The opinion of the court was delivered by: MARY LITTLE PARELL
This matter comes before the court on motion by criminal defendants, Gi Hun Jen, An Di Li, Chun Ming Li and Ming Shan Lu, to suppress evidence on the basis that it was obtained as the result of an illegal search and seizure. For the following reasons, the motion to suppress is granted.
The facts, as determined by the court, have been ascertained from (a) the affidavit of Kevin R. Ryan, Special Agent of the United States Immigration & Naturalization Service, dated May 28, 1993, which was submitted in support of the criminal complaints filed against the defendants;
(b) two Jersey City Police Department reports filed by James Witanek on May 21, 1993 and May 24, 1993;
and (c) the testimony of Sergeant James McGuire of the Jersey City Police Department and of Special Agent Brian Mallon of the United States Immigration & Naturalization Service which was given at the hearing on this matter held on November 1, 1993.
Sometime in May, 1993, representatives of New Jersey Bell Telephone noticed that an unusually large number of calls were being made to China from telephone numbers recently connected at 239 Barrow Street in Jersey City. The phone company records indicated that a Chinese restaurant was located at 239 Barrow Street. James Witanek, the assistant manager of security at New Jersey Bell Telephone, went to 239 Barrow Street and discovered that it was a warehouse or garage with all visible entrances completely padlocked from the outside.
Mr. Witanek returned several times to investigate the matter and on each occasion found that the premises continued to be padlocked from the outside. Fearing that perhaps a fraud was being perpetrated on the telephone company, Mr. Witanek went to the Jersey City Police Department on May 21, 1993 and registered a complaint. On the morning of May 24, 1993, Mr. Witanek returned to the Jersey City Police Department and discussed the matter with Sergeant James McGuire. At some point during their discussion Mr. Witanek left for a few minutes to call the telephone company. When he returned he informed Sgt. McGuire that the phone lines located at 239 Barrow Street were currently in use and requested that the police accompany him to 239 Barrow Street.
At approximately 10:45 a.m., Sgt. McGuire proceeded to call the Emergency Service Unit ("ESU") of the Jersey City Police Department. When the officers from ESU arrived they placed a ladder up against the garage at 239 Barrow Street, climbed up on top of the roof of the garage and peered into the two opened windows on the second story. The officers observed that there were metal bars on the windows and that a large number of Oriental males were inside on the second floor. The officers tried to communicate with the individuals inside, both in English and Vietnamese, but got no response. Sgt. McGuire testified that upon learning that a large number of individuals were inside the building, and given the fact that there was no apparent way for these individuals to readily exit the building, he felt that there was a public safety emergency because the individuals were confined within the building.
Sgt. McGuire then contacted the Del Forno Realty Company, the realty agent for 239 Barrow Street, and requested that someone from the company deliver to the premises the keys for the padlocks, if they had them. At approximately 11:15 a.m., Mr. Vito Del Forno and Mr. Lawrence Perlaki, who are both employed by the realty company, came to 239 Barrow Street and unlocked the padlocks in order to allow the police to enter.
The officers entered and found inside approximately sixty-one individuals of Chinese descent. Prior to entering the premises at 239 Barrow Street, no attempt was made by the police to determine the identity of the tenant renting the premises or to contact the tenant. Once inside, at approximately noontime, the officers contacted the United States Immigration & Naturalization Service ("INS").
Special Agent Brian Mallon of the INS, accompanied by two other INS agents, subsequently arrived at 239 Barrow Street between approximately 1:00 and 2:00 p.m.. Neither the police officers nor the INS agents were able to communicate with any of the sixty-one individuals at 239 Barrow Street. Agent Mallon contacted a translator and had her speak over the phone with a few of the sixty-one individuals who were willing to cooperate in order to figure out what was going on. A couple of hours later another INS agent arrived at 239 Barrow Street and he was able to communicate with a few of the sixty-one individuals. It was determined that the sixty-one individuals were illegal aliens from China. Based upon interviews with some of the individuals, the government received information to the effect that approximately fifty-seven of these individuals were being held inside 239 Barrow Street against their will until payment was made for their release and that at least four of the remaining individuals were responsible for maintaining order and preventing escape.
At least one of the phones at 239 Barrow Street was located on a table on the first floor. When Agent Mallon used this phone he observed various types of documents
lying on, around and underneath the table which he recognized, based on his experience in handling similar investigations, to be alien smuggling records. According to Agent Mallon, there were many documents strewn all about on the first floor. Some of these documents were under personal effects, such as clothing and mattresses lying directly on the floor. Agent Mallon noticed some crumpled up papers stuffed into a hole made in a wall down near the baseboard. As he began to pull the papers out of this hole he reached his arm through the hole and, in so doing, discovered two handguns wrapped in a towel which had also been stuffed inside the hole. None of the documents were marked for identification as they were discovered. During the course of the investigation at 239 Barrow Street, one of the INS agents on the premises heard a beeper go off and, by following the sound, discovered a beeper stuffed inside a hundred pound bag of rice lying against a wall on the first floor. Two other beepers were also discovered at 239 Barrow Street.
During the time that the police officers and the INS agents were performing their investigation at 239 Barrow Street, the sixty-one individuals were secured on the second floor. Individuals were permitted onto the first floor for limited purposes, such as talking on the phone to the translator. Agent Mallon testified that he was at 239 Barrow Street for approximately two hours before he began picking up documents and examining them, that he was there approximately three or four hours before the beepers were discovered, and that he was there for six hours before he discovered the guns. All of this evidence was discovered on the first floor.
On June 2, 1993, a two count indictment was filed against the seven named defendants in this criminal action.
Count One charges the defendants with conspiring between March 30, 1993 and May 27, 1993 to harbor illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(C) and 18 U.S.C. § 371. Count Two charges the defendants with harboring illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(C) and with aiding and abetting the harboring of illegal aliens in violation of 18 U.S.C. § 2. On October 27, 1993, the government filed a superseding indictment which added two additional counts. One of the additional counts charges defendants with hostage taking in violation of 18 ...