United States v. Primo (369 F. Supp. 2d 607, 2005)

MEMORANDUM OPINION AND ORDER

GIBSON, District Judge.

Findings of Fact and Conclusions of Law

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 “Flu-gan”), 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 Pri-mo 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 Flu-gan 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 Pri-mo 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 cheek 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 (hereinafter “Tpr. Volk”) 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: “Ken-rick 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 preexisting 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 Ryan Witt (hereinafter ‘Witt”), the individual who rented the television from Rent-A-Center. Taylor also advised Somerset Borough police officers that he received information from Joey Mitchell (hereinafter “Mitchell”) that Flu-gan stole the television from Witt. Taylor revealed to officers that his records indicated that Flugan had previously rented items from Rent-A-Center, and that Flu-gan resided at apartment 5, 627 North Center Avenue, Somerset, Pennsylvania. Taylor also stated that his records revealed that Flugan resided at apartment 5, 627 North Center Avenue with Primo.

c. Through previous investigations and information supplied by confidential informants, McGuire established that Primo frequented apartment 2, 627 North Center Avenue, Somerset, Pennsylvania.

d. On October 6, 2003; McGuire and Pile went to apartment 2, 627 North Center Avenue, Somerset, Pennsylvania, and they spoke with the occupant of apartment 2. The occupant identified himself as Sean Sherman of Queens, New York, and Sherman revealed to McGuire that he was Pri-mo’s brother. Sherman also advised McGuire that Primo and Flugan shared apartment 5, and that Primo and Flugan had a violent altercation inside apartment 5 on October 5, 2003.

e. Sherman revealed to McGuire that Sherman believed that he observed the Toshiba flat screen television set inside apartment 5, 627 North Center Avenue, Somerset, Pennsylvania, and Sherman believed that the television was still located inside apartment 5.

46. Somerset County Assistant District Attorney Kathy Primavera read the Application and Affidavit for Warrant No. 1, and she approved the warrant as evidenced by her signature. The Affidavit is expressly incorporated by reference on the face of Warrant No. 1.

47. McGuire visited District Justice Cook’s (hereinafter “District Justice Cook”) home and presented District Justice Cook with the affidavit and application for the search warrant.

'48. Upon reviewing the Application and Affidavit for Warrant No. 1, as well as McGuire’s signature affirming that “certain property is 'evidence of or the fruit of a crime” and is located at apartment 5, 627 North Center Avenue, Somerset, Pennsylvania, District Justice Cook signed and approved the application for the search warrant at 9:30 p.m. on October 6, 2003, authorizing a nighttime search. (Application for Search Warrant and Authorization, Warrant Control Number: 100603-01).

49. While McGuire was preparing the search warrant to seize the Toshiba television believed to be located inside apartment 5 of 627 North Center Avenue, Harbart remained outside the door of apartment 5, securing the premises.

50. At the same time, Pile waited in between apartments 2 and 5 until McGuire returned with the properly approved and signed search warrant for apartment 5.

51. ' McGuire then contacted Pile, who remained at 627 North Center Avenue, to inform him that McGuire would soon return with a signed warrant.

52. Before returning to 627 North Center Avenue,. McGuire was contacted by Deist, who requested that McGuire go to the Somerset Community Hospital prior to returning to 627 North Center Avenue.

53. At the hospital, Deist informed McGuire that he searched Sherman again, and Deist found a key in the right front watch pocket of Sherman’s pants. Sherman informed Deist that the key unlocked apartment 5 at 627 North Center Avenue.

54. McGuire took possession of the key and returned to 627 North Center Avenue.

55. Upon his return to 627 North Center Avenue, McGuire was met by Pile, Harbart, and Pennsylvania State Police Sergeant Deluca (hereinafter “Sgt. Delu-ca”). McGuire verified with Harbart that no one had -entered or exited apartment 5 since McGuire’s departure.

56. McGuire knocked on apartment 5 and loudly announced “Somerset Police, Search Warrant”. After waiting approximately 45 seconds, McGuire knocked, announced, and advised any occupants inside apartment 5 that the officers were entering.

57. McGuire inserted the key retrieved from Sherman into the lock of apartment 5. The key fit and unlocked the dead bolt lock to apartment 5.

58. Warrant No. 1 was executed at approximately 10:00 p.m. by McGuire, Pile, Harbart, Sgt. Deluca, and Tpr. Volk. After announcing their presence, the officers began to clear the apartment. No one was found inside apartment 5.

59. During the execution of Warrant No. 1, the Toshiba flat screen television with matching serial number 82698089C was found inside apartment 5. The television was located at. the foot of the bed in the only bedroom, which was located in the rear of the apartment.

60. While Pile investigated the serial number on the television, McGuire, Tpr. Volk, and Sgt. Deluca noticed a green vegetable matter on the corner of the television stand. Specifically, the officers noticed what appeared to be the roach of a blunt, or marijuana rolled in a cigar wrapper. McGuire, having had prior training in drug detection, immediately recognized the vegetable matter as marijuana.

61. After conferring with each other, Pile, McGuire, Tpr. Volk, and Sgt. Deluca determined to secure another search warrant in order to expand their search of apartment 5. Their determination was based upon the fact that Warrant No. 1 only identified a search for the Toshiba television, and once the officers located the television they could not continue their search inside apartment 5.

62. The officers decided to secure a second warrant in order to find the remote control for the Toshiba television. Furthermore, having found the green vegetable matter, it was decided by the officers that a more exhaustive search of apartment 5 could disclose additional drug violations.

63. McGuire left apartment 5 to prepare a second search warrant for the rest of apartment 5 while Pile remained alone inside apartment 5. Pile stated that he did not perform any search of apartment 5 until a second search warrant was secured by McGuire. (Suppression Hearing, February 22, 2005, p. 98).

64. McGuire returned to the Somerset Borough Police Station to prepare an Application for Search Warrant and Authorization at Warrant Control No. 100603-02 (hereinafter “Warrant No. 2”). While preparing the second search warrant, McGuire did not enter a new’warrant control number on the prepared form previously saved on his computer as the Warrant No. 1 application. Consequently, even though McGuire updated the information regarding the second search warrant application, Warrant No. 2 was printed with Warrant Control No. 100603-01. When McGuire noticed his error, he crossed out “01” and handwrote “02” as it was the second warrant issued on October 6, 2003.

65. Included in the Application for Warrant No. 2 are the names of the possessors of the premises to be searched: “Kenrick PRIMO and Matt FLUGAN”, both computer generated names. The following violations are also listed in the Application for Warrant No. 2: Title 35, Control Substance Act, subsection 113-un-lawful activities and subsection A16-pos-session of a controlled substance; and Title 18, Section 3925(a), stolen property.

66. The Application for Warrant No. 2 also identifies the following items to be seized inside of apartment 5: “Cocaine, cocaine paraphernalia, evidence of illegal drug activity, additional marijuana, marijuana paraphernalia, remote control for stolen Toshiba television (serial # 82698089), [and] additional stolen property.” (Application for Search' Warrant and Authorization, Warrant Control No. 100603-02) (italicized items were handwritten). The handwritten text was included by Tpr. Volk, who assisted McGuire in preparing the application for Warrant No. 2.

67. Included in the Affidavit for Warrant No. 2 was the probable cause belief that the remote control for the stolen Toshiba flat screen television, serial number 82698089[C], would be located in apartment 5, 627 North Center Avenué, Somerset, Pennsylvania. Furthermore, McGuire established in the Affidavit that evidence of illegal drug activity would be located inside apartment 5 based upon the following facts:

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. While executing Warrant No. 1, officers located the stolen Toshiba television, serial number 82698089C, reported stolen by Taylor. However, officers were unable to locate the remote control to the Toshiba television.

c. While executing Warrant No. 1, officers observed in plain view a marijuana cigarette on the table where the Toshiba television was located.

d. Five independent individuals corroborated information regarding the sale of large amounts of cocaine out of 627 North Center Avenue, Somerset, Pennsylvania. Furthermore, the individuals confirmed that two black related males from New York were selling large amounts of cocaine out of the 627 North Center Avenue residence. Both Sherman and Primo have been identified as black males from New York, and Sherman already indicated, to Somerset Borough Police Officers that Pri-mo was his brother.

e. On October 1, 2003, McGuire set up surveillance of 627 North Center Avenue, Somerset, Pennsylvania, and McGuire observed a heavy amount of pedestrian traffic going to and coming from 627 North Center Avenue, Somerset, Pennsylvania. Through his years of investigative experience, McGuire recognized this type of pedestrian traffic to be consistent with illegal drug activity.

f. On October 6, 2003, 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.

68.Assistant District Attorney Kathy Primavera read and approved the Application for Search Warrant and Authorization at Warrant Control No. 100603-02. The Affidavit is expressly incorporated by reference on the face of Warrant No. 2. Furthermore, upon reviewing the Application and Affidavit for Warrant No. 2, as well as McGuire’s signature affirming that “there is probable cause to believe that certain property is evidence of or the fruit of a crime or is contraband or is unlawfully possessed or is otherwise subject to seizure”, and that such evidence is located at apartment 5, 627 North Center Avenue, Somerset, Pennsylvania, District Justice Cook signed and approved the application for the search warrant at 10:45 p.m. on October 6, 2003.

69. McGuire returned to 627 North Center Avenue at approximately 11:00 p.m. on October 6, 2003. (Suppression Hearing, February 22, 2005, p. 26).

70. Pile waited inside apartment 5 for McGuire to return with a properly secured search warrant for the rest of apartment 5. Upon McGuire’s return, Pile verified that no one had entered apartment 5. Pile then conducted the search of apartment 5.

71. McGuire did not participate in the execution of Warrant No. 2. Rather, he was summoned by other officers to apartment 2 in order to interview two informants who 'were accompanying Primo when he came back to the residence.

72. Pile completed the bulk of the execution of Warrant No. 2 inside apartment 6,

73. While executing Warrant No. 2, Pile found a black satchel secreted away in a cubby-hole located in the bedroom closet. Inside of the satchel was a large quantity of suspected crack cocaine, as well as packaging materials.

74. Pile also found a small plastic bag inside á night-stand beside the bed which was consistent with those bags found inside the satchel. In the same area, a telephone bill was found for Primo’s cell phone number. The bill, which listed numerous calls to various locations in New York and Guyana, was found along with a Rent-A-Center rental agreement for rented furniture, signed by Primo and Flugan.

75. Inside the telephone bill, officers also discovered an international drivers’ license in the name of Shawn Parkinson, 375 East 51st Street, PVT, Brooklyn, NY, 11203, place of birth Guyana, DOB 11/05/72, with a photograph of Ken-rick/Theodore Primo on it.

76. As officers continued to search inside apartment 5, Sgt. Deluca spoke with Pile and asked if a silver key was found in the night-stand compartment. Pile informed Sgt. Deluca that they did find such a key with a Wal Mart brand. Sgt. Deluca informed Pile that McGuire spoke with a confidential informant inside apartment 2 who stated that Primo kept such a key in apartment 5 for a residence located on West Patriot Street.

77. Sgt. Deluca took the silver Wal Mart brand key to show the informant. The informant confirmed that it was the same key used previously to gain access into the residence on West Patriot Street.

78. All items seized during the execution of Warrant No. 2 were inventoried by Pile, witnessed by Tpr. Volk, and packaged into evidence bags.

79. Pile completed the initial inventory sheets for both Warrant Nos. 1 and 2. These initial sheets listed items 1 through 9 as follows: (1) One Toshiba TV Model No. MW24FM1, Serial No. 82698089C; (2) One Black bag containing suspected cocaine, baggies, scale with residue, vial with yellow liquid; (3) One baggie with suspected marijuana stems; (4) One rental agreement for Matt Flugan, Kenrick Primo; (5) Newport cigarette pack with plastic baggie, green vegetable, matter suspected marijuana; (6) Two baggies with taped wrappers with white trace evidence; (7) One Check No. 1329, Route No. 31, Board & Ski (blank); (8) One Blackwoods Cigars with plastic baggie, green vegetable matter; and (9) Phone bill, Kenrick Primo. All items were seized and reported by Pile except for item number 6, which was reported by Tpr. Volk.

80. The initial inventory sheets did not include the silver key found in apartment 5, as the key was used to gain access to the resident on West Patriot Street prior to being logged onto the master copy of the inventory sheet.

81. The initial inventory sheets also did not include the green vegetable matter located beside the Toshiba .television because it had already been placed into an evidence envelope. When McGuire left to secure an additional search warrant, Pile recollected that McGuire had taken this evidence with him to the Somerset Borough Police Station. (Suppression Hearing, February 22, 2005, pp. 94-95).

82. Pile also prepared the revised inventory sheets and the Departmental Evidence Receipt forms for both Warrant Nos. 1 and 2.

83. When Pile prepared the Departmental Evidence Receipt forms, Pile did not fill in the police incident number and the warrant control numbers on the Department Evidence Receipt forms. Rather, McGuire completed the sections marked ‘Warrant Control No.” for the inventory sheets in both Warrant No. 1 and Warrant No. 2.

84. McGuire erroneously identified both Department Evidence Receipt forms for Warrant Nos. 1 and 2 under the same warrant control number, i.e., 1006[0]3-02.

85. McGuire testified that the misiden-tifieation of the Department Evidence Receipt form for Warrant No. 1 was the consequence of both Department Evidence Receipt forms being completed at the same time. (Suppression Hearing, February 22, 2005, p. 28.)

86. Both inventory sheets were completed after the execution of Warrant No. 2, and they are identical inventory sheets.

87. When Pile prepared the Department Evidence Receipt forms for Warrant Nos. 1 and 2, he realized that- he had “inadvertently forgot” to put the silver key (later identified as item number 10) and the green vegetable matter (item number 11) on the initial inventory sheets. .(Suppression Hearing, February 22, 2005, p., 95).

88. Pile realized his error the very next day, October 7, 2003, as he prepared the Department Evidence Receipt forms for Warrant Nos. 1 and 2. Consequently, Pile advised McGuire to contact Somerset County Assistant District Attorney, Jerry Spangler, in order to determine what should be done to correct the omission. (Suppression Hearing, February 22, 2005, p. 95). McGuire was advised to contact Primo’s counsel and to prepare a letter indicating the omission of items 10 and 11 from the initial receipt of inventory. McGuire subsequently prepared and mailed a letter to Primo’s counsel which identified the omission of the silver key and the green vegetable matter.

' 89. With information provided by confidential informants to Somerset Borough police officers regarding the silver Wal Mart key and the green vegetable matter, McGuire prepared a third search warrant for the residence on West Patriot Street, Somerset, Pennsylvania.

90. This Application for Search Warrant No. 3 and Authorization was designated with Warrant Control Number 100703-01 (hereinafter “Warrant No. 3”), as it was the first warrant issued on October 7, 2003.

9.1. Included in the Application for Warrant No. 3 is the possessor of the premises to be searched, identified as “Pri-mo KENRICK”.

92. Also included in the Application for Warrant No. 3 was the following violation: Title 35, Control Substance Act, subsection 113-unlawful activities and subsection A16-possession of a controlled substance.

93. Included in the Affidavit for Warrant No. 3 was the probable cause belief that evidence of illegal drug activity, including cocaine and U.S. Currency, would be located at a two story residence known as 364 West Patriot Street, Somerset, Pennsylvania. This probable cause belief that illegal drug activity would be located at 364 West Patriot Street was based upon evidence seized from apartment nos. 2 and 5, 627 North Center Avenue, Somerset, Pennsylvania, and 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. Primo was further identified by additional independent confidential informants as “Magic”, a black male from New York who sells large amounts of cocaine from two separate residences: 627 North Center Avenue, Somerset, Pennsylvania and 364 West Patriot Street, Somerset, Pennsylvania. The informants also stated that Magic had a safe, where he stored money and/or additional cocaine, inside a closet on the second floor of the residence known as 364 West Patriot Street, Somerset, Pennsylvania.

c. During a search on October 6, 2003 of the residence known as apartment 5, 627 North Center Avenue, Somerset, Pennsylvania, officers found a key for a residential lock. A confidential informant stated that the key opened the rear door of the residence known as 364 West Patriot Street, Somerset, Pennsylvania. The same confidential informant identified the residence known as 364 West Patriot Street, Somerset, Pennsylvania as a residence where the informant had previously been with Primo.

d. McGuire also requested a nighttime search based upon the alleged presence of cocaine inside the residence of 364 West Patriot Street, Somerset, Pennsylvania. A highly addictive and dangerous drug, cocaine needed to be immediately removed from the residence in order to prevent possible overdose death(s) and/or addiction to cocaine. Furthermore, even though Primo has been arrested, McGuire feared that the risk that other individuals might remove or steal the cocaine from the residence was very high.

94. Somerset County Assistant District Attorney David Geary approved Warrant No. 3, and District Justice Cook signed Warrant No. 3 on October 7, 2003 at 1:40 a.m. The Affidavit is expressly incorporated by reference on the face of Warrant No. 3.

95. Prior to executing the search at 364 West Patriot Street on October 7, 2003, McGuire and other officers held a meeting regarding the responsibility of each officer during the execution of Warrant No. 3. The officers also reviewed the layout of the residence based upon descriptions offered by confidential informants.

96. Officers then proceeded to 364 West Patriot Street and conducted the search at approximately 2:20 a.m. on October 7, 2003. (Suppression Hearing, February 22, 2005, p. 33). Although the Receipt/Inv'entory of Seized Property for Warrant No. 3,' which was prepared by McGuire, indicates that the search was conducted at 1:20 a.m., McGuire testified at the Suppression Hearing that the search was executed closer to 2:20 a.m. and that the error on the inventory sheet was the result of glancing at his watch the wrong way. (Suppression Hearing, February 22, 2005, pp. 33-34).

97. McGuire stated that prior to any search of the residence at 364 West Patriot Street, McGuire secured an approved and authorized search warrant. Id. at p. 34.

98. The initial entry team of officers who executed Warrant No. 3 included McGuire, Sgt. Deluca, Tpr. Yolk, Pile, and Harbart. These officers executing Warrant No. 3 learned that 364 West Patriot Street was occupied by Diane Riggleman and her boyfriend, Rodney Myers. Id. at p. 78. Officers also learned that throughout the months of May 2003 through June 2003, Primo rented a bedroom in Ms. Rig-gleman’s home.

99. Primo rented one bedroom at 364 West Patriot Street for $150.00 per week, or $600.00 per month. These payments were made on a weekly basis. Id. at p. 79.

100. According to Ms. Riggleman, Pri-mo continued to pay her on a weekly basis for approximately six weeks, until he' moved out at the end of June 2003. Id. at p. 80.

101. Although Primo ceased paying weekly rent to. Ms. Riggleman, and he no longer stayed in the bedroom at 364 West Patriot Street, Primo failed to return the key to the residence to Ms. Riggleman. Ms. Riggleman testified that she continued to ask Primo for the return of the house key. Id. at p. 80.

102. Although Primo moved out of Ms. Riggleman’s residence, he left a few belongings behind in the room he had rented. For example, some of Primo’s clothes and a safe remained inside the bedroom, at the Riggleman residence.

103. On a couple óf occasions, Primo visited the Riggleman residence and entered the bedroom where his safe remained.

104. Upon execution of Warrant No. 3, McGuire described the bedroom once inhabited by Primo as a storage area. Specifically, McGuire noted that there was a bed without linens, a dresser, and an object with a sheet covering it. Id. at p. 35.

105. Subsequent to the search of the Riggleman residence, McGuire prepared the Receipt/Inventory of Seized Property for Warrant No. 3. Pile witnessed the form to verify that there was a valid search warrant, that the search was conducted and that particular items were seized.

106. The inventory sheet prepared for Warrant No. 3 listed the following seized items: (1) Sentry Safe; (2) Wooden smoking device; (3) Ohaus scales, model LS2000; (4) Box of sandwich bags with corners cut out; (5) Mail addressed to Kenrick Primo; (6) Three Verizon phone bills for Rodney Myers; (7) Polaroid of Diane Rigglman; and (8) Hemostats. (Receipt/Inventory of Seized Property, Warrant Control Number: 100703-01).

107. McGuire testified that upon seizing the safe, officers determined not to search the safe until a fourth warrant could be secured. Id. at pp. 36-37. Specifically, Warrant No. 3 did not include the contents of the safe as items to be searched; therefore, McGuire prepared a fourth search warrant for the search of the safe between approximately 10:00 a.m. and 12:00 p.m. on October 7, 2003. (Suppression Hearing, February 22, 2005, p. 38).

108. The Application for Search Warrant and Authorization was designated with Warrant Control Number: 100703-02 (hereinafter “Warrant No. 4”), as it was the second warrant to be issued on October 7, 2003.

109. In the Application for Warrant No. 4, “Primo KENRICK” is identified as the occupant or possessor of the premises to be searched, and the specific premises to be searched is identified as “A Sentry Safe Serial Number AL 309297”, which was located by this time in Somerset Borough P.olice custody. (Application for Search Warrant and Authorization, Warrant Control Number: 100703-02).

110. The items to be seized from the safe are the “Contents of a Sentry Safe Serial Number AL 309297, additional cocaine, additional marijuana, additional U.S. Currency”. Id.

111. Included in the Affidavit for Warrant No. 4 was the probable cause belief that evidence of illegal drug activity, including cocaine and U.S. Currency, would be found inside a Sentry Safe Serial Number AL 309297, located in Somerset Borough Police custody, 340 West Union Street, Somerset, Pennsylvania. This probable cause belief was based upon evidence seized from the residence of 364 West Patriot Street, Somerset, Pennsylvania, and 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 and over 50 druglaw violations.

b. On October 6, 2003 during a search of the KENRICK residence known as apartment 5, 627 North Center Avenue, Somerset, Pennsylvania, I found a key for a residential lock. Confidential informant # 2 informed me that the key to the residential lock that I found was the key to the rear door of the residence known as 364 West Patriot Street, Somerset, Pennsylvania. Confidential informant #2 further physically identified the residence known as 364 West Patriot Street, Somerset, Pennsylvania where they had previously been with KENRICK.

c. On October 7, 2003, a search warrant was executed at 364 West Patriot Street, Somerset, Pennsylvania. Based upon descriptions provided by informants, a safe would be located inside a bedroom at 364 West Patriot Street. As a result of that search, a sentry safe Serial #AL 309297 was seized from the second floor bedroom. The occupant of that residence, Ms. Riggleman, stated that the safe belonged to Primo KENRICK A.K.A. MAGIC. The occupant also advised that KEN-RICK brought the safe into the room and that she believed the safe to contain illegal drugs.

112.Although McGuire did not recall which Somerset County Assistant District Attorney approved Warrant No. 4, Warrant No. 4 was approved as evidenced by a handwritten “DA File No.” notation on the application. (Suppression Hearing, February 22, 2005, p. 38). The Affidavit is expressly incorporated by reference on the face of Warrant No. 4.

113. McGuire proceeded to District Justice Cook’s office, where District Justice Cook read the Application and Affidavit for Warrant No. 4. Determining that probable cause existed for the search of the safe located at 364 West Patriot Street, Somerset, Pennsylvania, District Justice Cook signed and approved the application for Warrant No. 4 at 12:20 p.m. on October 7, 2003.

114. McGuire participated in executing Warrant No'. 4 on October 7, 2003 at approximately 1:30 p.m. (Suppression Plear-ing, February 22, 2005, p. 40).

115. The initial inventory sheet prepared for Warrant No. 4 listed the following seized items: (1) Baggie of green vegetable matter (suspected marijuana); (2) Jennings .25 caliber semi automatic serial number 024200 with a loaded clip; (3) Box of .25 automatic FMJ 50 gr cartridges containing 42 live cartridges; (4) Razor with black handle with white residue; (5) Plastic bags; and (6) $1,050.00 in U.S. Currency. (ReceipVInventory of Seized Property; Suppression Hearing, February 22, 2005, pp. 40, 72).

116. McGuire’s first inventory sheet for Warrant No. 4 failed to include item number 7, bag containing suspected cocaine. (Suppression Hearing, February 22, 2005, p. 61). McGuire explained that when officers opened the safe, pictures were taken of the contents inside the safe before these items were removed. Id. Then, items were removed from the safe and pictures were again taken of those items. McGuire then took the suspected cocaine and the baggie, weighed it, and placed it into the police evidence storage area as the other items were still being categorized. Id. Therefore, when the first inventory sheet was prepared, the suspected cocaine and the baggie were already locked away into evidence storage. Id.

117. Upon learning of this omission, McGuire added item number 7 to the Receipt/Inventory of Seized Property, and he notified Primo’s counsel of the omission. Id. at 72. McGuire subsequently prepared and mailed a registered letter to Primo’s counsel which identified the omission of item number 7.

118. Primo filed a Motion to -Suppress Evidence and a Motion for View. (Document No. 21). Specifically, Primo alleges the following violations pursuant to the Fourth Amendment to the United States Constitution: (1) Officers conducted two warrantless searches during the second search of apartment 5 and during the search of the Riggleman residence; (2) Evidence obtained during the second search of apartment 5, during the search of the Riggleman residence, and during the search of the safe must be suppressed under the fruit of the poisonous tree doctrine. Id. Primo also alleges that the failure to issue separate inventory sheets for the searches executed pursuant to Warrant Nos. 1 and 2 violates Pennsylvania Rule of Criminal Procedure 209(A). Id. Furthermore, Primo states that defects exist in the warrants such that they lacked probable cause to support the subsequent searches executed by the officers. Finally, Primo requested a view of the scene where a vehicle stop resulted in additional charges against Primo for the alleged sale of drugs or the commission of a violent crime. Id.

119. In a Court Order, dated January 6, 2005, Primo’s Motion for View was denied, and a hearing regarding the Motion to Suppress Evidence was held on February 22, 2005. At the conclusion of the suppression hearing, the Government presented oral argument. Conversely, Primo filed a post-hearing brief addressing issues raised in his Motion to Suppress Evidence and the issue of Primo’s standing to challenge the validity of Warrant Nos. 3 and 4.

II. Conclusions of Law

A. Probable Cause and Search Warrant Nos. 1 and 2

A.l. Standard of Review

1. Initially, the Court observes that the “proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights were violated.” United States v. Leveto, 343 F.Supp.2d 434, 441 (W.D.Pa,2004) (citing to United States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir.1992))(Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

2. The burden of proof in a suppression motion is a preponderance of evidence standard. Leveto, 343 F.Supp.2d at 441-42 (citing United States v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.”).

3. Weighing the evidence according to this standard, the trial judge at a suppression hearing reviews the “credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence”. Leveto, 343 F.Supp.2d at 442 (quoting United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir.1993)); see also United States v. Matthews, 32 F.3d 294, 298 (7th Cir.1994); United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir.1990); Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir.1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975).

4. The Fourth Amendment to the United States Constitution sets forth the right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; United States v. Santos, 340 F.Supp.2d 527, 533 (D.N.J.2004).

5. Following a series of United States Supreme Court decisions which explored the scope and application of this Fourth Amendment right, the Supreme Court propounded that privacy rights were included in the previously established property rights jurisprudence of the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Conley, 856 F.Supp. 1010, 1016-17 (W.D.Pa.1994). Specifically, Justice Harlan, in his concurring opinion in Katz declared, “My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize ás ‘reasonable.’ ” Katz, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring) (quoted in Conley, 856 F.Supp. at 1017).

6. Consequently, Justice Harlan’s “formulation of the ‘reasonable expectation of privacy’ test” is the standard consistently applied by the majority of the Supreme Court. Conley, 856 F.Supp. at 1017; Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1412, 103 L.Ed.2d 639 (1989); California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214 (1984); Soldal v. Cook County, Ill., 506 U.S. 56, 62, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992); United States v. Flores-Montano, 541 U.S. 149, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004).

7. In order to challenge the reasonableness of a search and seizure, the proponent must possess a “legitimate expectation . of privacy”. Conley, 856 F.Supp. at 1015-16 (quoting United States v. Felton, 753 F.2d 256, 259 (3d Cir.1985)); see Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

8. The United States Supreme Court has also adopted distinct parameters of what constitutes a “search” and what constitutes a “seizure”. Conley, 856 F.Supp. at 1018. This distinction was recognized and enunciated in United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) when the Court stated the following:

[The Fourth Amendment] protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’ A ‘search’ occurs when an. expectation of privacy that society is prepared to accept as reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.

Jacobsen, 466 U.S. at 113, 104 S.Ct. at 1656 (quoted in Conley, 856 F.Supp. at 1018); Soldal, 506 U.S. 56, 113 S.Ct. at 544, 121 L.Ed.2d 450 (The Court held that the Fourth Amendment’s prohibition against unreasonable “seizures” protects property interests.).

9. In subsequent Supreme Court decisions, the Court further elaborated on the manner in which the Fourth Amendment protects both privacy and property interests. For example, the applicability of the exceptions to the warrant, probable cause, and particularity requirements distinguishes the Fourth Amendment protections against unlawful searches from those against unlawful seizures. Conley, 856 F.Supp. at 1018; see Soldal, 506 U.S. at 64-65, 113 S.Ct. at 545-546 (quoted in Conley, 856 F.Supp. at 1018-1019) (“Justice White explained the intimate relationship between the ‘plain view’ doctrine, which permits warrantless seizures, and the property interests protected by the Fourth Amendment)”. (Conley, 856 F.Supp. at 1018).

10. As a consequence of the Supreme Court’s pronounced distinctions, the current Fourth Amendment jurisprudence considers government conduct that may “violate the Fourth Amendment if it unreasonably invades one’s reasonable expectations of privacy or one’s ownership or possessory interests in certain property.” Conley, 856 F.Supp. at 1019. (emphasis in original).

11. The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV.

12. The Fourth Amendment prohibits the issuance of a general warrant. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

13. Accordingly, a search warrant may be issued only if there is probable cause to believe that evidence of criminal activity will be found on the premises or person to be searched. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925).

14. To that end, a neutral and detached “ magistrate must determine that there is a ‘fair probability that ... evidence of a crime will be found in a particular place.’” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)(quoted in Leveto, 343 F.Supp.2d at 442). (emphasis added).

15. The particularity requirement of the Fourth Amendment provides that a search warrant must describe with particularity the place to be searched and the persons or things to be seized. See U.S. Const. Amend. TV; Fed.R.Crim.P; United States v. Williams, 43 F.2d 184 (D.C.Pa.1930); United States v. Gigli, 573 F.Supp. 1408 (D.C.Pa.1983). The search warrant should describe the place to be searched and items to be seized with sufficient particularity so as to leave “nothing ... to the discretion of the officer executing the warrant.” Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

16. The magistrate’s determination is based upon the requesting' law. enforcement officer’s affidavit containing sufficient facts and circumstances permitting an independent finding of probable cause of evidence of a crime. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

17. The determination of probable cause is not a fixed, mechanical process. Rather, the Supreme Court held in Gates that probable cause is a “ ‘practical, nontechnical conception’ that may be formulated through common sense analysis rather than adherence to ‘separate and independent requirements ... rigidly exacted in every case.’ ” Gates, 462 U.S. at 230, 103 S.Ct. at 2328 (quoted in Lesoine v. County of Lackawanna, 2000 WL 572466, *4 (M.D.Pa.2000)). In other words, when a magistrate considers a request for a search warrant, the .magistrate “must make a ‘practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him[7her] ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Id. at 235, 103 S.Ct. at 2330, (quoted in Lesoine, 2000 WL at *4).

18. The magistrate’s evaluation is often referred to as the “totality-of-the-eircum-stances approach”. United States v. Daly, 937 F.Supp. 401, 407 (E.D.Pa.1996); see Gates, 462 U.S. 213, 238, 103 S.Ct. 2332.

19. When adjudicating motions to suppress evidence for lack of probable cause, a district court reviewing the magistrate’s evaluation exercises a deferential review of the initial probable cause determination made by the magistrate. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); see U.S. v. Conley, 4 F.3d 1200, 1205 (3d Cir.1993).

20. The Supreme Court stated in Conley that the following standard applies with regard to courts reviewing a motion to suppress evidence for lack of probable cause:

[T]he district court [may] exercise only a deferential review of the initial probable cause determination by the magistrate. A magistrate’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 had a substantial basis for concluding that probable cause existed. Keeping in mind that the task of the issuing magistrate is simply to determine whether there is a fair probability that contraband or evidence of a crime will be found in a particular place, a reviewing court is to uphold the warrant as long as there is substantial basis for a fair probability that evidence will be found.

Conley, 4 F.3d at 1205 (citing Gates, 462 U.S. at 236-238, 103 S.Ct. at 2330-2331) (internal quotations omitted) (quoted in Daly, 937 F.Supp. at 408).

21. The Supreme Court further noted in Conley that “a reviewing court may not conduct a de novo review of a probable cause determination. Even if a reviewing court would not have found probable cause in a particular case, it must nevertheless uphold a warrant so long as the issuing magistrate’s determination was made consistent with the minimal substantial basis standard.” Conley, 4 F.3d at 1205 (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331)(quoted in Daly, 937 F.Supp. at 408).

22.Third Circuit precedent also provides that “direct evidence linking the residence to criminal activity is not required to establish probable cause.” United States v. Burton, 288 F.3d 91, 103 (3d Cir.2002) (citing United States v. Hodge, 246 F.3d 301, 305 (3d Cir.2001); United States v. Whitner, 219 F.3d 289, 297 (3d Cir.2000); United States v. Conley, 4 F.3d 1200, 1207 (3d Cir.1993); United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.1993)).

23. Although it would be ideal if “every affidavit would contain direct evidence linking the place to be searched to the crime, it is well established that direct evidence is not required for the issuance of a search warrant.” Jones, 994 F.2d at 1056 (quoted in Burton, 288 F.3d at 103). Indeed, “probable cause to search can be based on an accumulation of circumstantial evidence that together indicates a fair probability of the presence of contraband at the home of the arrested.” Burton, 288 F.3d at 103. Accordingly, probable cause “can be, and often is, inferred by ‘considering the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide stolen property.’ ” Burton, 288 F.3d at 103 (quoting United States v. Jackson, 756 F.2d 703, 705 (9th Cir.1985)).

24. Nevertheless, evidence seized in violation of the Fourth Amendment will be suppressed as “fruits of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)(quoted in Leveto, 343 F.Supp.2d at 442).

A.2. Search Warrant No. 1

25. Considering the privacy and property interests protected by the Fourth Amendment, the narrow standard of' this reviewing Court, and Third Circuit precedent, the Court is convinced that the evidence contained in the McGuire affidavit for Warrant No. 1 is sufficient to establish probable cause to search apartment 5, 627 North Center Avenue, Somerset, Pennsylvania.

26. With regard to the stolen Toshiba television, the Court determines that sufficient evidence was provided in the McGuire affidavit to establish the fair probability that evidence of a crime would be located inside apartment 5. Specifically, McGuire is an experienced police officer employed by the Somerset Borough Police Department. Additionally, the statements of Taylor, the Rent-A-Center manager, and Sherman, both indicated that the television was located at apartment 5, 627 North Center Avenue, Somerset, Pennsylvania. More specifically, Taylor received information that Flugan stole the television, and Taylor stated to McGuire that Flugan resided in apartment 5, 627 North Center Avenue, Somerset, Pennsylvania with Primo. Also, Sherman directed officers to apartment 5, 627 North' Center Avenue where he recalled seeing the Toshiba television. Furthermore, Sherman stated to McGuire that Primo resided inside apartment 5. The totality of these circumstances clearly establish a substantial basis for a reasonable probability that evidence of stolen property would be located inside apartment 5, 627 North Center Avenue.

27. Similarly, with regard to the inclusion of drug violations in the Application for Warrant No. 1, the Court determines that a substantial basis was provided in the McGuire affidavit to establish a reasonable probability that evidence of a drug violation would be located inside apartment 5. In particular, Sherman was found inside apartment 2, 627 North Center Avenue, Somerset, Pennsylvania with a significant amount of cocaine in his possession. Furthermore, five independent individuals corroborated information regarding the sale of large amounts of cocaine out of 627 North Center Avenue, Somerset, Pennsylvania. These sales were allegedly conducted by two black related males from New York. Sherman already identified himself as Primo’s brother. Additionally, McGuire observed during surveillance of 627 North Center Avenue, Somerset, Pennsylvania, a heavy amount of pedestrian traffic going to and coming from 627 North Center Avenue that is consistent with illegal drug activity. Consequently, the Court determines that the totality of these circumstances establish a substantial basis for a reasonable probability that evidence of illegal drug activity would be located inside apartment 5, 627 North Center Avenue.

28. Accordingly, the Court determines that there was no defect in Warrant No. 1, and that Somerset Borough police officer McGuire submitted an affidavit containing sufficient facts and circumstances such that District Justice Cook made an independent finding of probable cause of evidence of a crime at apartment 5, 627 North Center Avenue, Somerset, Pennsylvania.

A.3. Search Warrant No. 2.

29. Initially, Primo argues that evidence obtained from apartment 5, 627 North Center Avenue, Somerset, Pennsylvania, which resulted in charges against Primo for unlawful delivery under Pennsylvania’s Controlled Substances Act, was actually the product of an illegal search conducted pursuant to “search warrant # 1000603-01”. (Document No. 21, p. 8). Specifically, Primo contends that a thorough search of apartment 5 was conducted by officers prior to McGuire securing a second search warrant. Id. at pp. 8-10. Thus, any evidence obtained during this search should be suppressed as fruit of the poisonous tree. Id.

30. Primo also argues that Somerset Borough police officers lacked probable cause to perform an exhaustive search of apartment 5 because the green vegetable matter was omitted from the initial inventory sheets prepared by Pile. Consequently, Primo states that this omission of the green vegetable matter from the Receipt/Inventory sheets resulted in a lack of the probable cause necessary to support an application for a second search warrant. Id.; Document No. 30, p. 5.

31. Based upon the findings of fact above, the privacy and property interests protected by the Fourth Amendment, an exception to those standards as established by the plain view doctrine, and the narrow standard of this reviewing Court, the Court is convinced that the evidence contained in the McGuire affidavit for Warrant No. 2 provided District Justice Cook a substantial basis to conclude that a reasonable probability existed that evidence of illegal drug activity would be located inside apartment 5, 627 North Center Avenue, Somerset, Pennsylvania. Specifically, the arrest and subsequent seizure of crack cocaine and United States currency from Sherman, a known relative of Pri-mo, supported McGuire’s belief that additional drug violations would be found in apartment 5, 627 North Center Avenue. Furthermore, pursuant to the execution of Warrant No. 1, once inside apartment 5, McGuire observed a green vegetable material next to a stolen television, and based upon his years of experience and training, McGuire determined that the green vegetable matter was marijuana. McGuire also stated in the affidavit for Warrant No. 2 that based upon the surveillance of 627 North Center Avenue, Somerset, Pennsylvania, pedestrian traffic consistent with drug activity was observed at that location. Accordingly, this Court finds that District Justice Cook had a substantial basis for determining probable cause existed in order to issue Warrant No. 2.

32. The Court also determines that Primo’s assertion that Somerset Borough police officers, namely Pile, conducted a search of apartment 5 while McGuire went to secure a second search warrant is without support. See Document Nos. 21 and 30. Specifically, in his Motion to Suppress Evidence and in Defendant’s Post-Hearing Brief In Support of Motion to Suppress Evidence, Primo requests this Court to infer that officers conducted an illegal search of apartment 5. Id. However, the Court determines that based upon the finding of facts above, and based upon a review of the testimony provided by McGuire and Pile during the suppression hearing, the “credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence”, Leveto, 343 F.Supp.2d at 442 (quoting United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir.1993)), weigh in favor of McGuire and Pile’s recounting of events. Accordingly, the Court determines that the evidence seized during the execution of Warrant No. 2 shall not be suppressed as fruit of the poisonous tree, and Primo’s Motion to Suppress Evidence based upon lack of probable cause in Warrant Nos. 1 and 2 is denied.

B. Reasonable Expectation of Privacy to Challenge Search Warrant Nos. 3 and 4.

B.l. Standard of Review

33. Primo argues in his Motion to Suppress Evidence (Document No. 21) and in his Post-Hearing Brief in Support of Motion to Suppress Evidence (Document No. 30), that all items seized pursuant to Warrant No. 3 should be suppressed as the warrant was not supported by probable cause.

34. Conversely, the Government asserts as a threshold matter that Primo lacks a reasonable expectation of privacy in the residence located at 364 West Patriot Street, Somerset, Pennsylvania, and Primo lacks a reasonable expectation of privacy in the safe located in the bedroom he once rented at 364 West Patriot Street. (Document No. 24, pp..20-28). Accordingly, the Government asserts that Primo has no legitimate expectation of privacy in either circumstance to challenge the issuance of Warrant Nos. 3 and 4.

35. Initially, the Court observes that Primo bears the burden to establish his expectation of privacy in the bedroom searched at 364 West Patriot Street, and in the contents of the safe found inside the bedroom. United States v. Perez, 280 F.3d 318, 338 (3d Cir.2002). If Primo fails to 'establish a “legitimate expectation of privacy” in the areas searched with regard to Warrant Nos 3 and 4, then Primo is foreclosed from asserting a challenge that these warrants were executed illegally by Somerset Borough police officers. United States v. Felton, 753 F.2d 256, 259 (3d Cir.1985) (quoting Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980)) (cited in Conley, 856 F.Supp. at 1015-1016); see Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 38