2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-3-2007

USA v. Primo

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1800

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Recommended Citation

"USA v. Primo" (2007). 2007 Decisions. Paper 1138.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 06-1800

_______________

UNITED STATES OF AMERICA

v.

KENRICK PRIMO

a/k/a

Theodore Primo

a/k/a

Shawn Parkinson

a/k/a

“Magic”,

 Kenrick Primo,

 Appellant.

_______________

On Appeal From the United States District Court 

for the Western District of Pennsylvania

(No. 04-cr-00018)

District Judge: Honorable Kim R. Gibson

Submitted Under Third Circuit LAR 34.1(a)

March 29, 2007

Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.

(Filed May 3, 2007)

__________________

OPINION OF THE COURT

__________________

CHAGARES, Circuit Judge.
1

Because we write only for the parties, we will forgo any detailed discussion of the

facts.

2

From the evening of October 6, 2003, to the afternoon of October 7, Somerset,

Pennsylvania police officers obtained and executed a series of four search warrants on

appellant Kenrick Primo’s apartment, his former residence, and a safe found inside his

former residence. During the course of these searches, the officers seized a number of

items, including a sizeable quantity of crack cocaine. A federal grand jury subsequently

returned an indictment charging Primo with, inter alia, possession with intent to distribute

more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(iii). 

Primo moved to suppress the crack. The District Court held a suppression hearing,

and then denied Primo’s motion in a thorough opinion. See United States v. Primo, 369

F.Supp.2d 607 (W.D. Pa. 2005). A jury eventually convicted Primo of the distribution

charge, and the District Court handed down a 169-month sentence. In this appeal, Primo

argues that the District Court’s denial of his suppression motion was error. For the

reasons stated below, we disagree and will affirm.1

I.

Primo’s primary argument is that the search warrants were unsupported by

probable cause. “[O]ur review of the district court’s conclusion regarding the propriety of

the magistrate’s probable cause finding is plenary.” See United States v. Williams, 3 F.3d

69, 71 n.2 (3d Cir. 1993). 
3

A defendant seeking to suppress the fruits of a search conducted pursuant to a

warrant has a high hill to climb. A magistrate—and we will use the word ‘magistrate’ to

refer generically to the issuing authority—may find probable cause to search “when,

viewing the totality of the circumstances, ‘there is a fair probability that contraband or

evidence of a crime will be found in a particular place.’” United States v. Hodge, 246

F.3d 301, 305 (3d Cir. 2001) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Once

the magistrate has made this initial determination, the task of a reviewing court is a

“modest” one. United States v. Conley, 4 F.3d 1200, 1205 n.2 (3d Cir. 1993). A

reviewing court owes the magistrate’s probable-cause determination “great deference,”

and it must leave that determination undisturbed “so long as the magistrate had a

substantial basis for” finding probable cause. See Gates, 462 U.S. at 236; United States v.

Jones, 994 F.2d 1051, 1055 (3d Cir. 1993). “[T]he resolution of doubtful or marginal

cases in this area should be largely determined by the preference to be accorded to

warrants.” Jones, 994 F.2d at 1057-58 (quoting United States v. Ventresca, 380 U.S. 102,

109 (1965)). 

Furthermore, even if the magistrate did not have a substantial basis for finding

probable cause, that fact alone is not enough to trigger the “extreme sanction of

exclusion.” See United States v. Leon, 468 U.S. 897, 926 (1984). Under the good-faith

exception to the exclusionary rule, suppression “is inappropriate when an officer executes

a search in objectively reasonable reliance on a warrant’s authority.” Williams, 3 F.3d at

74. “The test for whether the good faith exception applies is ‘whether a reasonably well
4

trained officer would have known that the search was illegal despite the magistrate’s

authorization.’” United States v. Loy, 191 F.3d 360, 367 (3d Cir. 1999) (quoting Leon,

468 U.S. at 922 n.23).

In a case such as this, where “a suppression motion poses no Fourth Amendment

question of broad import,” it is “prudent for a reviewing court to immediately turn to the

question of whether the officers acted in good faith.” Gates, 462 U.S. at 265 (White, J.,

concurring in the judgment); see United States v. $92,422.57, 307 F.3d 137, 145 (3d Cir.

2002); see also United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of

judicial restraint . . . dictate that, in most cases, we should not reach the probable cause

issue if a decision on the admissibility of the evidence under the good-faith exception of

Leon will resolve the matter.”). We will therefore limit our analysis to the dispositive

question of “whether a reasonably well trained officer would have known that the

search[es] [were] illegal despite the magistrate’s authorization.” Loy, 191 F.3d at 367.

Under our cases, the mere “fact that an officer executes a search pursuant to a

warrant typically suffices to prove that an officer conducted a search in good faith and

justifies application of the good faith exception.” $92,422.57, 307 F.3d at 146 (internal

quotation omitted). Indeed, we have identified only “four narrow situations,” id., in

which suppression is appropriate:

(1) the magistrate issued the warrant in reliance on a deliberately or

recklessly false affidavit.

(2) the magistrate abandoned his judicial role and failed to perform his
2

The rule states: 

5

neutral and detached function.

(3) the warrant was based on an affidavit so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable.

(4) the warrant was so facially deficient that it failed to particularize the

place to be searched or the things to be seized.

Williams, 3 F.3d at 74 n.4 (citations omitted).

Primo does not specifically argue that any of these “narrow situations” applies

here. In fact, his brief does not mention Leon’s good-faith exception. Our own

independent review of the record confirms that the Somerset police officers acted in

good-faith reliance on the District Justice’s issuance of the four warrants in question. The

record contains no indicia of deliberate or reckless falsities in the affidavits. The District

Justice appears to have performed his neutral and detached function. The affidavits

contain sufficient indicia of probable cause. And none of the four warrants is “so facially

deficient that it failed to particularize the place to be searched or the things to be seized.” 

See id. In short, the Somerset police reasonably relied on the authority of the four search

warrants, and the District Court’s denial of Primo’s suppression motion was proper. 

II.

Primo also argues that, during the execution of the warrants, the Somerset police

violated Pennsylvania Rule of Criminal Procedure 209(A).2

 Specifically, Primo points
An inventory of items seized shall be made by the law enforcement officer

serving a search warrant. The inventory shall be made in the presence of the

person from whose possession or premises the property was taken, when

feasible, or otherwise in the presence of at least one witness. The officer

shall sign a statement on the inventory that it is a true and correct listing of

all items seized, and that the signer is subject to the penalties and provisions

of 18 Pa.C.S. § 4904(b)–Unsworn Falsification To Authorities. The

inventory shall be returned to and filed with the issuing authority.

Pa. R. Crim. P. 209(A). 

6

out that the officers failed to issue separate inventory sheets for the first and second

warrants. He also notes that these inventory sheets omitted certain items, and that there

are inconsistencies between the listed times of applications for warrants and the entered

times of searches.

These arguments lack merit. When state officials conduct a search with little or no

federal involvement, the evidence will be admissible in federal court so long as it meets

federal constitutional requirements. See United States v. Rickus, 737 F.2d 360, 363-64

(3d Cir. 1984); see also United States v. Tate, 821 F.2d 1328, 1330 (8th Cir. 1987) (“In a

federal prosecution, the legality of a search and seizure is not determined by reference to

a state statute, but rather is resolved by fourth amendment analysis.”). Thus, even if the

officers violated the Pennsylvania Rules of Criminal Procedure, the only relevant

question before us is whether their conduct conformed to the Fourth Amendment. 

Accordingly, we hold that the purported violations of Rule 209(A) do not warrant
3

To the extent that Primo contends the Somerset police violated Federal Rule of

Criminal Procedure 41, this argument is similarly unavailing. See, e.g., United States v.

Piver, 899 F.2d 881, 882 (9th Cir. 1990) (“[S]earches conducted by state officers with

state warrants issued by state judges, with minimal or no federal involvement, are not to

be judged by the specific provisions of Rule 41 but must only conform to federal

constitutional standards.”).

7

suppression.3

III.

Based on the foregoing, we will affirm the District Court’s judgment.