Page Road residence is belied by the record. No doubt, the
police certainly were looking for a methamphetamine lab. But the
agents – indisputably – also wanted to make sure that Fischer and
the two children were not placed in danger by the chemicals
associated with any such operation. Even after the agents had

       10
        As the District Court observed, however, “[a]lthough
[Fischer] was not advised of her right to refuse consent . . . her
subsequent revocation of consent indicates her awareness of that
right.” App. 5.

                                 13
completed their work at the house, and even after Fischer had
refused to sign the consent form, Schirra “advised her that she had
to get her kids out, she would have to leave because it was a very
potential hazard [sic] for the kids because there was [sic] chemicals
in there. They posed an explosive hazard, plus the chemicals
smell.” App. 120. Schirra also advised Fischer to seek a medical
examination for her and for her children. We agree with the
District Court that the agents had two motives for seeking consent
– to find the methamphetamine lab they thought might be there,
and also to safeguard the well-being of Fischer and her children.
The officers’ statement of reasons for desiring the search does not
alter our conclusion that Fischer’s consent was voluntary under the
totality of the circumstances.

      Accordingly, the District Court did not err in refusing to
suppress the evidence -- two glass pipes with suspected
methamphetamine residue and a baggie containing sodium
hypophosphite -- obtained in Price’s bedroom following the initial
consent.

                                 B.

       Price also argues that the evidence obtained pursuant to the
search warrant should have been suppressed. He claims that if the
warrant application is stripped of evidence obtained in: (1) his
bedroom pursuant to the initial consent (we considered and rejected
this challenge supra, section III(A)), and (2) the basement pursuant
to the warrantless search, then “what remains does not amount to
probable cause to support a search.” Price Br. at 29.

        The parties dispute vigorously three issues related to the
warrantless search of the basement: First, did Fischer withdraw the
initial consent to search that she had provided to Schirra and
Wilson in the driveway, and if so, what was the extent of the
revocation? Second, even if Fischer revoked her consent to search
the house, and even if that revocation applied to the basement as
well, did Fischer later consent voluntarily to a search of the
basement? Third, even if Fischer voluntarily consented to the
basement search, did she have the authority to consent to such a
search?




                                 14
       These are all difficult issues, but we need not resolve any of
them. Rather, we hold that the search warrant application
contained probable cause from independent sources even after
excising all the evidence found in the basement. Thus, even
assuming Fischer did not consent to the basement search, or did not
have authority to consent, the “independent source” rule applies
here and vitiates any taint from the initial, assumed illegal, entry.

        The independent source doctrine serves as an exception to
the exclusionary rule and permits the introduction of “evidence
initially discovered during, or as a consequence of, an unlawful
search, but later obtained independently from activities untainted
by the initial illegality.” Murray v. United States, 487 U.S. 533,
537 (1988); see United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002); United States v. Herrold, 962 F.2d 1131, 1140 (3d Cir.
1992).

       In Murray, law enforcement agents improperly forced entry
into a warehouse and observed burlap-wrapped bales, later found
to contain marijuana, in plain view. The agents left the warehouse
without disturbing the bales, and did not reenter until they had
obtained a search warrant for the warehouse. In applying for the
warrant, the agents did not mention the prior entry and did not rely
on any observations made during that entry. A magistrate issued
a warrant and the agents then conducted a second search of the
warehouse and seized the burlap bales containing the marijuana.

       The Court observed that the proper remedy for police error
or misconduct relating to evidence is to “put[] the police in the
same, not a worse, position that they would have been in if no
police error or misconduct had occurred.” 487 U.S. at 537
(emphasis in original) (quotation marks omitted). Accordingly,
“[w]hen the challenged evidence has an independent source,
exclusion of such evidence would put the police in a worse position
than they would have been in absent any error or violation.” Id.
(quotation marks omitted).

        The doctrine has both “general” and “specific” aspects. The
former “identifies all evidence acquired in a fashion untainted by
the illegal evidence-gathering activity. Thus, where an unlawful
entry has given investigators knowledge of facts x and y, but fact
z has been learned by other means, fact z can be said to be


                                 15
admissible because derived from an ‘independent source.’” Id. at
537-38. In other words, “the evidence found for the first time
during the execution of the valid and untainted search warrant was
admissible because it was discovered pursuant to an ‘independent
source.’” Id. at 538. By contrast, in the specific sense, if “officers
[] unlawfully enter an area protected by the Fourth Amendment and
learn of facts x and y but then later learn of facts x and y
independently and lawfully, [they] can have admitted into evidence
their knowledge concerning facts x and y.” Herrold, 962 F.2d at
1140.

        In Herrold, a confidential informant met with the defendant
to arrange a cocaine purchase. The informant completed the
transaction, and then told the police officers who had been
surveying the deal that Herrold was planning to go out to a bar
later, that he had been smoking crack and acting “squirrely,” and
that Herrold had a gun. 962 F.2d at 1134. The officers also knew
that Herrold was likely to take more cocaine to the bar and sell it
there. Therefore, they decided to arrest Herrold in his trailer
without a warrant. While arresting Herrold, they saw a loaded
weapon and drug paraphernalia and cocaine in plain view. After
securing Herrold, the officers left to get a warrant.

         We began our analysis of the applicability of the
independent source doctrine in Herrold by recognizing that “we
must determine if, without regard to information obtained during
the original entry, the police would have applied for the search
warrant and we must also determine if there was probable cause for
the warrant to be issued.” Id. Considering the first question, we
reversed the District Court’s holding that it was merely
“speculative” whether the police would have sought a warrant to
search the trailer absent the original entry. Id. at 1141. We held
that it was “inconceivable that the police would have left the
premises without searching the trailer and without arresting
Herrold,” based upon all that the officers knew even without the
initial entry. Id. at 1140. Considering the second question, we held
that “it is obvious that the affidavit for the warrant contains
sufficient probable cause apart from information the officers
learned via the original entry.” Id. at 1141.

      Price contends that if, indeed, the police would have applied
for a warrant even without the allegedly tainted material, they


                                 16
should have applied for a warrant before conducting their search.
But the question is not what the police should have done. Instead,
the issue is whether the police would have applied for a warrant
without the material tainted by a warrantless search.

        The answer is yes. Indeed, the facts of this case closely
track the facts in Herrold. As in Herrold, it seems impossible that
the police would not have applied for a warrant to search the
basement of the house, knowing that: 1) confidential informants
told the police that Price was operating a methamphetamine
laboratory in the basement of the Page Road residence; 2) Price had
sold Schirra methamphetamine in the past; 3) when arrested, Price
had pH papers and baggies containing methamphetamine residue;
and 4) Price’s bedroom contained glass pipes with
methamphetamine residue and a baggie of sodium hypophosphite.

        The second question is whether the warrant application
contained probable cause without the information gleaned from the
basement. The District Court determined that even “assuming that
the contraband found in the basement area should not have been
included in the affidavit in support of the search warrant, . . . the
warrant was independently supportable by other information
contained therein.” App. 17. “Thus, even if all references to the
contraband found in the basement area were excised from the
affidavit,” the District Court held that “the affidavit would still
support a broad search of the premises for the evidence outlined in
the warrant.” App. 18. We agree with the holding of the District
Court.
        Probable cause exists if, under “the totality-of-the-
circumstances . . . the issuing magistrate [makes the] practical,
common-sense decision [that], given all the circumstances set forth
in the affidavit before him . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Direct
evidence of a crime is not necessary in all cases: “While ideally
every affidavit would contain direct evidence linking the place to
be searched to the crime, it is well established that direct evidence
is not required for the issuance of a search warrant.” United States
v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993). Rather, “probable
cause can be, and often is, inferred by considering the type of
crime, the nature of the items sought, the suspect’s opportunity for



                                 17
concealment and normal inferences about where a criminal might
hide stolen property.” Id. (quotation marks omitted).

        Without any reference to the evidence obtained pursuant to
the warrantless basement search, the warrant application would still
include at least three key pieces of information about Price’s
activities: 1) that Price sold Schirra 1/4 gram of methamphetamine
on April 5, 2002; 2) that Schirra arrested Price on October 5, 2004,
and that when searched, Price possessed “items indicative of
methamphetamine trafficking, including plastic baggies with
methamphetamine residue and pH papers used to gauge the acidity
of the methamphetamine production process”; and 3) that after
searching Price’s bedroom, Schirra found two glass pipes that were
consistent with the ingestion of methamphetamine. See generally
App. 217 (Government noting to the District Court the illegality of
possessing drug paraphernalia in Pennsylvania, and representing
that possession of glass pipes alone would support a search of
Price’s premises).11 The warrant application also explains that
people who are involved in methamphetamine distribution often
have, in their homes, drugs, large quantities of money, and
evidence of financial transactions, as well as documentation
concerning illegal narcotics, such as “recipes” for making
methamphetamine and other substances.

       Based on the evidence set forth above, as well as the warrant
application’s statements regarding the characteristics of those who
are involved in methamphetamine production, it is clear that there
was probable cause for the warrant to be issued without any
reference to the evidence found in the basement of the Page Road
residence during the warrantless search. Accordingly, we will
affirm the District Court’s refusal to suppress the evidence
discovered in the basement pursuant to the search warrant.

                                IV.

       Price’s second claim is that the Government abused its
discretion by refusing to request a third-point reduction of his base
offense level for acceptance of responsibility pursuant to U.S.S.G.



       11
       The warrant application did not mention the baggie of
sodium hypophosphite obtained in Price’s bedroom.

                                 18
§ 3E1.1(b). We disagree because Price waived his right to appeal
this issue. Accordingly, we reject Price’s claim.

        Price signed a plea agreement on June 16, 2006 that set forth
the “full and complete agreement” between the parties. App. 262.
Price agreed to plead guilty to Count One of the indictment, and to
accept responsibility for Counts Two through Seven. In Paragraph
5, Price also agreed to a comprehensive waiver of appeal, subject
to only three exceptions. See App. 263. The three exceptions
were: 1) if the Government appealed; 2) if the sentence exceeded
the statutory limits or “unreasonably” exceeded the guideline
range; and 3) the conditional appeal dealt with in section III, supra,
that is “whether his motion to suppress the evidence seized from
his residence was properly denied.” Id. These were the only three
exceptions, and the agreement explicitly stated that “[t]he
foregoing reservations of the right to appeal on the basis of
specified issues do not include the right to raise issues other than
those specified.” App. 264 (emphasis added).

       The Government, in exchange for this guilty plea, agreed to
recommend that “the Court reduce the offense level by 2 levels for
acceptance of responsibility” pursuant to § 3E1.1. Id. Nowhere
was mentioned a third-point reduction pursuant to § 3E1.1(b).
Finally, the plea agreement reiterated that “[t]his letter sets forth
the full and complete terms and conditions of the agreement
between JOHN JOSEPH PRICE, JR. and the [Government], and
there are no other agreements, promises, terms or conditions,
express or implied.” App. 266.

        We have held that “[w]aivers of appeals, if entered into
knowingly and voluntarily, are valid, unless they work a
miscarriage of justice.” Khattak, 273 F.3d at 563. Here, the
written waiver is undoubtedly comprehensive as applied to a
challenge brought under § 3E1.1(b) of the Guidelines, because it
precludes any appeal from Price’s “conviction or sentence under 28
U.S.C. § 1291 or 18 U.S.C. § 3742.” App. 263. Indeed, the
language here tracks closely that of the waiver of appeal enforced
in United States v. Gwinnett, 483 F.3d 200, 204 (3d Cir. 2007)
(upholding written waiver in plea agreement as “comprehensive”
which stated that the Government and defendant “waive certain
rights to file an appeal, collateral attack, and writ or motion after



                                 19
sentencing, including but not limited to an appeal under 18 U.S.C.
§ 3742”).

        Therefore, “[w]e next look to the colloquy between the
sentencing judge and [Price] during the [sentencing] hearing,”
Gwinnett, 483 F.3d at 204, because to “determin[e] whether a
waiver of appeal is ‘knowing and voluntary,’ the role of the
sentencing judge is critical,” Khattak, 273 F.3d at 563. First, at the
sentencing hearing, the Government presented the terms of the plea
agreement in open court, noting that under the agreement Price
“also agrees to waive his right to file any appeals subject to the
limitations in the plea agreement,” and noting specifically that the
“one issue” Price was capable of appealing was the suppression
issue. App. 251-52. The Government also stated that “[i]n
exchange, . . . the [G]overnment agrees to recommend a two-point
reduction in [offense] level for his timely acceptance of
responsibility.” App. 252. Price’s attorney then noted that “the
appeal waiver also allows Mr. Price’s ability to appeal if the
Government appeals the sentence if the sentence is at maximum,
and also allows him to appeal unreasonable guidelines to be
determined by the Court.” Id.

        The District Court asked Price whether he had read and
reviewed the agreement and whether he agreed to its terms and
conditions. Price answered “yes” to each question. The Court then
had Price sign the agreement in open court, and Price certified that
he understood that by virtue of signing the agreement, he was
“attesting by [his] signature that [he] agreed with all the terms and
conditions.” App. 254.12

       We hold that the appellate waiver in this case was entered
into knowingly and voluntarily and that enforcement of the waiver

       12
          We note that the procedure employed by the court in this
case is nearly identical to the procedure employed by the district
court in Gwinnett. See 483 F.3d at 204 (“[T]he District Court
asked Gwinnett whether she read the plea agreement, discussed it
with her attorney, asked her attorney questions about the
agreement, and came to understand the agreement before signing
it. Gwinnett answered in the affirmative to each question. . . . In
addition, the District Court confirmed that Gwinnett had signed the
plea agreement.”).

                                 20
will not result in a miscarriage of justice. Accordingly, we will
enforce the waiver of appeal, and Price cannot succeed on his §
3E1.1(b) claim.

                               V.

      For the reasons set forth above, we will affirm the District
Court’s suppression decision and its sentencing calculation.




                               21
