U.S. v. Primo
| Decision Date | 23 March 2005 |
| Docket Number | No. CRIM. 3: 04-18J.,CRIM. 3: 04-18J. |
| Citation | 369 F.Supp.2d 607 |
| Parties | UNITED STATES of America, v. Kenrick T. PRIMO, a/k/a "Theodore O. Primo", a/k/a "Shawn Parkinson", a/k/a "Magic". |
| Court | U.S. District Court — Western District of Pennsylvania |
Arthur T. McQuillan, Gleason, DiFrancesco, Shahade, Barbin, McQuillan & Markovitz, Johnstown, PA, for Kendrick T. Primo.
John J. Valkovci, Jr., Asst. U.S. Attorney, Johnstown, PA, for U.S.
This case comes before the Court on Defendant's Motion to Suppress Evidence (Document No. 21-1). Upon consideration of Defendant's Motion, the Response by the United States Government (Document No. 24), testimony and evidence from a Suppression Hearing held before the Court on February 22, 2005 and arguments set forth by counsel, the Court determines the following findings of fact and conclusions of law:
I. Findings of Fact
1. On October 6, 2003, Somerset Borough Police Officer Clifford Pile (hereinafter "Pile") gathered information from Rent-A-Center manager, Bill Taylor (hereinafter "Taylor"), implicating Kenrick Primo, a/k/a "Theodore O. Primo", a/k/a "Shawn Parkinson", a/k/a "Magic" (hereinafter "Primo") in the alleged theft of a Toshiba television.
2. Taylor stated to Pile that Primo's co-lessee, Matt Flugan (hereinafter "Flugan"), allegedly stole the television, and the employee provided Pile with the television serial number, 82698089C.
3. Taylor also stated to Pile that Primo and Flugan shared a rental agreement for apartment 5 at 627 North Center Avenue, Somerset, Pennsylvania.
4. On October 6, 2003, Somerset Borough Police Officer McGuire (hereinafter "McGuire") contacted the landlord of 627 North Center Avenue, Somerset, Pennsylvania, and the landlord confirmed that Primo rented apartment 5, 627 North Center Avenue, Somerset, Pennsylvania.
5. Based upon this information, Pile and McGuire proceeded to apartment 5 in order to question the occupants of the apartment regarding the stolen Toshiba television.
6. After knocking on the door to apartment 5, Pile and McGuire determined that the occupants were not present.
7. Based upon information gathered from confidential informants, Pile and McGuire believed that Primo also rented apartment 2 at 627 North Center Avenue, Somerset, Pennsylvania.
8. Leaving apartment 5, Pile and McGuire proceeded to apartment 2 at approximately 5:36 p.m. After knocking on the door, the door was opened by a black male who identified himself as Sean Sherman, a/k/a "Akona Blount", a/k/a "Junior" (hereinafter "Sherman").
9. Pile explained to Sherman that the officers were looking for Primo.
10. Sherman advised the officers that Primo was not in apartment 2, but he would be returning shortly.
11. Pile and McGuire requested to wait for Primo inside apartment 2, and Sherman permitted the officers to wait inside apartment 2.
12. Pile and McGuire questioned Sherman about the stolen Toshiba television. Initially, Sherman denied any knowledge of the whereabouts of the television.
13. While waiting for Primo, the officers observed that Sherman acted nervously by pacing back and forth and by failing to make eye contact with the officers.
14. McGuire observed bulges in both of Sherman's front pockets. McGuire asked Sherman what was in his pant pockets.
15. Sherman was then observed mumbling, turning nervously away from the officers, and manipulating something in his pockets.
16. McGuire told Sherman he was going to pat him down to make certain that Sherman did not have any weapons in his pockets. During the pat down, McGuire felt a hard metallic object in Sherman's front right pocket.
17. Sherman attempted to put his left hand into his left pocket during the pat down. Immediately, McGuire directed Sherman to remove his left hand from his pocket.
18. Sherman refused to remove his left hand, and a struggle ensued as McGuire attempted to gain control of Sherman's left hand.
19. Pile joined the struggle, and Pile observed Sherman remove his left hand from his pocket and transfer something from his left hand to his right hand.
20. During the struggle, Pile, McGuire, and Sherman all fell to the floor. While on the floor, McGuire observed Sherman extend his right arm and reach for a heating vent on the floor.
21. Sherman placed his hand into the heating vent.
22. After securing Sherman, Pile recovered a clear plastic bag from the vent, which contained 13 individually wrapped pieces of an off-white, rock-like substance, consistent in appearance with crack cocaine.
23. Pile and McGuire then placed Sherman under arrest.
24. Back-up units arrived at apartment 2, 627 North Center Avenue, Somerset, Pennsylvania, and Somerset Borough Police Officer Deist (hereinafter "Deist") secured Sherman's wrists with handcuffs. Thereafter, officers searched Sherman and found a lock blade in his right front pocket and $588.00 in small bills on his person. All items, including the 13 individual suspected crack rocks, were logged into evidence.
25. While officers were arresting Sherman, Primo arrived home.
26. Officers explained the situation to Primo, and officers asked Primo, for his consent to search apartment 2 27. Primo granted the officers consent to search apartment 2. Primo was also presented with a departmental consent-to-search form, and Primo was asked whether he could read and write the English language. Primo stated that he could.
28. The departmental consent-to-search form was then read to Primo.
29. Primo was asked whether he also rented apartment 5. Primo stated that he did rent apartment 5.
30. Pile added a search of apartment 5 to the departmental consent-to-search form. Primo was then asked to sign the form.
31. Primo indicated that Flugan also stayed in apartment 5, and Primo did not feel comfortable signing the form to consent to a search of apartment 5.
32. Primo was then asked whether he observed Flugan bring a Toshiba television into apartment 5. Primo stated that Flugan did bring a television into apartment 5.
33. McGuire explained to Primo that if he did not wish to sign the form, the officers would obtain a search warrant.
34. Primo signed the departmental consent-to-search form for both apartments 2 and 5.
35. In addition to Primo's consent to search, Pile and McGuire explained to Primo that they intended to obtain a search warrant for apartment 5 because Flugan was also staying in apartment 5, and he was not present to give his consent.
36. McGuire instructed Somerset Borough Police Officer Harbart (hereinafter "Harbart") to respond and secure apartment 5 while McGuire went to obtain a search warrant.
37. During this time, Deist was transporting Sherman to Somerset County, Pennsylvania, Station No. 80 to prepare formal charges against Sherman. McGuire accompanied Deist to Station No. 80, and while en route, McGuire contacted an emergency medical unit to meet the officers at the station in order to check Sherman's cut to his hand sustained while putting his hand in the heating vent.
38. Upon arrival at Station No. 80, the medical unit determined that Sherman should be taken to the emergency room. At that time, Deist transported Sherman to the Somerset Community Hospital for treatment.
39. At approximately 8:30 p.m., McGuire returned to the Somerset Borough Police Station to draft an application for a search warrant for apartment 5. With Pile and Pennsylvania State Trooper Volk's ) assistance, McGuire spent approximately one hour drafting the affidavit and application for the search warrant.
40. This Application for Search Warrant and Authorization was designated with Warrant Control Number 100603-01 (hereinafter "Warrant No. 1"), as it was the first warrant issued on October 6, 2003.
41. Included in the Application for Warrant No. 1 is the name of the possessor of the premises to be searched: "Kenrick PRIMO and Matt Flugan". Flugan's name was handwritten next to Primo and inserted by Tpr. Volk during McGuire's preparation of the paperwork for Warrant No. 1. Pile also assisted McGuire by "relaying information back and forth ... as to what was needed in preparation of that warrant." (Suppression Hearing, February 22, 2005, p. 91).
42. Also included in the Application for Warrant No. 1 were the following violations: Title 35, subsection 780-113A16-knowingly or intentionally possessing a controlled substance; and Title 18, subsection 3925(a), receiving stolen property.
43. McGuire stated during the Suppression Hearing that he included the search for controlled substance in the Application for Warrant No. 1 because it was believed that Sherman, who had drugs in his possession, also had access to apartment 5 since he was Primo's brother. (Suppression Hearing, February 22, 2005, p. 18).
44. The Affidavit of Probable Cause for Warrant No. 1 indicated a Warrant Control Number of 030321-01. McGuire acknowledged the warrant control number on the Affidavit was inaccurate because he printed this particular form from his personal computer without erasing the pre-existing numbers on a previously saved document.
45. Included in the affidavit for Warrant No. 1 was the probable cause belief that the Toshiba flat screen television, serial number 82698089C, would be located in apartment 5, 627 North Center Avenue, Somerset, Pennsylvania. This probable cause belief that the stolen item would be located inside apartment 5 was based upon the following facts included in the affidavit prepared by McGuire:
a. McGuire is a trained and experienced police officer employed by Somerset Borough Police for approximately ten years, and during that time, McGuire was involved in over 100 stolen property investigations.
b. Taylor, a private citizen, revealed to Somerset Borough police officers that a crime of theft occurred wherein a 24 inch Toshiba flat screen television was stolen from Joseph...
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...and that irregularities should not void an otherwise valid search absent a showing of prejudice ...'" United States v. Primo, 369 F.Supp.2d 607, 635 (W.D.Pa. Mar. 23, 2005), quoting Commonwealth v. Mason, 507 Pa. 396, 404, 490 A.2d 421 (citations omitted). There is no evidence that this pro......
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United States v. Johnston
... ... United States v. Stiver , 9 F.3d 298, 300 (3d Cir ... 1993) (following Rickus ); United States v ... Primo , 223 Fed.Appx. 187, 190 (3d Cir. 2007) (same) ... However, the Court need not decide whether this search was ... state or federal in ... ...
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United States v. Johnston
... ... United States v. Stiver , 9 F.3d 298, 300 (3d Cir ... 1993) (following Rickus ); United States v ... Primo , 223 Fed.Appx. 187, 190 (3d Cir. 2007) (same) ... However, the Court need not decide whether this search was ... state or federal in ... ...
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U.S.A v. Mcmillion
...United States v. Hall, 505 F.2d 961, 963 (3d Cir. 1974)(discussing Rule 41(d), the precursor to Rule 41(f)); United States v. Primo, 369 F.Supp.2d 607, 635 (W.D. Pa. 2005)(discussing Pennsylvania Rule 209(A)). Thus, absent a showing of prejudice, a motion to suppress should not be granted. ......