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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 witness testimony.*fn2

  Officers' Testimony

  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 kitchen table.

  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 marijuana.

  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 drugs found.

  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.

  Defendants' Testimony

  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 driver's license.

  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 door.

  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 ...

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