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 ...