United States v. Tafari Richardson ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3080
___________
UNITED STATES OF AMERICA
v.
TAFARI RICHARDSON,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-09-cr-00536-001)
District Judge: Honorable James Knoll Gardner
Submitted under Third Circuit LAR 34.1(a)
on April 29, 2011
Before: SLOVITER, GREENAWAY, JR. and ROTH, Circuit Judges
(Opinion filed: September 28, 2011)
OPINION
ROTH, Circuit Judge:
Tafari Richardson appeals from his judgment of conviction for distribution and
possession of cocaine base as well as possession of a firearm in furtherance of a drug-
trafficking crime. 1 He contends that the drugs and gun seized from his mother’s house at
the time of his arrest should have been suppressed, because his mother’s consent to the
search was invalid. For the reasons that follow, we will affirm the judgment of the
District Court.
I. Background
Around 6:00 a.m. on August 18, 2009, ten law enforcement officers convened at
135 West Green Street, Reading, Pennsylvania, to execute an arrest warrant issued in
connection with federal drug charges against Richardson. The commanding officer at the
scene was Bureau of Alcohol, Tobacco and Firearms (ATF) Special Agent Neil Zubaty.
The officers knocked and announced their presence. After a short wait, they used a
battering ram to enter the house.
As the officers entered the residence, they directed several occupants – including
Marie Richardson, Tafari’s mother – to come down the stairs and sit in the living room.
Two or three of the officers remained in the living room, while another four or five went
upstairs to search for Tafari Richardson.
On the second floor, one officer went into Marie Richardson’s bedroom. He
seized two bags of marijuana from a drawer in her bed’s headboard. The officer then
1
Richardson also sought to preserve an objection to his sentence for violating 18
U.S.C. § 924(c), pending the Supreme Court’s review of Abbott v. United States, 574
F.3d 203 (3d Cir. 2009). The Supreme Court has now affirmed Abbott, concluding that
“a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction,
and is not spared from that sentence by virtue of receiving a higher mandatory minimum
on a different count of conviction . . . unless another provision of law directed to conduct
proscribed by § 924(c) imposes an even greater mandatory minimum.” See Abbott v.
United States, __ U.S. __, 131 S. Ct. 18, 23 (2010). This avenue of appeal, therefore,
remains foreclosed.
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went downstairs and asked her if the marijuana belonged to her. She acknowledged it
did. She asked the officer whether she was going to be arrested for it. The officer,
without responding one way or the other, went outside.
On the third floor, Special Agent Charles Bowman and another officer located
Tafari Richardson in a bedroom. They handcuffed him and placed him under arrest. As
the officers brought him down the stairs, Agent Zubaty entered the residence. Zubaty
informed Richardson that he was under arrest pursuant to a federal warrant. Richardson
remained silent.
After Richardson was taken outside, Agents Zubaty and Bowman left the house to
lock their assault weapons in their cars. They returned to the house with only their
handguns, which were holstered. When Zubaty reentered, he asked Marie Richardson to
come into the kitchen. Bowman joined them in the kitchen shortly thereafter.
In the kitchen, Zubaty and Marie Richardson sat together at the kitchen table, as
Bowman waited nearby. Zubaty first explained to Marie Richardson the reason for law
enforcement’s presence. He informed her that he had an arrest warrant for her son and
that her son had been arrested and removed from the premises. Zubaty then inquired
about Marie Richardson’s relationship to the house. She responded that her name was on
the lease and that she had lived there for seven or eight years. Zubaty asked her if the
officers could look around her son’s room. She said, “Yes.” Zubaty handed Marie
Richardson a consent to search form and explained the form to her. He told her, in
substance, that if she did not sign the form seeking consent to search, the officers could
not search. Marie Richardson could not see the form clearly because she was not wearing
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her contacts. Nevertheless, she signed it and did not ask any questions. After the
exchange in the kitchen, the officers searched the bedroom in which they had found
Tafari Richardson. Near the bed, the officers seized more than 50 grams of crack cocaine
and a loaded Glock Model 30 .45 caliber semiautomatic pistol.
Richardson was indicted for distribution of five grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), possession with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1),(b)(1)(A), and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1). He moved to suppress the evidence seized from his bedroom.
The District Court held a suppression hearing, at which it received testimony from
Agents Zubaty and Bowman, as well as from Marie Richardson. At the conclusion of the
hearing, the District Court denied in part and granted in part the motion to suppress.
Even though the government had not sought to admit any evidence of the marijuana, the
District Court found that the agents had illegally searched and seized marijuana from a
drawer in Marie Richardson’s headboard. The District Court, however, denied the
motion to suppress the remaining evidence. The court concluded that Ms. Richardson
had voluntarily consented – both verbally and in writing – to the search of Tafari
Richardson’s bedroom.
On March 4, 2010, Richardson pled guilty to the charges in the indictment. On
July 7, 2010, he was sentenced to 190 months imprisonment. 2
2
Richardson has filed a motion, requesting the removal of his counsel, Mark S.
Fisher. One ground which Richardson cites in support of removal is counsel’s failure to
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II. Discussion
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. §§ 1291 and 3742(a). We review a district court’s
denial of a motion to suppress under a mixed standard, which requires us to review
findings of fact for clear error and exercise plenary review over its legal conclusions. See
United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 2010). The totality of the
circumstances test used to evaluate voluntariness is a question of fact, and thus reviewed
for clear error. See United States v. Givan, 320 F.3d 452, 459 (3d Cir. 2003).
Richardson contends that his mother’s consent was invalid because – at the time –
she had just been sleeping, was taking anti-depressive as well as sleeping medication,
was unable to read the consent form without her contact lenses, and feared prosecution in
addition to loss of her subsidized housing.
As “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006), the requirement of a warrant to
perform searches and seizures inside a home “is subject to certain reasonable
exceptions.” Kentucky v. King, __ U.S. __, 131 S. Ct. 1849, 1856 (2011). “‘It is . . . well
settled that one of the specifically established exceptions . . . is a search that is conducted
pursuant to consent.’” United States v. Price, 558 F.3d 270, 277 (3d Cir. 2009) (quoting
seek a reduction of Richardson’s sentence under the Fair Sentencing Act (FSA). The
FSA was signed into law on August 3, 2010, and applies to defendants sentenced on or
after that date. Because Richardson was sentenced on July 7, 2010, he is not eligible for
relief under the FSA and his contention is without merit. This motion will be denied, as
will Richardson’s related motions for withdrawal of the second issue on appeal and for
permission to file a supplemental brief.
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Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). The Government bears the
burden of establishing the voluntariness of the consent to search. Id. at 277-78. To
determine whether consent was voluntary, courts “examin[e] the totality of the
circumstances.” United States v. Stabile, 633 F.3d 219, 230-31 (3d Cir. 2011); see also
United States v. Crandell, 554 F.3d 79, 88 (3d Cir. 2009).
We conclude that the District Court properly held that Marie Richardson
voluntarily consented to the search of her son’s bedroom. Although the District Court
noted that Marie Richardson was tired and nervous, it found as a matter fact that “she was
coherent and had an understanding of what was happening in connection with the request
to search and her son’s arrest.” In other words, “she was not too affected by her
medication to be fully aware of the nature of her right to deny the search . . ..” The
District Court elaborated that her “actions and demeanor were polite and responsive and
cooperative,” further supporting her capacity to consent. While recognizing that Marie
Richardson was unable to read the consent form without her contact lenses and was not
informed of the full extent of her constitutional rights, the District Court nevertheless
found that “she understood that the officers needed her consent to search or else they
could not search.” See Price, 558 F.3d at 279. Finally, the District Court noted that the
agents, in seeking consent, did not mention the marijuana seized from her bedroom, and,
as a result, she did not feel “overwhelmed [or] coerced” by that fact.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
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