The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Defendant was charged with one count of possession of drugs with intent to distribute, in violation of 21 U.S.C. § 841(a), and one count of unlawful possession of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g). Defendant moved to suppress the evidence supporting these charges, contending that the law enforcement officers lacked probable cause to arrest him, and that the evidence, which was obtained during subsequent warrantless searches of his vehicle and home, must be suppressed as the fruit of the poisonous tree. Defendant further contended that his wife's consent to search the apartment was invalid. The court denied his motion, holding that the law enforcement officers had probable cause to arrest him and that the wife's consent to search was given knowingly and voluntarily. See generally United States v. Valentine, 04-CR-994 (DLI), 2006 WL 195005 (E.D.N.Y. Jan. 24, 2006). Defendant then pled guilty to the firearms charge, reserving the right to appeal this court's denial of his suppression motion. On appeal, the Second Circuit vacated this court's order denying suppression and imposing sentence on defendant's guilty plea. The Second Circuit also remanded the matter for this court's determination as to whether the wife's consent to search the apartment had become so attenuated that the taint from defendant's illegal arrest had dissipated. See generally United States v. Valentine, 539 F.3d 88 (2d Cir. 2008).
This Order addresses two issues on remand: (i) whether there is evidence establishing that the events leading up to the consent to search defendant's apartment dissipated the taint of defendant's illegal arrest, and (ii) whether additional fact finding is necessary to resolve this issue. As set forth more fully below, the court answers both questions in the negative and grants defendant's motion to suppress the evidence recovered from his apartment.
On October 8, 2004, a shipment of fifty kilograms of cocaine, concealed in a sofa and loveseat, arrived at the Federal Express facility at JFK Airport. The shipment was addressed to Luis Lebron, at the basement apartment in 377 Vernon Avenue, Brooklyn, New York. United States Drug Enforcement Administration ("DEA") agents intercepted the delivery and attempted a controlled delivery of the sofa and loveseat on October 11, 2004. (See Transcript, Supp. Hrg., Sept. 13 and 27, 2005 ("H.") at 14-15.) Mr. Lebron was not home and, although the undercover DEA agents discussed the delivery with individuals on the street at the time of the delivery attempt, including defendant, no one signed for the package. The DEA continued to observe activity on the street that day, and ultimately arrested defendant. A search of defendant's car revealed several glassines of heroin. Special Agent Robert J. Yoos, along with other officers, proceeded to the apartment shared by defendant and his common-law wife, Annette Morales. Morales consented, orally and in writing, to a search of their apartment. The agents found several firearms and heroin. Shortly thereafter, a grand jury issued an indictment, charging defendant with narcotics and firearms offenses.
Defendant moved to suppress the evidence that the grand jury relied upon to indict him, contending that: (1) the law enforcement officers lacked probable cause to arrest him; (2) the warrantless searches of his car and his apartment were tainted by his unlawful arrest; and (3) Morales had not knowingly or voluntarily consented to the search of their apartment. The court conducted a suppression hearing, taking testimony from Morales and several law enforcement officers and viewing a videotape of the events as recorded by the agents from the street on October 11, 2004. The court denied defendant's motion, finding that the law enforcement officers had probable cause to arrest him. Therefore, the search of his car was lawful as incident to his arrest. The court also found that Morales's consent was given knowingly and voluntarily. Because the court found that the arrest was lawful, it did not consider attenuation. See generally Valentine, 2006 WL 195005. On February 28, 2006, defendant pled guilty to the firearms charge pursuant to a plea agreement wherein he reserved his right to appeal the denial of his suppression motion. On December 7, 2006, defendant was sentenced, inter alia, to ten years of imprisonment and three years of supervised release with special conditions.
On appeal, the Second Circuit vacated this court's order denying suppression and imposing sentence, and remanded, holding that the officers lacked probable cause to arrest defendant. See Valentine, 539 F.3d at 95 (holding that "the cumulative record is insufficient as a matter of law to'warrant a man of reasonable caution in the belief' that Valentine committed a crime"). The Second Circuit further held that the subsequent search of Valentine's car "stemmed from [the] illegal arrest" and, thus, "the evidence seized from that search must necessarily be suppressed as the fruit of the poisonous tree." Id. at 96. The Second Circuit highlighted that defendant's firearms conviction arose out of evidence located in his apartment during a post-arrest search, not evidence located in his car. Id. The firearms conviction could only be supported if "Morales's consent to search the apartment'had become so attenuated as to dissipate the taint' from the illegal acts leading up to that search." Id (citations omitted). Otherwise, held the Circuit, "the firearms found inside the apartment must also be suppressed as the fruit of the poisonous tree." Id. The Second Circuit remanded for resolution of this issue and additional fact finding, if necessary. See id. n.10. On remand, the parties briefed the issue of whether additional fact finding was necessary and provided the court with letter briefs submitted on appeal on the issue of attenuation. Oral argument was held on December 3, 2008. (See Transcript, Oral Arg., Dec. 3, 2008 ("Tr.").)
It is well-settled that evidence obtained pursuant to an unlawful seizure or search must be suppressed as the fruit of the poisonous tree. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). This doctrine precludes the admission of primary, secondary or derivative evidence. See id. An unlawful arrest will invalidate a defendant's subsequent consent to search, unless the government can demonstrate that events occurring after the unlawful arrest sufficiently dissipated its taint. See United States v. Ceballos, 812 F.2d 42, 50 (2d Cir. 1987) (holding that defendant's consent to search following an unlawful arrest did not become so attenuated as to dissipate the taint associated with the arrest); see also United States v. Vasquez, 638 F.2d 507, 528 (2d Cir. 1980) ("[T]he government must show that the subsequent consent was sufficiently an act of free will to purge the primary taint of the unlawful invasion.") (internal quotation marks omitted). The government "bears the burden of proving a break in the causal chain." Ceballos, 812 F.2d at 50. Absent a showing of attenuation, courts must exclude the tainted evidence.
The Supreme Court set forth four factors relevant to an attenuation analysis in Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (reversing and holding that the defendant's post-arrest confession was not sufficiently attenuated from the unlawful arrest). To determine whether sufficient attenuation exists between an unlawful arrest and the subsequent discovery of evidence, such that the evidence obtained may be admitted at trial, courts must consider: (1) whether a Miranda warning was given; (2) the temporal proximity of the illegal stop and the alleged consent; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the illegal stop. See Brown, 422 U.S. at 603-04; United States v. Oguns, 921 F.2d 442, 447 (2d Cir. 1990). Courts have applied these same four factors to various scenarios, including when a defendant consents to a search of his or her home after what is later determined by a court to be an unlawful arrest. See Ceballos, 812 F.2d at 49-50; accord United States v. Delgado, 797 F. Supp. 213, 220-21 (W.D.N.Y. 1991) (holding that "defendant's consent to the search of the package was tainted by the unlawful arrest"). "Generally, the primary taint remains unpurged in instances where the consents to search... were too closely connected in context and time to the illegal arrest to break the chain of illegality." Delgado, 797 F. Supp. at 220 (citing Ceballos, 812 F.2d at 50).
A. The Government's Motion to Reopen the Suppression Hearing
On remand, the government seeks to reopen the suppression hearing to present additional evidence bearing on the lawfulness of the consent search conducted at defendant's apartment. Specifically, the government seeks to introduce evidence of a DEA policy governing the protocols agents must follow when executing controlled deliveries. According to the government, under this policy, when "surveillance becomes known to persons connected to a suspected drug location" agents should: (i) obtain consent to search the premises; (ii) seek search warrants for those apartments for which consent was not obtained; and (iii) continue to monitor those premises until search warrants are obtained. (Gov't Mot. to Reopen Supp. Hrg. at 4.) The government contends that this policy is relevant to the fourth factor-whether their search of the apartment was a flagrant violation ...