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State of New Jersey v. Stanley Cooper


December 5, 2012


On appeal from the Superior Court of New Jersey, Law Division, Union and Middlesex Counties, Indictment Nos. 08-08-0746 and 08-06-1014.

Per curiam.


Submitted September 25, 2012

Before Judges Messano and Lihotz.

We have consolidated these appeals for the purpose of issuing a single opinion.

In A-1049-10, defendant Stanley Cooper appeals from the denial of his motion to suppress: 1) evidence seized from the trunk of a vehicle owned by his sister, Love Cooper; and, 2) a subsequent statement he made to Woodbridge Township police officers. After those motions were denied, defendant pled guilty to eight counts of first-degree robbery, N.J.S.A. 2C:15-1, contained in five indictments returned by the Middlesex County grand jury, as well as a single count of second-degree possession of a firearm by certain persons, N.J.S.A. 2C:39-7(b), in a sixth indictment.

Pursuant to the terms of the plea agreement, the State agreed to dismiss the remaining counts of these six indictments, dismiss several additional indictments in their entirety and recommend an aggregate sentence of thirty years' imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Additionally, defendant preserved his right to appeal the denial of his motions to suppress, and the State agreed that, if he "was successful on [his] appeal," defendant's guilty pleas would be vacated. Defendant was subsequently sentenced in accordance with the terms of the plea agreement.

Defendant raises the following points for our consideration:





We have considered these arguments in light of the record and applicable legal standards. We reverse that portion of the order that denied defendant's motion to suppress physical evidence seized from the trunk of the car pursuant to Love Cooper's consent; we affirm that portion of the same order that denied defendant's motion to suppress the statement he gave to the police. Because the parties agreed that defendant's guilty pleas would be vacated if he was successful on appeal, we remand the matter to the trial court for further proceedings consistent with this opinion.

As to A-1048-10, defendant appeals the denial of his motion to suppress certain statements he made to Linden and Rahway police officials. In Union County, defendant pled guilty to eleven counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree robbery, N.J.S.A. 2C:15-1, contained in Indictment No. 08-08-00746.

Pursuant to the plea agreement, the State agreed to dismiss all remaining counts of the indictment and recommend an aggregate sentence of thirty years' imprisonment with an 85% period of parole ineligibility pursuant to NERA, concurrent to any sentence defendant received in Middlesex County. Defendant preserved his right to appeal the denial of his motion and was subsequently sentenced in accordance with the terms of the plea agreement.

Defendant raises the following issue for our consideration:



We have considered the argument in light of the record and applicable legal standards. We affirm.



At the pre-trial hearing before the Law Division judge in Middlesex County, Woodbridge police officer Carlos Villegas testified that while on patrol at 2:06 a.m. on March 8, 2008, he and his partner, Officer Benigno, received a radio dispatch of an armed robbery in progress at the Quick Chek on Gill Lane.*fn2 Villegas was approximately two miles away from the store and immediately drove toward it.

Villegas was told that the robber, described as a black male wearing dark clothes and a dark ski mask, drove away in a white Chevy Lumina toward Route One. Within minutes, at the intersection of Route One and Gill Lane, Villegas observed a white Chevy Lumina exiting the parking lot of a shopping center. Turning his car around, Villegas drove behind the Lumina, radioed headquarters that he was "going to conduct a felony motor vehicle stop" and requested "a back-up car." When Officers Patrick Harris and Edward Barrett arrived to follow in their police vehicle, Villegas activated his car's emergency lights and sirens.

The Lumina pulled into the parking lot of a Dunkin' Donuts store. Defendant was driving the car. Using the public address system in his police vehicle, Villegas ordered all four occupants out of the Lumina, one at a time, starting with defendant. As defendant followed Villegas's commands, placed the car keys on the roof of the car, and walked backwards toward the police car, Benigno handcuffed him, searched him for weapons and placed him in the backseat of the police vehicle. Villegas repeated this procedure with the front-seat passenger, Love Cooper, who owned the Lumina, and the two rear-seat passengers, Danny Cooper and Tabitha Lee. Other patrol cars had arrived at the scene and each occupant of the Lumina was handcuffed, frisked and placed in a different patrol car. No weapons were found, none of the occupants were questioned, there was no indication that the Lumina was stolen or unregistered and none of the occupants were wearing dark clothing fitting the description of the robber.

Following what Villegas described as "standard procedure," with their guns drawn, Harris and Barrett first approached the Lumina and made sure there "was no one inside the passenger compartment of the vehicle" and then, using the keys, opened the trunk "to see if there [were] any remaining occupants . . . who may be hiding in the trunk." In the trunk, in plain view, Harris saw a black gun, a plastic Quick Chek bag with money, a ski mask, black gloves, a black skull cap and black jogging pants.

Detective David Davis responded to the Dunkin' Donuts parking lot. Defendant and the other three occupants were already in custody and the trunk of the Lumina was open. Another detective arrived and photographed the contents of the trunk, but they were otherwise left undisturbed. The Lumina was "towed to headquarters, and placed in a locked cage." Davis estimated that, given the hour of the night and the response of several vehicles to the parking lot, there may have been only one or two other patrol cars on duty in Woodbridge at the time.

Davis responded to the Quick Chek, conducted interviews there and viewed the store videotape that revealed a woman fitting Love Cooper's description in the store immediately before the robber entered. Davis returned to headquarters and began interviewing the occupants of the Lumina, all of whom were under arrest and in custody. Davis spoke to Love Cooper, took a statement from her and reviewed a "consent to search" form with her. Davis "had her read it, and . . . explain . . . what she felt it meant." Cooper executed the form at 6:58 a.m. and was with the officers when they searched the Lumina's trunk and seized the evidence in question.*fn3

After the State rested, the judge adjourned the hearing and invited both sides to make further submissions. When the hearing reconvened, the State argued that "exigent circumstances" justified the warrantless search of the Lumina's trunk and seizure of the evidence therein. Defense counsel conceded that a "reasonable suspicion" permitted the officers to stop the car, but he argued exigent circumstances did not exist, noting, the officers "yanked these people out of the car with no probable cause . . . placed them under arrest and . . . searched the vehicle."

Observing that the facts were "for all intents and purposes undisputed," the judge concluded "the investigative stop [was] legal and appropriate." However, he also determined that "the search [could not] be sustained on the grounds of exigent circumstances." The judge also concluded the search could not be sustained under "the automobile exception" and granted defendant's motion to suppress. Addressing defense counsel, the judge then stated:

Having said that . . . I would suggest evidence is still going to be admissible based upon the consent search of a defendant who pled guilty and waived any right to challenge that search so I think you should be aware that's the Court's feeling on the actual evidence and its entrance into the case.

The judge entered an order on May 27, 2009, that granted defendant's motion to suppress "the evidence found in the trunk . . . and it shall not be introduced by police testimony."

The State again called Davis as a witness at another evidentiary hearing held the following day. Davis testified that Love Cooper executed a Miranda rights form at 4:12 a.m. on the night in question, waived her rights and supplied a statement that was videotaped.*fn4 Over defense counsel's objection, the videotaped statement, which lasted more than two hours, was played for the judge. We have also reviewed the videotape of the statement.

Davis also testified that he videotaped the process by which he obtained Love Cooper's consent to search the Lumina, which began at 6:42 a.m. Cooper executed the consent form at 6:58 a.m. That tape was played for the judge, and we have also reviewed that videotape. Davis further testified that Love Cooper escorted the officers to the Lumina, a search of the car was conducted and various items were seized from the trunk. Davis subsequently took statements from Tabitha Lee and Danny Cooper.*fn5

After some legal argument on the propriety of Love Cooper's consent, Davis was recalled to the witness stand and testified regarding the statement he obtained from defendant. Davis provided defendant with his Miranda rights at 10:44 a.m. The videotaped statement of defendant was played for the judge, and we have also reviewed that videotape. Immediately thereafter, the judge concluded that defendant's statement resulted from a voluntary waiver of his rights and was freely and voluntarily given. The judge again adjourned the hearing to permit both sides to supply additional legal argument.

The judge rendered an oral decision on the record several weeks later. He determined that Love Cooper's consent was validly obtained, noting, [I]t does not seem . . . that the fact the police had knowledge of the contents [of the trunk] undermine[s] the valid waiver of [a] defendant's rights. Constitutionality of a consent search is based on voluntariness, knowledge of the right to refuse. Nothing about the course of the confession or the consent form suggested coercion or involuntariness . . . .

The judge then considered whether the search incident to Love Cooper's consent was "sufficiently attenuated" from the illegal search of the trunk that occurred "approximately four hours" earlier at the scene. He concluded that it was and denied defendant's motion to suppress.

On June 12, 2009, the judge entered an order denying defendant's motion to suppress "the contents of the search conducted pursuant to the consent granted by Love Cooper . . . ." The order also denied defendant's motion to suppress "his statement given to the police."


Defendant first contends that the search of the trunk of the Lumina cannot be justified under the "inevitable-discovery doctrine," therefore his motion to suppress should have been granted. Pursuant to the inevitable discovery doctrine, evidence may be admissible even though it was the product of an illegal search, "when . . . the evidence in question would inevitably have been discovered without reference to the police error or misconduct, [for] there is no nexus sufficient to provide a taint." State v. Sugar, 108 N.J. 151, 156 (1987) (quoting Nix v. Williams, 467 U.S. 431, 448, 104 S. Ct. 2501, 2511, 81 L. Ed. 2d 377, 390 (1984)).

We agree with defendant that the inevitable discovery doctrine does not apply to the facts presented. However, the judge did not consider the doctrine, and it would appear from the transcripts of the proceedings below that the State never made such an argument. We need not address the issue any further.

We also need not address the first point raised by the State in its opposition brief, i.e., that the initial search of the Lumina was lawful. The State did not file a cross-appeal from the May 27, 2009 order suppressing the evidence found in the trunk of the Lumina. Therefore, the issue of whether it was lawful for the police to open the trunk of the Lumina while in the Dunkin' Donuts parking lot is not properly before us. See State v. Elkwisni, 190 N.J. 169, 175-76 (2007) (since the State failed to appeal from this court's remand order, the issue was not properly before the Supreme Court); Walrond v. Cnty. of Somerset, 382 N.J. Super. 227, 231 n. 2 (App. Div. 2006) (noting that "[i]n the absence of a defensive cross-appeal," issues of alleged error by the motion judge asserted by the respondent were "not properly before us").

We turn to defendant's second point. He argues that the evidence seized from the trunk and his statement to the police should have been suppressed as the "fruit of illegal police conduct." The State counters that 1) Love Cooper's consent provided "an independent exception to the warrant requirement"; and 2) defendant's statement was not the "fruit of illegal police conduct."

Our review is conducted pursuant to well-known guidelines. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (citing State v. Locurto, 157 N.J. 463, 474 (1999)). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

It is axiomatic that "[e]vidence obtained as the fruit of an unlawful search or seizure must be suppressed." State v. Smith, 155 N.J. 83, 100 (1998) (citations omitted). It follows, therefore, that "[a] consent to search that is attributable to police misconduct involving the violations of constitutional rights may be regarded as the product of that unconstitutional conduct and an invalid basis on which to justify a search." Id. at 101 (citing State v. Johnson, 120 N.J. 263, 288 (1990)).

Three factors determine whether subsequently obtained evidence is tainted by a prior illegality: (1) the presence of intervening circumstances between the original illegality and the challenged evidence; (2) the temporal proximity between the original illegality and the challenged evidence; and (3) the flagrancy and purpose of the police misconduct. [Id. at 100-01 (citing Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427 (1975)).]

The motion judge appropriately considered this legal framework to determine whether the securing of Love Cooper's consent was sufficiently attenuated from the illegal search of the trunk of the car at the scene. He relied extensively upon our decision in State v. Chapman, 332 N.J. Super. 452 (App. Div. 2000). There, we "reject[ed] [the] defendant's argument that if the detention was unlawful, the consent necessarily constituted the 'fruit of the poisonous tree.'" Id. at 467 (emphasis added).

In Chapman, based on a vehicle's slow and erratic path, the police stopped the car believing its driver was intoxicated or fatigued. Id. at 456. The defendant, who was driving, could not produce a driver's license and his and the other passengers' answers to the officer's question aroused suspicion. Id. at 456-58. After indicating his intention to issue a summons for failure to have a valid license and a warning for careless driving, the officer sought the defendant's consent to search the car. Id. at 458-59. After the defendant executed the consent form, the officers searched the vehicle and found a large quantity of marijuana. Id. at 459.

Noting "that the facts . . . [were] a far cry from those present in State v. Dickey, 152 N.J. 468 (1998)," we "reject[ed] [the] defendants' contention that the detention ripened into an invalid, de facto arrest." Id. at 465. "We conclude[d] that defendants' detention was supported by an articulable suspicion that criminal activity might be afoot, . . . or at the very least, by the need to assure that allowing the defendants to proceed on their way would not pose a danger to the public." Id. at 465-66 (internal citations omitted).

The motion judge in this case focused on the following comment in Chapman that was unnecessary in light of our holding: "We would reach the same result even were we to find that the detention was unlawful. In that event, we would conclude that [the defendant's] consent to search was sufficiently an act of free will to purge the original taint emanating from the unlawful detention." Id. at 466. In Chapman, we then extensively considered whether "the causal chain between an unlawful detention and evidence discovered afterward [was] broken." Id. at 468 (emphasis added).

We conclude that Chapman is distinguishable from this case. First, it was undisputed that all the occupants of the car, including Love Cooper, were arrested at the scene even before the trunk of the Lumina was opened. See Dickey, supra, 152 N.J. at 472, 473 (where the Court suppressed evidence seized from an automobile "that resulted from [an] illegal detention[,]" despite the defendant's consent later given at the police station). Second, we accept the motion judge's legal conclusion that the initial police entry into the trunk of the Lumina was improper. Therefore, unlike the essential holding in Chapman, there was no independent basis upon which to sustain the observations improperly made in the parking lot. Third, although Love Cooper's consent was obtained later, the evidence was not discovered "afterward," i.e., after the improper conduct; it was discovered, albeit not seized, contemporaneously with the police impropriety. In short, Chapman does not support the legal conclusion that the taint of the illegal search was purged prior to Love Cooper's consent.

In our mind, the facts in this case more closely resemble those presented in Smith. There, based on a tip from a well-known informant, police detained the defendant, who they believed was selling drugs outside an apartment complex in Elizabeth, and seized his keys. 155 N.J. at 89. Police went to the apartment which, based upon the tip, they believed was the location of the defendant's stash of drugs, knocked on the door and received no answer. Ibid. Eventually, they telephonically obtained the consent of the apartment's resident, Stacy Walker, who was in the hospital at the time. Id. at 90. Using one of the keys recovered from the defendant, police entered the apartment and seized a large amount of drugs. Ibid.

Reversing both the trial court's and our denial of the defendant's motion to suppress, the Supreme Court stated:

Although Walker's decision to give consent cannot be ascribed to a single reason or motive, it is clear that it was heavily influenced by the unlawful seizure of the keys from defendant. Walker knew that the police had obtained keys to her apartment from defendant, and that knowledge was a major factor in her decision to give consent to the police to enter the apartment to investigate. [Id. at 101.]

Thus, the Court held that "Walker's consent was not an independent intervening circumstance." Ibid.

Returning to consideration of the "[t]hree factors [that] determine whether subsequently obtained evidence is tainted by a prior illegality," id. at 100, "temporal proximity 'is the least determinative' factor.'" State v. Williams, 192 N.J. 1, 16 (2007) (quoting State v. Worlock, 117 N.J. 596, 622-23 (1990)). Nevertheless, in this case, it weighs in defendant's favor.

Love Cooper's consent was obtained less that five hours after she was arrested, and it followed a continuous path from her arrest at the scene, transportation to police headquarters and interrogation by Davis.

The judge determined that the initial search was not the result of flagrant police misconduct, reasoning that Villegas followed training he received at the police academy in how a "felony motor vehicle stop" should be conducted. He credited the officer's testimony that the trunk was initially opened not to discover evidence, but, rather, to protect the officers from a possible armed assailant. Under our standard of review, and deferring to the judge's opportunity to assess the witnesses who appeared, we will not disturb those findings.

"It is . . . the presence of intervening circumstances . . . that is determinative here." Williams, supra, 192 N.J. at 16. The judge noted that Cooper was identified on the videotape as having been in the Quick Chek shortly before the robbery, and she provided a statement to the police admitting her involvement before being asked for her consent. He also found that her statement was voluntarily given.

We find no fault with those determinations. The issue is whether those findings support the legal conclusion that these events amounted to sufficient intervening circumstances. We are compelled to conclude they did not for the following reasons.

Love Cooper was already in custody before the trunk was opened, and before Detective Davis viewed the videotape from the Quick Check or began to take a statement from her. She continuously remained in custody until that statement was taken only two hours after the initial arrest. Love Cooper knew from the moment of her arrest that police knew what was in the trunk of the Lumina. Indeed, when the consent to search was sought, immediately after the statement was given and approximately four to five hours after she was arrested at the scene, Love Cooper specifically said to the officers, "You might as well just search because [you] already searched [the trunk]." It is an inescapable conclusion that such "knowledge was a major factor in her decision to give consent to the police." Smith, supra, 155 N.J. at 101. Therefore, the taint from the original search was not purged by "sufficient intervening circumstances," but rather seamlessly followed from the improper police conduct.

For the foregoing reasons, we are compelled to reverse that portion of the order that denied defendant's motion to suppress the evidence seized from the trunk of the Lumina based upon Love Cooper's consent.

We reach a different result with respect to the denial of defendant's motion to suppress his statement made to Davis nearly four hours after Love Cooper's consent was obtained. In this context, the Court recently said: now familiar doctrine calls for suppression of the fruits of an illegal arrest unless the chain of causation between the illegality and a later confession is so attenuated, or has been interrupted by some intervening circumstance, that the confession was "sufficiently an act of free will to purge the primary taint of the unlawful" conduct.

State v. Brown, 205 N.J. 133, 148-49 (2011) (quoting Wong Sun v. United States, 371 U.S. 471, 486-88, 83 S. Ct. 407, 416-17, 9 L. Ed. 2d 441, 454-55 (1963); State v. Worlock, 117 N.J. 596, 622 (1990)). The same three-part attenuation analysis applies. State v. Chippero, 164 N.J. 342, 353 (2000).

We are somewhat hampered by the fact that, although defendant clearly challenged the voluntariness of his statement to Davis before the motion judge, he never precisely claimed that the statement was also tainted by the illegal search of the Lumina's trunk or his arrest at the scene. The judge properly considered all the factors regarding the issue he then confronted and concluded, appropriately, that defendant's statement was freely given after waiving his Miranda rights. We fully concur. We are, nonetheless, confident that the record permits us to analyze and reject the claim now made on appeal, i.e., that defendant's confession was the "fruit" of improper police conduct.

There was a significant lapse of time between what happened in the Dunkin' Donuts parking lot and Davis's interrogation of defendant. The arrest occurred shortly after 2:00 a.m. and the interrogation did not commence until 10:43 a.m. In the interim, although in custody, the record fully supports the judge's conclusion that defendant was well-cared for and not subjected to any duress or coercion. See Warlock, supra, 117 N.J. at 623 ("A congenial atmosphere can neutralize the assumption that a confession given after a short period of detention is the product of an illegal arrest.") (citation omitted). Likewise, the judge's determination about the absence of flagrant police conduct equally applies to our analysis of this issue.

Turning to the critical element of the analysis, we conclude that there were sufficient intervening circumstances that purged the taint of any prior illegality prior to defendant's statement. In the ensuing hours between his arrest and his interrogation, defendant was aware that the other passengers in the Lumina had inculpated him. See Chippero, supra, 164 N.J. at 356. Defendant was provided with his Miranda rights, understood those rights and voluntarily waived them before providing his statement. Id. at 355 (although not determinative, "[t]he presence or absence of Miranda warnings should be considered in determining whether a confession is obtained by exploitation of an illegal arrest"). Defendant fully understood those rights. Although defendant would have clearly remained in police custody had he not provided a statement, there was nothing about the police conduct that prohibited defendant from exercising his rights and refusing to give a statement. Yet, he exercised his free will and voluntarily decided to do so. We therefore affirm that portion of the order that denied defendant's motion to suppress the statement he made to Davis.

Lastly, pursuant to the plea bargain, defendant reserved the right to appeal the denial of these motions and have his plea vacated if he prevailed. In light of our ruling, he did prevail, but only partially. Neither side has addressed what a partial vindication of defendant's rights on appeal meant in the context of the plea agreement.

This is not a situation where defendant preserved his right to challenge the denial of his motion to suppress on appeal, but reversal implicates only some of the offenses to which he pled guilty. Cf. State v. Matthews, 398 N.J. Super. 551, 561 (App. Div. 2008) (where the defendant's success on appeal regarding denial of his motion to suppress did not undermine the factual basis provided at the time of his plea for other offenses). Fairness dictates that defendant's guilty pleas in this case be vacated. The matter is remanded to the Law Division for further proceedings consistent with this opinion.


Much of what we have already said applies to defendant's other appeal in which he argues that statements made to Linden and Rahway police officers, which provided the basis for his indictment by the Union County grand jury, should have been suppressed as the fruits of the unconstitutional search and arrest that occurred in Woodbridge.

A pre-trial hearing on that motion to suppress took place after the hearings in Middlesex County. Rahway police detective Richard Long testified that he was investigating a string of robberies that had occurred in town. His department was contacted by the Woodbridge police department on March 8, 2008 and advised that defendant was in custody for charges that "m[ight] be related" to the Rahway incidents. Long and other detectives proceeded to Woodbridge.

Long advised defendant of his Miranda rights at 4:30 p.m. Defendant executed the rights form. Long took a videotaped statement from defendant in which he inculpated himself in a series of robberies committed in Rahway.

Linden detective Alberto Goncalves also testified at the hearing. He was investigating a series of robberies that occurred in Linden during the later part of 2007 and early in 2008. Woodbridge police officers contacted the Linden police department and advised that defendant was in custody for a robbery, and he "might be related to unsolved robberies" in Linden.

Goncalves and another detective proceeded to Woodbridge. Although he testified that he advised defendant of his Miranda rights at 3:00 a.m. on March 8, 2008, the actual rights form executed by defendant indicated Goncalves read defendant his rights at 3:00 p.m. The videotape of the interview also reflected the time as being 3:00 p.m. Defendant waived his rights and provided a statement to Goncalves inculpating himself in robberies committed in Linden.

Detective Davis also testified in the Union County proceeding. He described his involvement in the investigation in Woodbridge and the statements he secured from Love Cooper, Tabitha Lee and Danny Cooper. Davis provided defendant with his Miranda rights at 10:44 a.m., defendant waived his rights and voluntarily gave a statement to Davis. Davis then "called other jurisdictions . . . because . . . [he] . . . felt that these particular people were responsible for a bunch of robberies from other jurisdictions along with ours."

In an oral opinion placed on the record several days later, the motion judge rejected defendant's argument that he should reconsider the rulings made by the Middlesex County judge, citing the "law of the case" doctrine. Without extensive analysis, the judge determined that having "viewed [defendant's] statements, . . . none of them were given under any pressure or duress." He denied defendant's motion to suppress the statements given to the Linden and Rahway detectives.

Before us, defendant contends his statements should have been suppressed because "the taint of the illegal search and seizure was not dissipated." We disagree.

We need not repeat the above analysis regarding the circumstances that led to defendant's statement made to Davis in Woodbridge. Goncalves did not speak to defendant until 3:00 p.m., and defendant did not speak to Long until 4:30 p.m. Those statements were not provided in temporal proximity to the improper police conduct that occurred nearly thirteen hours earlier. In the interim, sufficient intervening circumstances arose: defendant's cohorts all provided statements to the police; defendant had waived his Miranda rights before providing his own statement to Davis; and he was fully Mirandized by Goncalves and Long again. The proofs support the conclusion that his decision to provide the statements to Goncalves and Long was voluntary and the product of defendant's own free will.

In short, defendant's motion to suppress the statements he made to Goncalves and Long as fruits of the tainted search and his unlawful arrest was properly denied.


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