The opinion of the court was delivered by: Stengel, J.
On October 6, 2010, Jean Joseph, a citizen of Haiti,*fn1
was indicted by a federal grand jury with six counts of
various drug and firearms offenses. He recently filed a motion to
suppress physical evidence to which the government has responded. I
held a hearing on the motion, and for the following reasons, I will
deny it in its entirety.
In September 2009, Detective Joseph Walsh of the Berks County District
Attorney‟s Office learned from a confidential source that an individual known to the source as "Shaka" was selling cocaine. At the hearing, Detective Walsh testified that on October 14, 2009, Detective Camilla Karns, a detective from his office working undercover, purchased four small bags of crack cocaine from the defendant for $60. The confidential source telephoned "Shaka" and arranged the deal. "Shaka" entered Detective Karns‟s car with the source and gave three bags of crack cocaine to the detective. Detective Karns asked the defendant to give her "extra" and he gave her a fourth bag. Other detectives had been conducting surveillance and observed the defendant exit the front door of an apartment building at 605 North 5th Street, in Reading, Pennsylvania, and walk to Detective Karns‟s car. Subsequent laboratory testing determined that the four purchased bags contained crack cocaine with an estimated weight of .46 grams.
Detective Walsh also testified that on December 23, 2009, he requested and obtained a "John Doe" state arrest warrant for the arrest of "Shaka" for violations of 35 P.S. §§ 780-113A (16) and (30) (Possession with the Intent and Delivery of Cocaine). On January 5, 2010, Detective Walsh and Detective Trevor Ritter went to the defendant‟s apartment building and spoke with Shar Leinbach, the owner and landlady of the building. Miss Leinbach identified "Shaka" from a photograph as being Mr. Jean Joseph, an authorized occupant of Apartment #14. Miss Leinbach also indicated that the actual tenant on the lease was Carol Wilson.
On January 12, 2010, Detective Walsh and Detective Ritter arrested Mr. Joseph as he exited the apartment building. A search incident to the arrest recovered from Mr. Joseph‟s person two cellular telephones, $106.61 in United States currency, and identification in the defendant‟s name. Mr. Joseph was transported back to the police station where he originally denied having contraband on his person. When told he would be given a thorough physical search, Mr. Joseph responded by saying that he "would get it" and started to reach into his pants. Detective Ritter located a clear plastic bag containing fifty smaller baggies of suspected crack cocaine in Mr. Joseph‟s buttocks area. The government alleges that the chemistry laboratory report concluded that the packets contained crack cocaine with an estimated weight of 8.3 grams. A set of keys with a key fob to the apartment building and to Apartment #14 was also recovered from Mr. Joseph.
Detective Walsh further testified that on the day of Mr. Joseph‟s
arrest, Detective Walsh also interviewed Miss Wilson, who stated that
she had rented the apartment as a favor to Mr. Joseph because he had
poor credit, but that she did not live there. Miss Wilson also
confirmed Mr. Joseph‟s identity through a photograph. Later that
afternoon, Apartment #14 was secured by the detectives pending a
search warrant of the residence which was issued and executed around
8:00 p.m. The receipt/inventory of seized property, see Gov. Exh. 3,
reveals that the following items were recovered from Apartment #14:
(1) four bags of marijuana; (2) various pieces of mail and other
identification in Mr. Joseph‟s name; (3) several photographs of Mr.
Joseph; (4) $1,800 cash; and (5) a hidden, zippered pouch concealed on
the side of the arm chair in the living room. The pouch contained a
digital scale; two clear plastic bags each containing fifty clear
plastic packets for a total of 100 packets of crack cocaine; a Beretta
.40 caliber pistol, serial # A07608M, with one magazine*fn2
containing nine live .40 caliber rounds; and a smaller black
pouch containing clear and pink plastic packaging material,
paraphernalia, tweezers, and a razor blade.
The government further alleges that all items were submitted for fingerprint analysis, but no fingerprints were recovered. The chemistry laboratory results determined that the hundred packets contained cocaine base with an estimated weight of 8.0 grams for one set of fifty packets, and 8.9 grams for the second set of fifty packets. The four bags of marijuana weighed 3.9 grams combined.
The government charged Mr. Joseph with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c); possession of a firearm by a previously-convicted felon, in violation of 18 U.S.C. § 922(g)(1); and possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A).
A reviewing court may not conduct a de novo review of a judicial officer‟s determination of probable cause. United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000). Rather, a district court‟s review of an initial probable cause determination is deferential and limited: "A magistrate [judge]‟s determination of probable cause should be paid great deference by reviewing courts. The duty of the reviewing court is simply to ensure that the magistrate [judge] had a substantial basis for concluding that probable cause existed." United States v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993). The Third Circuit summarized the "substantial basis" standard as follows:
We recognize that a different magistrate judge might have found the affidavit insufficient to support a warrant. However, our role is not to make our own assessment as to whether probable cause existed. Rather, we are constrained to determine only whether the affidavit provides a sufficient basis for the decision the magistrate judge actually made.
United States v. Jones, 994 F.2d 1051, 1057 (3d Cir. 1993). The Supreme Court held that "[t]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Illinois v. Gates, 462 U.S. 213, 236 n. 10 (1983). To determine sufficiency of the warrant, a court must look at the probable cause under the "totality of the circumstances." Id. at 238. Where a judicial officer issued a search ...