United States District Court, D. New Jersey
September 29, 2004.
United States of America,
David Santos; Ivonne Marrero, aka Ivonne Coloma, aka Ivonne Santos, Defendants.
The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge
This matter is before this court on defendants David Santos'
and Ivonne Marrero's*fn1 motions to suppress evidence recovered in connection with a
search of defendant David Santos' apartment located at 408 Summer
Avenue in Newark, New Jersey. The question presented is whether
the Fourth Amendment's exclusionary rule applies to the fruits of
this search, namely weapons, drugs and drug paraphernalia
recovered from the apartment, as well as statements made by
defendant David Santos to agents of the Newark Field Division of
the Drug Enforcement Administration ("DEA") subsequent to his
arrest. This Court finds that the search of the apartment at 408
Summer Avenue violated Defendants' Fourth Amendment right to be
free from unreasonable searches and seizures. The statements of
Mr. Santos, obtained in connection with the illegal search and
seizure, were tainted by the initial search's
unconstitutionality. Therefore, Defendants' motion to suppress
the evidence seized from the apartment, as well as David Santos'
motion to suppress his post-arrest statements, shall be granted.
In cases such as these, where judgment rests on sorting out
competing versions of the facts, issues of credibility are key.
The Court is presented with vastly different versions of what
occurred in the early morning hours of August 3, 2002. This Court
must look at the totality of circumstances, and determine which
version of the facts has the appeal of logic, common sense, and reason. The following outlines the essential elements of each
party's version of the facts, as distilled from nine days of
The government called detectives Ojeda, Vasquez, Walker, and
DEA Special Agent Beckett to the stand Notably, Lieutenant
O'Conner, the detectives' supervising officer on the night in
question, did not testify. The government witnesses claim that at
approximately 1:00 a.m. on August 3, 2002, Lieutenant O'Connor,
and detectives Brown, Vasquez, Ojeda, and Walker, all members of
the Auto Theft Task Force of the Newark Police Department, were
traveling in three unmarked police vehicles southbound from
Arlington Avenue in tandem formation on Summer Avenue in Newark,
New Jersey, on routine patrol. Lieutenant O'Connor (in the lead
vehicle) observed a red Ford Explorer sports utility vehicle (the
"SUV") parked on Summer Avenue with a license plate hanging askew
from the rear of the vehicle. Several males were approaching the
vehicle. Lieutenant O'Connor, aware that the area was known for a
high incidence of stolen cars, initiated a tactical maneuver
whereby the officers "boxed-in" the SUV by placing their cars
immediately in front, behind, and adjacent to the parked SUV. As
the officers moved into the tactical position, David Santos
passed a black bag to one of the other males with him, the only
juvenile in his company, continued walking to the SUV, and
entered it on the driver's side. A third male, in the meantime,
dropped three clear plastic bags to the ground. The black bag was
later determined to contain over $10,000 in cash. The clear
plastic bags contained approximately 50 grams of uncut cocaine. The officers exited their vehicles and Mr. Santos was asked for
his driving credentials. The other individuals, who were not in
control of the motor vehicle, were not asked for identification.
Mr. Santos told Detective Vasquez that his driver's "license was
up in me and my girl's apartment." The officers were directed by
Mr. Santos to retrieve his license from his apartment. Once the
officers were satisfied the car was not stolen, two detectives
proceeded to 408 Summer Avenue, a multi-family house with one
single family apartment on each of the two floors. Mr. Santos'
apartment, the officers were told, was on the second floor.
After entering the apartment building through an unlocked front
door, the officers walked to the second floor and knocked on a
door marked #2. They waited several minutes with no response, and
started back downstairs when they heard a female voice say
"wait." Ivonne Marrero opened the door which entered into the
apartment's kitchen. While questioning Ms. Marrero as to whether
she had Mr. Santos' driver's license, they observed behind her
various narcotics and measuring instruments in plain view on the
The officers entered the apartment. While securing the
premises, the police found Ms. Marrero's six-year old son asleep
on a mattress in the bedroom of the apartment which lay directly
on the floor. The officers observed the nose of a weapon
protruding from under the mattress. After removing the child, and
searching under the mattress, the officers found several other
weapons (including a two-shot rifle and various pistols) and
numerous boxes of ammunition. The officers also found additional
narcotics and drug-related paraphernalia on and under the kitchen
table including substantial amounts of cocaine, heroin, and
After securing the premises, Lieutenant O' Connor yelled down
from the apartment window for the officers to place Mr. Santos
under arrest. Officer Brown was summoned upstairs and asked to bring a consent-to-search form, which Lieutenant O'
Connor read to Ms. Marrero, and which she voluntarily signed.
Mr. Santos, Ms. Marrero, and two of the males with Mr. Santos
were arrested, charged with narcotics and weapons offenses, and
taken to a Newark police precinct. Mr. Santos was also written a
summons for not having a driver's license. The DEA was contacted
to consider federal prosecution of the case given the quantity of
Within a few hours of arriving at the Newark police precinct
Mr. Santos met with DEA Special Agent Carl Beckett, who was
accompanied by his supervisor, Tracy Childress, as well as
Lieutenant O' Connor and a Sergeant Melilo. Agent Beckett
explained who he was, told Mr. Santos that he was in a lot of
trouble, and stated that it was in his best interest to
cooperate. Mr. Santos told Agent Beckett that his cooperation was
contingent on having his girlfriend, Ms. Marrero, released. Agent
Beckett made no promises, but represented that he would attempt
to have the federal charges against Ms. Marrero dropped.
Several hours later Agent Beckett returned to the Newark police
precinct with his partner, Cliff Spencer, and Tracy Childress.
Mr. Santos was transported to the DEA building whereupon Agent
Beckett interviewed Mr. Santos with Agent Spencer and Detective
Vasquez present. Mr. Santos was given Miranda warnings, but he
declined the assistance of counsel. Mr. Santos made incriminating
statements including the fact that he had been on his way to his
drug supplier, and statements regarding his procurement of the
narcotics and weapons. Mr. Santos also provided information and
cooperation with respect to the alleged source of the narcotics.
The Defense called Victor Camacho, who was with Mr. Santos on
the night in question, Tarrance Vincent, a resident of Summer Avenue, his mother Andrea
Vincent, and defendants David Santos and Ivonne Marrero to the
stand Not surprisingly, the Defense witnesses' version of the
facts is markedly different from that offered by the government.
According to the defense, on August 3rd Victor Camacho,
AO,*fn3 Enrique Vega, and Darwen Abudeye, arrived at David
Santos' apartment around one in the morning to return Santos'
SUV, which they had borrowed. After these individuals rang Mr.
Santos' apartment bell (located on the first floor of the house),
Mr. Santos came downstairs from his second floor apartment at 408
Summer Avenue and exited the apartment building. While still on
the porch of the house, Mr. Santos' cell phone rang and he passed
the bag he was carrying, which contained over $10,000 in cash, to
AO in order to answer the call. As he approached the SUV, but
before he entered it, three unmarked police cars pulled up and
five officers exited their vehicles. Detective Walker approached
Mr. Santos first, and asked for papers for the car, which Mr.
Santos retrieved by reaching into the SUV. Lieutenant O' Connor,
in the meantime, approached Mr. Santos from his other side
holding a gun to his head.
Mr. Santos, Mr. Vega, and Mr. Camacho were handcuffed and
placed in a seated position on the ground in the street behind
the SUV and in front of one of the police cars. AO and Mr.
Abudeye were placed in the police car. Mr. Santos was asked where
he was coming from to which he replied, "my girlfriend's house
but she wasn't home," and indicated that the house was in the
opposite direction, in fact, of where the 408 Summer Avenue
apartment was located. Mr. Santos was never asked for his
While Mr. Santos was seated on the ground, Lieutenant O' Connor
checked his pockets and removed his keys. Keys were also taken
from Mr. Camacho and Mr. Vega. Lieutenant O' Connor and detectives Ojeda and Brown went to several homes
alongside of 408 Summer Avenue and attempted to gain entry with
the obtained keys because they were uncertain of Mr. Santos'
accurate apartment location. At some point one of the detectives
stated that he saw the detained individuals come from the
apartment house number 408. Lieutenant O' Connor and detectives
Walker and Ojeda entered the building by unlocking the front
Ivonne Marrero, Mr. Santos' girlfriend, was asleep with her son
on a couch in Mr. Santos' living room in the 408 Summer Avenue
apartment. Ms. Marrero had been to a restaurant with Mr. Santos
earlier in the evening, and had been brought back by Mr. Santos
to his apartment. Sometime after 1:00 a.m., Ms. Marrero was
awakened by the sound of voices. Ms. Marrero left her son in the
living room and saw lights from flashlights in an adjacent empty
room. She walked through the empty room, into the kitchen, where
she saw three officers with flashlights and guns drawn. The
officers asked her who else was in the apartment, and whether she
knew David Santos. They also asked her for identification. Ms.
Marrero produced two forms of photo identification and one
checkbook. Two of these items noted her address in Passaic, and
one documented an address in Paterson. Nothing in her possession
identified her home as 408 Summer Avenue. The officers had Ms.
Marrero sit at the kitchen table while they searched the
apartment. As the officers found narcotics and weapons, located
in the bedroom closet, they put the items before Ms. Marrero and
asked her what she knew about them. No drugs or drug
paraphernalia were located anywhere in the kitchen. No weapons
were located under the bed, or behind the door. At about 1:45
a.m. they placed a blank consent form before her and told her to
sign it. Ms. Marrero was not asked to read the form, nor was it
read to her. As she attempted to review the document, the
officers banged their flashlights on the table and told her that if she did not sign the paper, they would notify [The
Division of Youth and Family Services] and she would not see her
son again. In response to their threats, Ms. Marrero signed the
The defendants were initially taken to the Newark police
precinct. Mr. Santos was questioned by Newark police officers and
Agent Beckett while at the precinct, and again by Agent Beckett
once he was moved to the DEA building. Mr. Santos requested
counsel but was told that securing counsel would take time, and
he would be unable to help in securing Ms. Marrero's release if
counsel were provided. Mr. Santos was also told that if he did
not make a statement, Ms. Marrero would be charged with the drug
charges. At no point was Mr. Santos read his Miranda rights.
I. LEGAL STANDARD ON A MOTION TO SUPPRESS
Federal Rule of Criminal Procedure 41(h) provides that "[a]
defendant may move to suppress evidence in the court where trial
will occur, as Rule 12 provides." Fed.R. Crim. Pro. 41(h). Rule
12 provides that suppression motions should be made prior to
trial. See Fed.R. Crim. P. 12 (b)(3)(C). The burden is on the
defendant to establish the necessity for the hearing. U.S. v.
Foster, 287 F. Supp. 2d 527 (D. Del. 2003) (citing U.S. v.
Rodriguez, 69 F.3d 136, 141 (7th Cir. 1995)).
The Fourth Amendment right to be free from unreasonable
searches and seizures is a personal right and a defendant must
establish standing in order to assert that right. See U.S. v.
Padilla, 508 U.S. 77, 81-82 (1993). Once standing is
established, a defendant who files a motion to suppress
ordinarily carries the burden of proof. United States v.
Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128,
130 n. 1 (1978)). However, where a search is conducted without a
warrant, as is the case here, the burden shifts to the Government
to demonstrate by a preponderance of the evidence that the
warrantless search was conducted pursuant to one of the
exceptions to the warrant requirement. U.S. v. Hebron,
243 F. Supp. 2d 90 (D. Del. 2003) (citing U.S. v. Herrold,
962 F.2d 1131, 1137 (3d Cir. 1992)). In determining whether a waiver was
voluntarily given, an enumerated exception to the warrant
requirement, a court must consider the totality of the
circumstances. U.S. v. Hollis, 387 F. Supp. 213 (D. Del. 1975)
(citing Boulden v. Holman, 394 U.S. 478, 480 (1969)).
A. Initial Stop
This Court must first determine whether the officers had
reasonable suspicion to stop and detain defendant David Santos,
and probable cause to arrest him.
Detective Walker, who was in a police vehicle with Lieutenant
O'Connor on the night in question, testified that as the officers
drove down Summer Avenue Lieutenant O'Connor noticed that a red
SUV had a hanging license plate and directed Walker's attention
to the plate. (1/8/04 Tr. at 9-10.) A hanging license plate can
be a sign that the plate was hastily affixed. The skewed plate,
coupled with the fact that the car was located in a high crime
neighborhood known for stolen cars, suggested to the officers
that there was some probability that the car was stolen. Upon
noticing the plate at least two officers, Lieutenant O'Connor and
Detective Ojeda, observed men who were approaching the SUV pass a
black bag from one individual to another. (1/8/04 Tr. at 90; 3/24/04 Tr. at 128-29.)*fn4 To the
observing officers, this appeared to be a drug transaction. As
the officers moved into position Mr. Abudeye dropped several
small plastic bags to the ground which were later determined to
contain narcotics. (Tr. 3/24/04 at 129-30.) Together, these facts
gave rise to the officers' suspicion that criminal activity was
afoot. Detective Walker, however, further testified that the fact
that the men approaching the car were Hispanic also contributed
to his suspicion of wrongdoing.*fn5
While this Court is deeply troubled by Detective Walker's
statements, this Court must assess the stop's legality on the
basis of objective factors available to the officers at the time,
and not an individual officer's subjective intent. U.S. v.
Hawkins, 811 F.2d 210, 214 (3d Cir. 1987) ("the fact that the
officer does not have the state of mind which is hypothecated by
the reasons which provide the legal justification for the
officer's action does not invalidate the action so long as the
circumstances, viewed objectively, justify that action.") (citing
Scott v. United States, 436 U.S. 128, 138 (1978)).
In this instance, the circumstances attending the stop
including the hanging license plate, passage of the bag, late
hour, and high crime area, were sufficient to "warrant a man of reasonable caution in the belief that the action taken was
appropriate." U.S. v. Bonner, 363 F.3d 213, 219 (3d Cir. 2004)
(quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)); see U.S.
v. Cortez, 449 U.S. 411, 417-18 (1981) (stops are justified
where police officers have "a particularized and objective
basis for suspecting the particular person stopped for criminal
activity") (emphasis added).
This Court finds that the officers had cause to stop the
individuals for a limited period.*fn6 See U.S. v.
Arvizu, 534 U.S. 266, 273 (2002) ("Because the `balance between
the public interest and the individual's right to personal
security,' . . . tilts in favor of a standard less than probable
cause in such cases, the Fourth Amendment is satisfied if the
officer's action is supported by reasonable suspicion to believe
that criminal activity `may be afoot,'") (citations omitted).
However, the legal justification only extends to the initial
investigatory stop. See U.S. v. Brignoni-Ponce, 422 U.S. 873,
882 (1975) (after initial investigatory stop, and limited
questioning regarding suspicious circumstances, "any further
detention or search must be based on consent or probable cause.")
Absent evidence of illegal wrongdoing by Mr. Santos, there was
no probable cause to arrest and detain him. Ybarra v. Illinois
444 U.S. 85, 91 (1979) (where the standard is probable cause, the
search or seizure must be supported by probable cause
particularized with respect to that person, the requirement
cannot be undercut simply by the fact that there exists probable cause to search and seize another). According to the officers,
Mr. Santos was not placed under arrest until Lieutenant O' Connor
informed the officers that drugs had been found in his apartment.
(1/8/04 Tr. at 34-35; 3/23/04 Tr. at 26-27; 4/02/04 Tr. at 5.)
Without this evidence, the officers had no probable cause to
believe that David Santos had committed, or was about to commit
an offense. See Brinegar v. U.S., 338 U.S. 160, 175-76 (1949)
(probable cause exists where facts and circumstances exist that
an offense has been or is being committed). Because, as discussed
below, this Court finds the search of the apartment to have been
illegal, the subsequent arrest of Mr. Santos, predicated on the
illegal search, was also unlawful.
B. Consent to Enter Apartment
This Court is not persuaded that Mr. Santos directed the
officers to retrieve his license. In fact, no officer was able to
testify that they personally received instructions from Mr.
Santos to enter his apartment. Rather, Detective Walker stated
"[b]ased on Detective Vasquez and Ojeda, it was Mr. Santos' idea
for them to go upstairs and retrieve the driver's license from
his girlfriend. That's what they told me." (1/8/04 Tr. at 65).
Detective Ojeda testified that Lieutenant O'Connor told him that
Detective Vasquez obtained the information about the whereabouts
of Mr. Santos' license, including the address of his apartment.
(3/24/04 Tr. at 188.) Detective Ojeda also testified that to his
knowledge, Detective Vasquez was the only one who questioned Mr.
Santos at the scene. (3/24/04 Tr. at 131.)
Officer Vasquez, however, testified as follows on the witness
Officer Vasquez: He told me, my license is upstairs
in me and my girl's apartment.
He never said go get it.
Mr. Turano: He never said, go get it? Officer Vasquez: Right. He never made any statement
like that to me.
(3/24/04 Tr. at 33.)
Detective Vasquez further testified that Mr. Santos did not
tell him where the apartment was located. (3/23/04 Tr. at 14).
While Detective Vasquez testified that he was under the
impression that Mr. Santos may have provided Lieutenant O'Connor
with the location of the apartment (3/24/04 Tr. at 52), he also
testified that he did not personally overhear such a
conversation. (3/24/04 Tr. at 51.) Moreover, Mr. Santos was never
out of Detective Vasquez' sight, with the exception of ten
seconds, when he put his head in the SUV to check for signs of
forced entry. (3/24/04 Tr. at 50-51.) Without the benefit of
Lieutenant O' Connor's testimony in this case, we are only left
with the testimony of Agent Beckett, who testified that Officer
Ojeda and Lieutenant O'Connor told him only that Mr. Santos had
indicated that his license was upstairs with his girlfriend.
Agent Beckett was never told that Mr. Santos had directed any
officer to get the license. (4/2/04 Tr. at 161-62).
The following facts in the record also cast doubt on the
veracity of the officers' claims. First, the officers admitted
that it was possible to confirm whether Mr. Santos' possessed a
valid license plate by radioing to headquarters, as opposed to
entering an unknown apartment in an area known for crime at one
in the morning.*fn7 (3/23/04 Tr. 49-50.) In fact, Officer
Ojeda conceded that in the vast majority of cases, license
identification is checked via radio dispatch, (3/24/04 Tr. at
213.) In this instance Lieutenant O'Connor made the decision to
retrieve the license from the apartment as opposed to calling in
to check via radio dispatch. (4/2/04 Tr. at 59.) Detective
Vasquez, however, stated that he believed that the radio
dispatcher was called to determine whether the SUV was stolen.
(3/23/04 at 47.) There was no satisfactory explanation provided
for why the officers would not have also checked with the
dispatcher as to whether Mr. Santos was licensed to drive a motor
vehicle, as opposed to seeking to enter an apartment at one in
the morning in a high crime area, at great risk to themselves.
The record also indicates that the outside door to the house at
408 Summer Avenue springs shut on its own (4/05/04 Tr. at 9), and
automatically locks. (3/24/04 Tr. at 86-87; 4/19/04 Tr. at
21-22.) Although Officer Ojeda claims the door was open when the
officers entered the building (3/24/04 Tr. at 133), again, this
seems highly unlikely given the late hour, and the fact that the
building was located in a high crime neighborhood.
Also, Tarrance Vincent, a witness called by the defense and a
resident of Summer Avenue, testified to being in the vicinity of the apartment house
on the day in question, and observing officers going to several
doors on the block attempting to gain entrance with keys. This
testimony corroborates Mr. Santos' and Mr. Camacho's testimony
that the officers tried to gain entry to several houses on the
block with the confiscated keys in an attempt to find Mr. Santos'
apartment. (4/19/04 Tr. at 54-55; 4/5/04 Tr. at 58-60.) Although
Mr. Vincent did not testify to the correct time at which the
events in question occurred, he correctly described certain
details of the officers' outfits, such as the fact that they were
not in police uniforms, but rather had either blue or black pants
on, and had gold patches on their jackets. (1/8/04 Tr. at 7-8;
3/23/04 Tr. at 5; 3/24/04 Tr. at 90-91.) This Court found Mr.
Vincent to be a credible, disinterested witness, and believes
that he simply confused the time at which the incident occurred.
This Court has also considered evidence that the word "keys"
was added to the inventory list of personal property taken from
Mr. Santos by the Newark police in a different color ink than
that of the other eight items that were recovered and listed
before the final entry, "keys". (3/23/04 Tr. at 61-62.) The
property was inventoried at the police precinct on the same night
that Mr. Santos was taken into custody. (3/23/04 Tr. at 61,63.)
Detective Vasquez testified that he prepared the inventory
report, placed the contents in the property bag, and sealed the
bag. (3/23/04 Tr. at 63-64.) However, upon examination, the bag
was unsealed. (3/23/04 Tr. at 61.) It appears to this Court that
an officer added the keys to the evidence bag after the other
property was inventoried. This lends credence to the theory that
the officers took the keys from Mr. Santos at a different time
(namely at the scene of the arrest to gain entry to the
apartment), rather than when they took the rest of the property
on Mr. Santos' person. See 4/19/04 Tr. at 72 (testimony of Mr. Santos stating that the property on his person,
such as jewelry, etc. was taken at the precinct).
Finally, this Court notes the fact that it strains credulity to
believe that Mr. Santos would have sent police officers to an
apartment full of drugs and weapons to retrieve a driver's
license; particularly when the penalty for not having a driver's
license amounts to at most a fine. Additionally, there is no
testimony from either party to lead one to believe that any other
inducement existed requiring Mr. Santos to retrieve his license.
This scenario becomes even more implausible when coupled with
the uncontested fact that Mr. Santos had a driver's permit in his
pocket throughout the period he was detained, the only type of
driver's license which he owned. (Gov. Exh. 8/Def. Exh. 2; 1/8/04
Tr. at 71; 4/19/04 Tr. at 34.)
The evidence considered in its totality leads this Court to
conclude that the officers entered Mr. Santos' apartment dwelling
without any authorization from Mr. Santos to do so. It is evident
that the officers were not on a mission to procure Mr. Santos'
driving credentials, but rather sought to confirm their suspicion
that Mr. Santos was a drug dealer. The officers broke the law
when they seized Mr. Santos' keys without his permission and used
them to gain access to his apartment dwelling. The fact that Mr.
Santos, indeed, appears to have been involved in illegal drug
trade does not negate the fact that the officers' actions
constituted an egregious violation of Mr. Santos' constitutional
rights. See Bell v. State of Md., 378 U.S. 226, 328 (1964)
("The worst citizen no less than the best is entitled to equal
protection of the laws of his State and of his Nation."). C. Consent to Search Apartment
As discussed above, the officers contend that they gained
access to Mr. Santos' apartment by knocking on the door whereupon
Ms. Marrero opened the door. The officers concede that they did
not announce themselves when knocking on the door.*fn8 The
government contends that when Ms. Marrero opened the door, the
officers saw in plain view a large variety of narcotics on the
kitchen table. Again, the officers' testimony is implausible.
First, Mr. Santos' apartment had two doors, one door that
entered into the kitchen, and one door that entered into the
living room. It is unlikely that Ms. Marrero would open the door
to the room where a large stash of narcotics was located on a
kitchen table that was in clear view of the door at 1 a.m. in the
morning. Further, both Ms. Marrero and Mr. Santos testified that
the narcotics were contained in shoe boxes that were kept in the
bedroom closet. (4/16/04 Tr. at 34; 4/16/04 Tr. at 28-29.) While
officers allege that the narcotics were found in plain sight, and
were not contained in shoe boxes, four shoe boxes were listed on
the inventory report. (4/26/04 Tr. at 79-81.)*fn9
Viewing the record in totality, this Court finds that the
officers gained entry onto the premises by using Mr. Santos'
confiscated keys, and that consequently, any contraband that was discovered was not found in plain view. This leads this Court to
the question of whether Ms. Marrero's signing of a consent to
search form vitiated the unlawful nature of the officer's entry.
Putting aside the question of whether Ms. Marrero had apparent or
actual authority to consent to a search of Mr. Santos'
apartment,*fn10 this Court finds that her consent, in any
case, was not voluntarily given.
The Fourth Amendment protects against unreasonable searches and
seizures, however, a search is not unreasonable if a person with
a privacy interest in the items being searched gives free and
voluntary consent. The government has the burden of proving,
through "clear and positive testimony" that the consent to search
was given voluntarily. Schaffer v. Anderson, 224 F. Supp. 184,
186-87 (D. Del. 1963). Consent is voluntary when it is
unequivocal, specific, and intelligently given, uncontaminated by
any duress or coercion. Voluntariness is determined by examining
the totality of the circumstances. Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973).
Ms. Marrero testified that she was told that if she did not
sign the consent form, the officers would put all the charges and
drugs on her, and that she would lose her child. (4/16/04 Tr. at
22-23, 37.) She also testified that the officers banged their
flashlights on the table at which she was sitting, and did not
give her an opportunity to read the consent form. In fact, the
form was not filled out with respect to location, witnesses, and
other items when she signed it. (4/16/04 Tr. at 35). Although Ms.
Marrero's testimony was contradicted by Officer Ojeda, this Court finds her testimony credible.
Under the totality of circumstances, this Court finds that Ms.
Marrero's consent was not voluntarily given, and rather was a
product of police coercion. The coerced environment created by
the threat of having a small child removed from a parent's
custody cannot be overstated. See U.S. v. Ivy, 165 F. 3d 397
(6th Cir. 1998) (finding that police officer's obtaining of
individual's signature on a consent form through threats of
arresting the individual and taking her child constituted
"objectively improper police action"). The threat, coupled with
the statement that if she did not cooperate drug charges would be
brought against her, and the banging of the flashlights on the
table at 1 a.m. in the morning while a six-year old child was
sleeping in the other room, together created a coercive
environment such that Ms. Marrero's consent to search the
apartment must be deemed involuntary. Because this Court does not
find that drugs and weapons were found in plain view at the 408
Summer Avenue apartment, all evidence seized from the apartment
D. Statements Made by Mr. Santos While in Custody
This Court, finding that the search and seizure of contraband
found in Mr. Santos' apartment was illegal, and the arrest
occasioned by the seizure also illegal, must now determine
whether the subsequent statements made to Agent Beckett by Mr.
Santos should also be suppressed as the "fruit of the poisonous
tree", or whether they are sufficiently attenuated from the
constitutional violations that preceded them. This determination
relies on the consideration of three factors, namely "the
temporal proximity of the arrest and confession, the presence of
intervening circumstances, and the purpose and flagrancy of the
official misconduct." Brown v. Illinois, 422 U.S. 590, 603-04
(1975) (citations omitted). Mr. Santos made two statements to Agent Beckett once taken into
custody. The first statement was given a few hours after his
arrest in the Newark police precinct. (4/19/04 Tr. at 76, 78;
4/2/04 Tr. at 121-22.) Agent Beckett testified that he did not
give Miranda warnings to Mr. Santos at this time because he had
been told by Lieutenant O' Connor that Mr. Santos had already
been mirandized. (4/2/04 Tr. at 122.) Several hours later, in the
late afternoon of August 3rd, Mr. Santos was transferred to the
DEA building where he was questioned by Agent Beckett. Agent
Beckett's partner, Cliff Spencer, and Officer Vasquez were also
present. (4/2/04 Tr. at 128.) At this time, Mr. Santos was read
Miranda warnings, and subsequently made incriminating statements
regarding his procurement of the narcotics, and provided
information about his source.
It is clear to this Court that Mr. Santos' first unwarned
statement is inadmissible given its close proximity to the
initial illegal arrest, and the lack of any intervening
circumstances sufficient to purge the taint of the initial search
and seizure of drugs and weapons in the apartment. The second
statement is also inadmissible. Although such factors as
intervening time, removal of the prisoner to a different place,
and change in identity of interrogators can make a second, warned
statement voluntary, despite even a prior involuntary statement,
this Court does not find these factors present in this case.
Oregon v. Elsted, 470 U.S. 298, 310 (1985) (noting passage of
time, change in location, and change in identity of
interrogators, as factors relevant to determination of whether
second confession is tainted by initial illegally coerced prior
First, although the second interview took place in the DEA
building, Officer Vasquez, one of the arresting officers, was
present. Second, although 18 hours separated the statement from the initial arrest there was no "clean break" between the
time of the arrest and statement. U.S. v. Daniel, 932 F.2d 516,
521 (6th Cir. 1991) (statement admissible where there was a
"clean break" from the circumstances surrounding the first,
allegedly coerced statement). This is not a situation, like that
in Wong Sun v. United States, 371 U.S. 471 (1963), where the
defendant was released and returned voluntarily to make further
statements to the police. Not only was Mr. Santos not released,
but he was not provided with a bed. Consequently, the interval
between the arrest and statement was not interrupted with an
opportunity to sleep. (4/19/04 Tr. at 58-59.)
Most importantly, Mr. Santos' statements were made to protect
Ms. Marrero from prosecution. While confessions which law
enforcement procures that are motivated by a desire to protect a
third party do not necessarily undermine the voluntary nature of
such confessions; in this case such circumstances demonstrate the
intimate connection between the illegal seizure of evidence from
the apartment, and Mr. Santos' subsequent statements. "The
central question is whether `the evidence to which instant
objection is made has been come at by exploitation of that
illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.'" Brown at 599 (citing Wong Sun
Agent Beckett testified that "It appeared that [Mr. Santos]
didn't want to speak to me, but he had some concerns about his
girlfriend . . . He basically was concerned for Ms. Marrero's
well-being, whether or not she was going to be charged with what
was found. He basically his cooperation was contingent on
whether or not I would be able to help her out." (4/2/04 Tr. at
122-123.) Agent Beckett noted Ms. Marrero was a topic at both
conversations with Mr. Santos. (4/05/04 Tr. at 15.) Agent Beckett
also stated that he told Mr. Santos that Ms. Marrero was looking
at spending 10 years in jail. (4/05/04 Tr. at 15.) Such
statements were directly related to the quantity of drugs found in Mr. Santos' apartment, drugs which
were illegally seized.
The government cites Thompson v. Haley, 255 F.3d 1292 (11th
Cir. 2001) for the proposition that statements made by Mr. Santos
in an effort to help himself and his girlfriend should not be
deemed involuntary. In Thompson, the defendant made
incriminating statements when he was told that his girlfriend
might go to the electric chair for a murder he had committed if
he did not confess. The 11th Circuit held that such statements
were voluntary. Thompson is distinguishable from the instant
case because the officers in Thompson had probable cause to
arrest the girlfriend for the commission of the crime. Those
facts are not present here.
When Mr. Santos made statements solely motivated by his desire
to spare Ms. Marrero from being charged with possession of drugs,
the illegality of the officers' search and seizure of those drugs
was exploited. Accordingly, these statements must be suppressed.
. . .
This case brings to mind Justice (then Judge) Cardozo's
well-known adage, "[t]he criminal is to go free because the
constable has blundered." People v. Defore, 242 N.Y. 13, 21
(N.Y. 1926). To be sure, this Court does not relish the prospect
of seeing an individual released who has, and may well in the
future, prey upon society. However, this Court will not allow the
principles articulated by the Fourth Amendment to be clouded by
the identity of the individual whose rights were violated. Law
enforcement must perform its duties within the bounds set forth
by the Constitution. The officers in this case, by forcibly
taking Mr. Santos' keys, illegally entering his apartment, and
coercing Ms. Marrero into signing a consent to search form, acted
as though they were above the law. Such conduct will not be
For the reasons set forth above, Defendants' motions to
suppress evidence seized at Mr. Santos' apartment at 408 Summer
Avenue is granted. Defendant David Santos' motion to suppress
statements obtained in connection with the illegal search is also