The opinion of the court was delivered by: Pollak, J.
Quinton Wallace has been charged in a four-count indictment with (1) possession of marijuana with the intent to distribute; (2) possession of marijuana with the intent to distribute within 1000 feet of a school; (3) possession of a firearm in furtherance of a drug trafficking crime; and (4) being a felon in possession of a firearm. He was arrested after his residence at 5509 Lansdowne Avenue, Philadelphia, was searched, pursuant to a search warrant, by agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") on January 11, 2008. The searching officers uncovered the firearms and narcotics that form the basis of the indictment. Now before the court is defendant's motion to suppress the evidence seized, which argues that the affidavit underlying the search warrant did not provide the necessary probable cause for the warrant to issue.
The affidavit in support of the application for a search warrant was written by Gary Malone, a special agent with ATF. Agent Malone is assigned to the Philadelphia field office, and had been for three years at the writing of the affidavit on January 10, 2008. He was investigating a drug distribution organization known the Lansdowne Avenue Gang when he sought this warrant to search Wallace's residence.
The information in the affidavit is largely based on information provided to Agent Malone from a confidential source, referred to as C/S. C/S is a former low-level drug distributor who now works with law enforcement. Agent Malone noted that the C/S was a reliable ATF source, who has provided information in the past, much of which was verified by other sources and none of which was disproved. The affidavit does not indicate how long the C/S has been working with law enforcement or under what circumstances the cooperation began. The affidavit also does not provide any specifics about the information the C/S has provided in the past, other than noting that information provided by the C/S resulted in the seizure of at least three illegally obtained firearms and the arrest of a felon in possession of a firearm.
The C/S first provided information about Wallace on November 28, 2007, and it is unclear at what intervals the C/S provided information after this point. The information provided by the C/S included the following: Wallace lives at 5509 Lansdowne Avenue, in a white three-story row home with a big open lot to the west. The week of November 1, 2007, the C/S was inside the home and observed, in the 3d floor front bedroom, a black Ruger pistol, bulk quantities of marijuana, a scale, and items for packaging drugs.
The C/S learned from other sources that, after November 1, 2007, Wallace was the victim of a street robbery, where someone identified as Thomas Thomas took Wallace's Ruger pistol, demoralizing and embarrassing Wallace and making him very fearful of Thomas. The C/S also said that at some time between late November and December 15, 2007, Wallace and another person attempted to rob a drug house in the 5500 block of Oxford Street but "bit off more than [they] could chew" and were unsuccessful. Wallace apparently shot the window of the house before fleeing, and the C/S predicted that the unknown person who controls the drug house will at some point retaliate against Wallace for the shooting. It is not clear how the C/S learned about this robbery attempt. Agent Malone found no records of a person or house shot in that area during this time period, but he indicated his belief that "parties involved in such incidents do not contact the police due to their own criminal liability."
The C/S also told ATF that Wallace had been regularly selling drugs on the street from 4 p.m. to 2 a.m. for at least a year, but that Wallace became frightened after the unsuccessful robbery and so was afraid to leave his house; he instead sent his minor brother out to sell the drugs. The C/S saw Wallace at the entrance of his residence on January 6, 2008 with a new silver pistol. On January 9, 2008, the C/S went to Wallace's residence and learned that Wallace was expecting a delivery of bulk crack cocaine and marijuana in the near future. It is not clear whether the C/S spoke to Wallace to learn this information or whether it came from another source.
Agent Malone drove to the address given by the C/S and confirmed that the house resembled the description given. A records check revealed that an individual named Michael Vann aka Tony Vaughn had given that address as his own. Vann has a previous Philadelphia Court of Common Pleas conviction for possession with the intent to distribute a controlled substance.
Agent Malone concluded his affidavit with the following: Your affiant has received accurate, consistent, and updated information relative to a convicted felon in possession of a "new" firearm on two occasions. Your affiant will note that information provided by the informant has resulted in the seizure of numerous firearms on two prior occasions. It is your affiant's belief that this information is accurate and credible. The reasons for my belief are that the observations are made by the informant and not based on hearsay and further that this is a proven reliable source of information which has been continually corroborated. It is also your affiant's belief that it is the duty of Law enforcement to seize the illegal firearm possessed/in control of Quinton Wallace and possibly available to Michael Vann. In your affiant's experience, persons who can obtain firearms quickly and who are willing to use them, as Wallace has shown, are more likely to use a firearm when in fear of both harassment and or retaliation within their own neighborhoods. Wallace fits both of the aforementioned categories.
Agent Malone then averred that a search of 5509 Lansdowne Avenue would yield evidence of violations of firearms and drug laws, and he sought permission to search the residence. Magistrate Judge M. Faith Angell found that the affidavit supported a finding of probable cause and granted the application. The warrant was executed on January 11, 2008.
The review of the warrant is somewhat limited; the question is whether "the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993) (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)). Probable cause must be evaluated in light of the totality of ...