                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-2979
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                   JOSE M. ORTIZ,
                                              Appellant
                                  ________________

                   On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         District Court No. 1-10-cr-00131-001
                 District Judge: The Honorable Christopher C. Conner

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    May 17, 2012

                      Before: SMITH and FISHER, Circuit Judges
                            and STEARNS, District Judge

                                 (Filed: May 24, 2012)
                               _____________________

                                      OPINION
                               _____________________
SMITH, Circuit Judge.

      Jose    Ortiz, following his arrest, was indicted for one count of unlawful

distribution and possession with the intent to distribute 100 grams or more of heroin, in

violation of 21 U.S.C. § 841(a)(1) (“Count I”) and one count of unlawful possession of a




 The Honorable Richard G. Stearns, United States District Judge for the United
States District Court of Massachusetts, sitting by designation.
handgun by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count

II”). Prior to trial, Ortiz moved to suppress certain evidence on the basis that his

warrantless arrest and the warrantless search of his garage and home were unlawful. The

District Court, following a suppression hearing, denied Ortiz’s motion.

       Ortiz entered into a conditional plea agreement with the government, which

required him to plead guilty to Counts I and II but allowed him to subsequently appeal

the District Court’s denial of his motion to suppress. Ortiz pled guilty pursuant to the

conditional plea agreement and appealed the denial of his motion to suppress. We will

affirm.1




1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
        We review the District Court’s findings of fact at the suppression hearing for clear
error, but we generally exercise plenary review as to the District Court’s application of
the law to those facts. See United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003). The
determination of what constitutes a home’s curtilage is “essentially factual and therefore
we review only for clear error.” United States v. Benish, 5 F.3d 20, 23-24 (3d Cir. 1993)
(quotation marks and citation omitted). Similarly, we also review for clear error a
District Court’s determination that consent to search was voluntarily given. See United
States v. Kim, 27 F.3d 947, 954-55 (3d Cir. 1994); United States v. Price, 558 F.3d 270,
278 n.7 (3d Cir. 2009). We review determinations of probable cause de novo. See
United States v. Whitfield, 634 F.3d 741, 743-44 (3d Cir. 2010).

                                             2
                                             I.

       At the suppression hearing, four police officers who were members of the York

County Drug Task Force — Sean Wolf, Craig Fenstermacher, Scott Nadzom, and Kenny

Hassinger — testified for the government. Wolf testified that, on March 10, 2010, a

cooperating confidential informant (the “CI”) arranged to meet Ortiz for the purpose of

purchasing heroin. This meeting was to take place at a garage Ortiz owned that was

located at 100 Church Avenue, York, Pennsylvania (the “Church Avenue Garage”).2

Prior to the anticipated transaction, the officers searched the CI to ensure that he did not

have any money or contraband, gave the CI $1,100 to conduct the controlled buy, and

positioned themselves around the Church Avenue Garage to conduct surveillance.

       Nadzom testified that he witnessed the CI walk into the Church Avenue Garage

and close the door. After a few minutes, the CI exited the Church Avenue Garage and

walked to Fenstermacher’s car. Fenstermacher testified that the CI turned over 150 bags

of heroin to him.

       Ortiz exited the Church Avenue Garage and stood in the fenced lot talking to a

neighbor. Nadzom gave the arrest signal and the officers entered the fenced lot to

execute the arrest. Ortiz was taken into custody, returned to the Church Avenue Garage,

handcuffed, and read his Miranda rights. After a search of Ortiz’s body incident to

arrest, the officers recovered the $1,100 that was given to the CI for the controlled

purchase. Ortiz verbally consented to a search of the Church Avenue Garage, and he


2
 The Church Avenue Garage is a stand-alone structure on a fenced lot and there are no
other structures on that lot.
                                             3
later verbally acknowledged that he had additional heroin, approximately $8,000 in cash,

and a handgun at his home. Ortiz’s home was located at 106 East College Avenue, York,

Pennsylvania, which was approximately three city blocks from the Church Avenue

Garage.

       The officers drove Ortiz to his home. There, the officers presented Ortiz with —

and read aloud to him — a consent to search form. The form listed the locations that

were to be searched as 106 East College Avenue and garage, the Church Avenue Garage,

and vehicles.   Ortiz signed the consent form and the officers conducted a search,

recovering additional evidence.3

                                            II.

                                            A.

       The Fourth Amendment to the United States Constitution protects against

“unreasonable searches and seizures[.]”      U.S. Const. amend. IV.       Absent exigent

circumstances, warrantless searches and seizures within a home are presumptively

unreasonable. See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). The protections

afforded to the home have been extended to the outdoor area surrounding the home

known as the home’s “curtilage.” See Oliver v. United States, 466 U.S. 170, 176 (1984);

see also United States v. Dunn, 480 U.S. 294, 300 (1987). In United States v. Dunn, the

Supreme Court set forth four factors for courts to consider when determining whether a


3
 Ortiz also testified at the suppression hearing. Notably, Ortiz testified that he told the
officers that he had drugs and a gun in his house only after the officers threatened to
damage his house. The District Court did not credit this testimony.

                                            4
particular area falls within a home’s curtilage. These factors are: (1) the proximity of the

area at issue to the home; (2) whether the area is included within an enclosure

surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps

taken by the resident to protect the area from observation. See Dunn, 480 U.S. at 301.

       Here, the District Court’s holding that Ortiz was not arrested within the curtilage

of his home was not clearly erroneous. As to the proximity between the Church Avenue

Garage and Ortiz’s home, the record demonstrates that the two were separated by several

city blocks and had separate addresses. Similarly, the Church Avenue Garage was not

within an enclosure surrounding Ortiz’s home. As to the nature and uses of the area, the

record does not demonstrate that Ortiz used the Church Avenue Garage for intimate

activities of the home. Finally, although Ortiz did take some steps to protect the Church

Avenue Garage area from observation by enclosing the lot with a 6-7 foot tall fence in

places and a 4-5 foot tall cinder block wall in other places, it is undisputed that a passerby

would have a clear view of portions of the fenced-in area as the officers did in the present

case. In sum, the Dunn factors weigh against finding that the Church Avenue Garage

was within the curtilage of Ortiz’s home. Thus, the District Court did not clearly err in

holding that the area where Ortiz was arrested was not entitled to the increased Fourth

Amendment protections afforded to homes.

                                             B.

       Probable cause exists when circumstances within a police officer’s knowledge are

sufficient to warrant a prudent person to conclude that a person has been or is committing

an offense. See Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Myers, 308 F.3d
                                              5
251, 255 (3d Cir. 2002).

       The record clearly demonstrates that Ortiz’s arrest was supported by probable

cause. Prior to the arrest, the CI identified Ortiz by a photograph as a person from whom

the CI had previously purchased drugs. The CI called Ortiz’s cell phone number and

arranged a time to meet with and purchase heroin from Ortiz at the Church Avenue

Garage. The officers searched the CI prior to the controlled buy to ensure that he was not

carrying any money or contraband. The officers gave the CI $1,100 in cash and observed

him walk into the Church Avenue Garage and exit a few minutes later. The CI returned

to the police with 150 bags of heroin. Ortiz exited the Church Avenue Garage and stood

in the fenced portion of the lot, where he was arrested. Based on the foregoing, a prudent

person could conclude that Ortiz sold the heroin to the CI. Thus, the District Court did

not err in holding that Ortiz’s arrest was supported by probable cause.

                                            C.

       When a party in control of an area gives the police consent to search, neither a

warrant nor probable cause is required to search that area.           See Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973); United States v. Price, 558 F.3d 270, 277 (3d Cir.

2009). The government has the burden of proving that the consent was “freely and

voluntarily given.” Price, 558 F.3d at 277. Voluntariness determinations are based on

the totality of the circumstances. See United States v. Kim, 27 F.3d 947, 955 (3d Cir.

1994) (listing circumstances to be considered as including, without limitation: the

accused’s age, education, intelligence, and whether he was advised of his constitutional

rights or subjected to repeated and prolonged questioning).
                                             6
       The District Court did not clearly err when it held that Ortiz voluntarily consented

to the search of his home and garage, the Church Avenue Garage, and his vehicles. The

record supported that the officers maintained a conversational tone with Ortiz and that all

weapons were holstered while the officers sought consent to search. The record supports

a finding that the officers read Ortiz his Miranda rights and the consent form, and that

Ortiz understood that the officers sought his permission to search his house and other

areas. Although Ortiz was handcuffed, the record supports that he was treated in a

courteous manner, remained cooperative, and that only approximately 15 minutes elapsed

from the time that Ortiz was arrested to when he signed the consent form. Thus, based on

the totality of the circumstances, the District Court did not clearly err in holding that

Ortiz voluntarily consented to the search and that no search warrant was required.

       Accordingly, we will affirm.




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