Filed: Oct. 04, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 10-4-2004 USA v. Gallo Precedential or Non-Precedential: Non-Precedential Docket No. 04-1260 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Gallo" (2004). 2004 Decisions. Paper 260. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/260 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 10-4-2004 USA v. Gallo Precedential or Non-Precedential: Non-Precedential Docket No. 04-1260 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Gallo" (2004). 2004 Decisions. Paper 260. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/260 This decision is brought to you for free and open access by the Opinions of the United States Co..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-4-2004
USA v. Gallo
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1260
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"USA v. Gallo" (2004). 2004 Decisions. Paper 260.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/260
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-1260
UNITED STATES OF AMERICA
v.
FRANCIS ALBERT GALLO,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. No. 03-cr-00113
District Judge: The Honorable Alan N. Bloch
_________________
Submitted Pursuant to Third Circuit LAR 34.1
October 1, 2004
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Filed: October 4, 2004)
_________________
OPINION OF THE COURT
_________________
SMITH, Circuit Judge.
This case involves Defendant Francis Albert Gallo’s conditional guilty plea to one
of two federal drug charges. Gallo sold cocaine at his residence to a confidential
government informant, and a warrant was issued for his arrest. Roughly three weeks after
the first sale, Gallo received $1,000 for cocaine at his residence from the same informant.
That same day, a search of his residence pursuant to a warrant turned up more cocaine.
Gallo pleaded guilty to a federal charge based on the first controlled buy. Having
unsuccessfully moved to suppress the cocaine found in his residence supporting a second
charge, however, Gallo entered a conditional plea of guilty to the second charge. He now
timely appeals the district court’s denial of his properly preserved suppression motion.
We will affirm.1
I.
On November 20, 2002, members of the Pennsylvania State Police used a
confidential informant to purchase one ounce of cocaine from Gallo at his residence.
Based on this transaction, on December 10, 2002, a Commonwealth of Pennsylvania
district justice issued a criminal complaint, accompanied by an arrest warrant, charging
Gallo with violations of Pennsylvania drug laws. Later that day, officers attempted
another controlled purchase from Gallo at his residence. This time, the confidential
informant gave Gallo $1,000 in marked state funds, but received no cocaine in return.
Still later on December 10th, in part based on the partial transaction of earlier in
the day, State Police filed an affidavit of probable cause and secured a search warrant for
1
The District Court had jurisdiction over this case under 28 U.S.C. § 3231. Under 28
U.S.C. § 1291, this Court has jurisdiction over the District Court’s final judgment of
conviction and sentence.
2
Gallo’s residence from a state district justice. Officers executed the search warrant that
same day, finding in Gallo’s residence: ziplock bags, bottles containing white powder
and white powder residue, an electronic scale, a strainer containing white powder residue,
and “owe sheets” records of drug debts. The white powder was later tested and
confirmed to be 783 grams of cocaine.
Gallo was charged with two counts of violating federal drug laws. The first count
stemmed from the controlled buy of November 20th. The second count stemmed from
cocaine seized in the search of Gallo’s residence on December 10th.
Gallo moved to suppress the evidence supporting the second count against him,
claiming that the affidavit in support of the search warrant for his house did “not set forth
facts . . . which in fact constitute probable cause” that cocaine was in his residence. The
District Court denied the motion. Gallo pleaded guilty to the first count and, preserving
his right to appeal denial of his motion to suppress, conditionally pleaded guilty to the
second count. 2
II.
“When a district court, in reviewing a magistrate’s determination of probable
cause, bases its probable cause ruling on facts contained in an affidavit, we exercise
2
See Fed. R. Cr. P. 11(a)(2) (“With the consent of the court and the government, a
defendant may enter a conditional plea of guilty . . . reserving in writing the right to have
an appellate court review an adverse determination of a specified pre-trial motion.”).
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plenary review over the district court’s decision.” United States v. Conley, 4 F.3d 1200,
1204 (3d Cir. 1993). However, “both we and the district court exercise only a deferential
review of the initial probable cause determination made by the magistrate.”
Id. at 1205
(citing Illinois v. Gates,
462 U.S. 213, 236 (1983)). “The duty of a reviewing court is
simply to ensure that the magistrate had a ‘substantial basis for . . . concluding’ that
probable cause existed.”
Id., quoting Gates, 462 U.S. at 238. “Keeping in mind that the
task of the issuing magistrate is simply to determine whether there is a fair probability
that contraband . . . will be found in a particular place, a reviewing court is to uphold the
warrant as long as there is a substantial basis for a fair probability that evidence will be
found.”
Id. (citations omitted). See also United States v. Hodge,
246 F.3d 301, 305 (3d
Cir. 2001) (same).
Gallo offers several reasons for his claim that the District Court erred in finding a
substantial basis for the district justice’s determination that a fair probability existed that
cocaine would be found in Gallo’s residence. Gallo further maintains that the good faith
exception to the exclusionary rule, first enunciated in United States v. Leon, 468 U.S. 897
(1984), did not justify the search of his residence. We take his arguments in turn.
Gallo contends that a partial transaction, as occurred between Gallo and
Pennsylvania State Police on December 10th, does not support finding a fair probability
that cocaine would be found in his residence. We do not need to decide whether this is
true, for, as the District Court noted, the partial transaction of December 10th was only
4
one element of the government’s three-pronged rationale for seeking a search warrant. In
addition to the partial transaction of December 10th at Gallo’s residence, the
government’s affidavit of probable cause also cited the completed transaction on
November 20th at Gallo’s residence and the outstanding arrest warrant for Gallo. Taken
together, we believe these three factors easily constitute a substantial basis for the
magistrate’s finding of a fair probability that contraband would be found in Gallo’s
residence.
While probable cause is a “fluid concept – turning on the assessment of
probabilities in particular factual contexts,” Illinois v. Gates, 462 U.S. at 238, numerous
cases support our conclusion. To begin, one of our sister circuits “consistently” has
recognized that probable cause exists where a reliable informant’s tip is corroborated by a
single controlled buy of illegal narcotics. United States v. Warren,
42 F.3d 647, 652
(D.C. Cir. 1994), citing, inter alia, United States v. Allen,
960 F.2d 1055, 1057 (D.C.
Cir.), cert. denied,
113 S. Ct. 231 (1992). That a reliable informant’s tip was
corroborated by a single controlled buy certainly seems to be the situation here. Gallo
disagrees, however, suggesting for the first time that there was nothing to indicate the
reliability of the confidential informant.3
3
As Gallo raises this argument for the first time on appeal, we review the district
court’s decision about the reliability of the informant for plain error. See United States v.
Torres,
209 F.3d 308, 313 (3d Cir. 2000) (“Where, as here, a defendant did not at
sentencing raise the issue of his or her inability to pay, a sentencing court’s decision to
fine and the amount of the fine is reviewed for plain error.”); Fed. R. Cr. P. 52(b).
5
Unlike Gallo, we think that “the district justice had a readily proven method for
establishing the informant’s reliability: the informant’s surveilled actions as reported in
the affidavit.” Brief for the United States at 22 n.2. As the District Court noted, the
affidavit of probable cause stated that the confidential informant successfully completed a
controlled buy with Gallo and provided him with $1,000 in marked funds during a
second, attempted buy. Far from plain error, we conclude that the record supports the
District Court’s decision to credit the confidential informant by virtue of the successful
controlled buy and the partial transaction. See United States v. McKinney, 143 F.3d 325,
329 (7th Cir. 1998) (“[Defendant] complains that the informant was new to police and
untested, and therefore unreliable. Rather than simply relying on the informant’s tip
alone, however, police boosted the informant’s reliability with the controlled buys.
Controlled buys add great weight to an informant’s tip.”) (emphasis added).
Gallo insists that by the time the district justice reviewed the affidavit of probable
cause on December 10th, the information concerning the November 20th controlled buy
had grown stale. Here again, we disagree. Gallo is correct that “age of the information
supporting a warrant application is a factor in determining probable cause.” See United
States v. Forsythe, 560 F.2d 1127, 1132 (3d Cir. 1977). But, as the government notes and
as Gallo concedes, “age alone does not determine staleness. ‘The likelihood that the
evidence sought is still at the place to be searched depends on a number of variables, such
as the nature of the crime, of the criminal, of the thing to be seized, and of the place to be
6
searched.’” Brief for the United States at 21, quoting United States v. Tehfe, 722 F.2d
1114, 1119 (3d Cir. 1983). As the District Court noted, “in investigations of ongoing
narcotics operations intervals of weeks or months between the last described act and the
warrant application [do] not necessarily make the information stale.” Dist. Op. at 5
(citing United States v. Smith,
9 F.3d 1007, 1014 (2d Cir. 1993)).
Yet, Gallo cites “age alone” to argue that the government’s case for probable cause
had grown stale. This will not suffice. We conclude that the District Court had a
substantial basis for its decision that the first controlled buy had not grown stale when the
partial transaction occurred and the affidavit of probable cause was presented on
December 10th.
The government’s possession of an arrest warrant for Gallo further reinforces this
conclusion. As the District Court correctly noted, “[w]hile probable cause to arrest does
not automatically provide probable cause to search the arrestee’s home, probable cause to
arrest increases the likelihood that the arrestee’s residence contains evidence of a crime.”
Dist. Op. at 4, citing United States v. Jones, 994 F.2d 1051, 1055-56 (3d Cir. 1993).
Taking the government’s possession of an arrest warrant together with the November
20th controlled purchase at Gallo’s residence and the December 10th partial transaction at
Gallo’s residence, we conclude the District Court had more than a substantial basis for its
finding of a fair probability that Gallo’s residence contained cocaine.
Finally, even if no substantial basis existed in this case, Gallo has offered nothing
7
of substance to dispute that the officers searching his home executed the warrant in good
faith. Under United States v. Leon, when an officer acts in the objectively reasonable
belief that his conduct does not run afoul of the Fourth Amendment, the marginal benefits
from suppressing the evidence do not match up to the substantial costs of excluding it.
468 U.S. at 922. In deciding whether the good faith exception applies, we ask “whether a
reasonably well trained officer would have known that the search was illegal despite the
magistrate’s authorization.” United States v. $92,422.57,
307 F.3d 137, 145-46 (3d Cir.
2002) (quoting United States v. Loy,
191 F.3d 360, 367 (3d Cir. 1999)).
Typically, the mere fact that an officer has obtained a search warrant is sufficient
to establish good faith. Hodge, 246 F.3d at 307-08. We have identified four
circumstances in which an officer’s reliance on a warrant is unreasonable:
(1) [when] the magistrate [judge] issued the warrant in reliance on a deliberately or
recklessly false affidavit;
(2) [when] the magistrate judge abandoned his judicial role and failed to perform
his neutral and detached function;
(3) [when] the warrant was based on an affidavit ‘so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable’; or
(4) [when] the warrant was so facially deficient that it failed to particularize the
place to be searched or the things to be seized.
Id. at 308.
None of these circumstances exists here. Though Gallo argues that the district
justice abandoned his judicial role and failed to perform his neutral and detached function
– the second circumstance listed above – he offers no factual support for this claim.
Instead, he circles back to his argument that probable cause was lacking. Thus, Gallo
8
essentially frames an objection under the third circumstance listed above. Accordingly,
we will consider whether the affidavit in this case was “so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable.” Id.
This question is easily answered. “As our probable cause analysis has already
shown, [the government’s] affidavit ‘was not a bare bones document’ but contained
sufficient indicia of probable cause to support [the district justice’s] finding of probable
cause. . . . Once the [district justice] made that call, it was objectively reasonable for the
officers to rely on it.”
Id. at 309 (citations omitted). Indeed, “we view the affidavit as
making a substantial showing of probable cause on which it was objectively reasonable
for the officers to rely.” United States v.
$92,422.57, 307 F.3d at 147.
For the foregoing reasons, we conclude that the District Judge had a substantial
basis for deciding there was a fair probability that evidence would be found in Gallo’s
residence. Conley, 4 F.3d at 1205. We also conclude that there was ample evidence that
the Pennsylvania State Police searched Gallo’s residence in good faith. Accordingly, we
affirm the judgment of the District Court.
9
