                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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NOT PRECEDENTIAL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.”).


                                              3
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
