NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 05-1489

U N I T E D STATES OF AMERICA

v. J O S E P H GRIESBAUM,

Appellant

O n Appeal from the United States District Court

f o r the Western District of Pennsylvania

D .C . Criminal No. 04-cr-0006E

(H o n o ra b le Sean J. McLaughlin)

S u b m itte d Pursuant to Third Circuit LAR 34.1(a)

F e b ru a ry 14, 2006

B e f o re : SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges

(F ile d June 21, 2006

O P IN I O N OF THE COURT

S C IR IC A , Chief Judge.

A p p e lla n t Joseph Griesbaum appeals his judgment of conviction, claiming the

D is tric t Court erroneously denied his motion to suppress evidence obtained during a

s e a rc h of his home. We will affirm.

I.

B e c a u se we write only for the benefit of the parties, a brief recitation of the facts w ill suffice. The Girard, Ohio Police Department began investigating Joseph Griesbaum in 2003 for possible sales of methamphetamine. On August 18, 2003, an undercover o f f ic e r and confidential informant went to Griesbaum's home to buy methamphetamine.

Griesbaum agreed to a sale, and told both men to return another time because the m e th a m p h e ta m in e was not yet ready. They returned on September 5, 2003. Griesbaum p ro d u c e d a jar containing methamphetamine, smoked some, sold to both men $50.00 w o rth of the drug, and explained he would be using the money to produce more m e th a m p h e ta m in e .

On December 5, 2003, after an eight-week surveillance of Griesbaum's house, two o f f ic e rs approached Griesbaum and told him they needed to speak privately with him.

After another officer, Chief Nick VanDamia, arrived, Griesbaum invited them to his d e ta c h ed garage, where they told him he had sold methamphetamine to an undercover o f f ic e r and confidential informant. Griesbaum admitted suspecting they were undercover o f f ic e rs , and recounted the incident for them.

G rie sb a u m alleges that Chief VanDamia told him he could either cooperate--and th a t cooperation would be made known to the prosecuting attorney and the sentencing ju d g e -- o r be arrested immediately for the September 5th sale. Contending he believed he w o u ld escape punishment if he cooperated, Griesbaum agreed, and identified other local d ru g dealers. Afterward, the officers accompanied Griesbaum to the kitchen because he w a n te d to tell his mother he had agreed to cooperate. She admitted her son's involvement w ith methamphetamine activity, and did not object to Griesbaum's cooperation.

D u rin g Griesbaum's conversation with his mother, Chief VanDamia noticed G rie b sa u m ' s five-year-old daughter in the house. VanDamia asked if there were any c h e m ic a ls in the house. Griesbaum responded there were chemicals locked in a cabinet.

VanDamia asked to see them. When Griesbaum refused, saying "he didn't want to get in a n y more trouble," VanDamia responded that the chemicals could pose a danger to his d a u g h te r, that he had enough information to get a search warrant, and that Griesbaum c o u ld be prosecuted for anything found. VanDamia advised Griesbaum that consenting to th e search would be considered part of his cooperation.

A g re e in g to the search, Griesbaum led the officers to his living room, where he o p e n e d the cabinet and began to inventory the methamphetamine-manufacturing supplies.

Chief VanDamia called an agent from the Northwest Drug Task Force, Agent Randall S h irra , who advised VanDamia to evacuate the house and secure the perimeter until a re sp o n se team could arrive to search the house and destroy the chemicals. VanDamia e v a cu a te d Griesbaum's home, handcuffed Griesbaum, and took him to the Girard Police S ta tio n where, at VanDamia's request, Griesbaum read and signed a consent to search f o rm . VanDamia time-stamped the form to coincide with Griesbaum's oral consent.

A f te r Shirra informed VanDamia that Griesbaum was an Erie County, P e n n s ylv a n ia probationer, VanDamia arrested Griesbaum for probation violations. From th a t point on, Girard police officers had no further involvement with Griesbaum--they d id not use him as an informant, nor did they use any of the information he gave them.

G rie sb a u m was indicted on seven counts for various drug violations. Griesbaum m o v e d to suppress the evidence seized from his home, claiming he had not voluntarily c o n se n te d to the search, and contending his agreement to the officers' search was granted in submission to a claim of authority. He also argued police falsely represented his c o n se n t would be viewed as evidence of his cooperation, which would eventually benefit h i m . The District Court denied the motion to suppress.

G rie sb a u m conditionally pled guilty to intentionally manufacturing m e th a m p h e ta m in e in violation of 21U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18U.S.C. § 2 , reserving the right to appeal the District Court's denial of his suppression motion. He ac ce p ted responsibility on the following counts: attempt to manufacture m e th a m p h e tam in e in violation of 21U.S.C. § 846, possession with intent to distribute m e th a m p h e ta m in e in violation of 21U.S.C. §§ 841(a)(1), 841(b)(1)(C), possession of a lis t I chemical with intent to manufacture methamphetamine in violation of 21U.S.C.

8 4 1 (c)(1), and possession of a list II chemical with intent to manufacture m e th a m p h e tam in e in violation of 21U.S.C. § 841(c)(1). The District Court accepted his p le a , and sentenced him on January 28, 2005 to sixty months imprisonment and to three ye a rs supervised released. Griesbaum timely appealed.

II.

W e review the District Court's denial of a motion to suppress for "clear error as to th e underlying facts," but we exercise "plenary review as to its legality in light of the c o u rt's properly founded facts." United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003) (c itatio n s omitted); see also United States v. Mitlo, 714 F.2d 294, 296 (3d Cir. 1983).

Griesbaum alleges the District Court committed factual error in finding his consent v o lu n tar y. The Court erred, he argues, by failing to find the officers' statements (e n c o u ra g in g Griesbaum's cooperation) vitiated his consent, and by failing to draw the p ro p e r conclusions from the "totality of the circumstances." U n d e r the clear error standard, we will uphold the District Court's factual findings u n le ss they are "completely devoid of minimum evidentiary support displaying some hue o f credibility," or "bear[ ] no rational relationship to the supportive evidentiary data." United States v. Antoon, 933 F.2d 200, 204 (3d Cir. 1991). On this record, there is ample e v id e n tiary support for the District Court's findings, and those findings were rationally re la te d to the evidence.

In its Order, the District Court found as a factual matter that at no time during the encounter was the defendant's c o o p e ra tio n obtained or consent obtained by any specific promises or im p lic it promises. The most that the defendant was told was that any c o o p e ra tio n would be revealed to the district attorney or appropriate a u th o ritie s . The defendant's own statements support this conclusion. He te s tif ie d that no police officer told him that he wouldn't have any problem.

He had independently surmised that cooperation could prove useful to him b a se d upon his knowledge of a confidential informant who had cooperated a n d apparently remained out of jail. He further testified that no officer in f o rm e d him that his charges would be dismissed. He further testified that h e was never promised anything in return for his cooperation.

G r ie s b a u m argues he initially refused to consent to a search of his house because h e wanted to avoid "get[ting] into anymore trouble" (Appellant Br. 36), and therefore the o f f ic e rs ' representations to Griesbaum amounted to a promise that he would benefit from th e cooperation.1 B u t at his suppression hearing, Griesbaum stated the officers never specifically to ld him he was going to be "totally off." (App. 95.) He admitted he did not "recall e x a c tly how they said" his cooperation would help. (Id.) He admitted he decided to c o o p e ra te "not based on anything law enforcement ever did," but because he "figured in [ h is] own mind that another cooperator got off and [he] hoped that the same thing would h a p p e n to [him]." (App. 31.) These admissions offer strong support for the District C o u rt's findings. Under the clear error standard those findings bear a "rational re la tio n s h ip " to the record.2 G riesb au m also argues that under United States v. Sebetich, 776 F.2d 412 (3d Cir. 1 9 8 5 ), and United States v. Molt, 589 F.2d 1247 (3d. Cir. 1978), a police officer's m isre p re se n tatio n weakens a claim of voluntary consent. Even if we believed statements m a d e by the officers in this case were misrepresentations--and we do not--nothing in eith er Sebetich or Molt requires us to hold the District Court committed clear error. In M o lt, we declined to reverse the district court's holding--under the clear error s ta n d a rd -- th a t a defendant did not voluntarily consent to a search. There, we noted a m isrep rese n tatio n that compels consent will weigh strongly against a finding of voluntary c o n se n t. 589 F.2d at 1251-52. But VanDamia made no misrepresentation, and no s ta te m e n t made by any officer was coercive. Nothing in Molt compels a finding of error in this case.

In Sebetich, we held the district court failed to make specific findings relevant to th e search and seizure of a defendant who had been convicted of robbery. We noted the tro u b lin g nature of an alleged statement by an officer seeking, from the defendant's m o th e r, consent to a search of the defendant's home. The officer, in response to a q u e stio n from the defendant's mother, allegedly said things would "go easier" on the d e f en d a n t if his mother consented to the search--and never mentioned he had already o b ta in e d a warrant. 776 F.2d at 423. On the one hand, because the statement, if made, d id not appear to be "well-founded," it would "militate against a finding of consent." Id. a t 425 n.21. On the other, because the defendant's mother raised the issue, that factor " su g g e st[ e d ] her willingness." Id. Unlike Sebetich, here the District Court's findings are e x p lic it and clear. And unlike Sebetich, Griesbaum himself had willingly cooperated with o f f ic e rs who were ignorant of his status as a probationer. Any statements made by the o f f ic e rs to Griesbaum in this context would seem to be "well-founded" and reasonable, u n lik e the possibly duplicitous action taken by the officers in Sebetich.

G rie sb a u m also argues his consent was invalid because it was based solely on V a n D a m ia 's assertion of authority. His argument centers around VanDamia's statement th a t "with the information that we had and the information he had given us that he did in f a ct have chemicals in the house, that we could go and obtain a search warrant and search th e house." (App. 52.) According to Griesbaum, VanDamia "let it be known that he co u ld go back and get a search warrant right then, so it really didn't matter." (App. 98.) Because Griesbaum "only consented" to the search based on this "claim of authority," he c la im s the search was invalid.

G rie sb a u m argues the District Court either misunderstood or misapplied the o p e ra tiv e legal standard. Citing authority from both the Supreme Court and this Court, th e District Court held, In my view the statement by Police Chief Van Damia that a warrant c o u ld be obtained does not per se vitiate the voluntariness of the consent in this case. Neither Molt nor Sebetich so hold. Nor does the defendant seem to suggest in his papers or at argument. I believe, therefore, that the well e sta b lis h e d totality of circumstances test here must be applied to gauge the q u a lity of the defendant's consent in this case. . . .

While he was informed that a search warrant could be obtained, w ith o u t trying to parse this too finely, I note that he was not informed, for in s ta n c e, that one would be obtained.

A r g u in g the District Court used the incorrect legal standard, Griesbaum claims V a n D a m ia 's statement implied obtaining a warrant was a foregone conclusion, making G rie sb a u m ' s consent invalid.

A lth o u g h the cases Griesbaum cites articulate a clear principle--"Where there is c o e rc io n , there cannot be consent," Bumper v. North Carolina, 391 U.S. 543, 550 (1 9 6 8 )-- th e y do not create a per se standard that controls the outcome in this case.

Rather, these cases repeatedly emphasize the need to view the consent standard in the " to ta lity of the circumstances." See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1 9 7 3 ) ("[T]he question whether a consent to a search was in fact `voluntary' or was the p ro d u c t of duress or coercion, express or implied, is a question of fact to be determined fro m the totality of all the circumstances.").

Griesbaum also asserts error in the District Court's holding that "there was independent, overwhelming probable cause" to obtain a warrant. (App. at 195.) Griesbaum argues the effect of Chief VanDamia's allegedly coercive statements cannot b e cured even if probable cause supported the issuance of a warrant.

As noted, we disagree with Griesbaum's assessment of the facts: the District Court d id not commit clear error when it found Chief VanDamia's statements were not inh ere n tly coercive and did not vitiate consent. We also disagree with Griesbaum's a rg u m e n t that the District Court's finding contradicts established Fourth Amendment law.

Citing to Johnson v. United States, 333 U.S. 10, 14 (1948), Griesbaum states "to view s u c h `consent' as voluntary and not coerced only because probable cause existed at the tim e undermines the protections of the Fourth Amendment and warrant issuing process." (A p p ellan t Br. 33.) But the District Court did not deem Griesbaum's consent voluntary "o n ly because probable cause existed at the time." The District Court's conclusions were in full accord with our observation in Sebetich: "Bumper does not establish a blanket rule th a t, whenever police possess an invalid search warrant or falsely claim that they can o b ta in one, voluntariness is necessarily vitiated; indeed Schneckloth mandates c o n sid e ra tio n of all the surrounding circumstances." 776 F.2d at 424. Even if the District C o u rt found VanDamia could not actually have obtained a warrant, the District Court w o u ld still be able to assess the nature of Griesbaum's consent after examining the to ta lity of the circumstances. We see no error here.

G rie sb a u m also argues that, under the totality of the circumstances, the g o v e rn m e n t failed to meet its burden of proof. Griesbaum argues the misrepresentations m a d e by officials to Griesbaum concerning the favorable consequences of consent, and G rie sb a u m 's "submission to a claim of lawful authority," both weigh heavily against a f in d in g of voluntary consent. He argues that his lack of a high school diploma, his minor c rim in a l record, his belief he would not be punished if he cooperated, and his initial re f u sa l to consent, all militate against a finding of voluntary consent.

W e disagree. As we have already said, under the clear error standard, the District C o u rt did not err in finding Griesbaum's consent was not based on any m is re p re se n ta tio n s. Even if we were to hold otherwise, we must still assess the District C o u rt's overall findings on consent under the clear error standard. We see no error.

In Schneckloth, the Supreme Court articulated some of the factors a court might ta k e into account in determining the voluntariness of consent under the "totality of c irc u m sta n c e s." An individual's age, his education, his intelligence, any advice given to h im about his constitutional rights, and the length and character of his detention are all f a c to rs a court might weigh. Schneckloth, 412 U.S. at 226. Here, the District Court cited th e "cordial" interaction between Griesbaum and the officers; the lack of "physical or v erb al threats" and the absence of "force or psychological intimidation"; VanDamia's s ta te m e n t to Griesbaum that he did not have to consent; his signing of a written consent f o rm ; his age, intelligence, and experience with the criminal justice system; the lack of m is re p re se n ta tio n by the officers; and the absence of any insistence that obtaining a w a rra n t was a foregone conclusion. (App. 194.) The District Court reasonably concluded co n sen t was voluntary based on the evidence in the record. We see no error.

I I I.

W e will affirm the judgment of conviction and sentence.

1 Specifically, Griesbaum contends the officers promised him if he cooperated (1) he w o u ld not be charged with a sale of fifty dollars worth of methamphetamine, (2) he would n o t be arrested, (3) his cooperation would help him, (4) that cooperation would be made k n o w n to authorities, and (5) his consent to a search would be part of his cooperation. Griesbaum argues that, despite his cooperation and consent to the search, police charged h im with the methamphetamine sale, arrested him, used his statements against him, never m a d e his cooperation known to the prosecuting attorney or the sentencing court, and re v o k e d his cooperation after the search.

2 Griesbaum also claims the reason given by the officers for declining to use Griesbaum a s an informant--that the officers learned, only after they surveyed the chemicals and c o n tac ted the search team, of his status as a probationer--is incredible, given the length o f their investigation and their success in already gaining both valuable information and h is consent for a search. But under the clear error standard, even if the officers' rationale w as questionable it would not alter our holding that the District Court's findings were ra tio n a lly related to the evidence. Whether the District Court could have come to a d if f e re n t conclusion is not the test.