U N I T E D S T A T E S D I S T R I C T C O U R T 

D I S T R I C T O F N E W J E R S E Y

M ARTIN LUTHER KING JR. FEDERAL BLDG. & U.S. COURTHOUSE

50 WALNUT STREET, P.O. BOX 419

NEWARK, NJ 07101-0419

(973) 645-6340

WILLIAM J. MARTINI 

 JUDGE

LETTER OPINION

June 23, 2011

Randall H. Cook

Office of the U.S. Attorney

District of New Jersey

970 Broad Street

Newark, NJ 07102

(Attorney for Plaintiff)

Luis O. Diaz

710 West 190 St., Suite D

th

New York, NY 10040

Pasquale F. Giannetta

36 Mountain View Boulevard

Wayne, NJ 07470

(Attorneys for Defendant)

RE: United States v. Jose Almonte, Crim. No. 11-158 (WJM)

Dear Counsel:

This matter comes before the Court on Defendant’s motion to suppress the

evidence against him pursuant to Federal Rule of Criminal Procedure 12(c). For the

reasons that follow, Defendant’s motion to suppress is DENIED.

I. BACKGROUND

The facts surrounding the October 16, 2009 search at issue are described in

Defendant Jose Almonte’s motion to suppress evidence (Docket Entry No. 60) and in the

Case 2:11-cr-00158-WJM Document 63 Filed 06/23/11 Page 1 of 5 PageID: 70
Government’s opposition (Docket Entry No. 61), and are summarized here. Starting

around September 2009, the DEA began surveillance on co-Defendant Ramon Delorbe

and on Almonte’s apartment at 108 35th Street, Union City, New Jersey (“Union City

Apartment”). Delorbe had identified the apartment as a “stash house” for storing cocaine

and processing heroin to an individual named Jose Garcia, and Delorbe’s car was

observed in the vicinity of the Union City Apartment multiple times by DEA agents. On

October 16, 2009, agents stopped Delorbe in Weehawken, New Jersey on a traffic stop.

When questioned about heroin trafficking, Delorbe admitted that there were narcotics at

the Union City Apartment, and he then provided law enforcement with keys and gave

written and oral consent for them to search it. Almonte, who doesn’t speak English, was

in the Union City Apartment at the time, and refused to open the interior door (which was

bolted from the inside) to the agents, and also drew the curtains. The agents broke a

window to gain visibility into the apartment, at which point Almonte unlocked the interior

door. After the agents had entered, another individual, Joselin Reynoso Inoa, stated that

he resided in the Union City Apartment and provided further written and oral consent to a

search. The agents then discovered and seized the physical evidence that Almonte now

seeks to suppress, and Almonte, Inoa and Delorbe were arrested. In post-arrest

1

statements, Inoa stated that the had resided in the Union City Apartment for two months,

and that Delorbe had keys and was there almost continuously in the days leading up to

October 16, 2009. Delorbe further corroborated Inoa’s statement, stating that (1) rent and

utilities for the Union City Apartment were paid out of proceeds from the heroin business

operating out of the apartment, (2) he was in the Union City Apartment almost

continuously for the days leading up to the October 16 arrest, and (3) that he and Almonte

allowed Inoa live there.

The indictment, filed March 14, 2011, alleges that from around August 2009 to

October 2009, Almonte conspired with Delorbe and others to manufacture and distribute

heroin. Specifically, Almonte is charged with two counts: (1) conspiring to manufacture

and distribute 100 grams or more of heroin; and (2) possessing with intent to distribute

100 grams or more of heroin. On April 29, 2011, Almonte filed the instant motion to

suppress the evidence found at the Union City Apartment on October 16, 2009, claiming

that the agents did not properly obtain consent before entering the premises without a

search warrant. The Government opposes the motion, and also moves to (1) admit

summaries of voluminous data pursuant to Rule 1006, and (2) require reciprocal

discovery from Almonte. However, at this time the Court will reserve on the

Government’s additional motions, and will only address Defendant’s motion to suppress

evidence.

 Co-Defendants Joselin Reynoso Inoa and Ramon Delorbe have each pled guilty to 1

charges arising from their involvement in this case.

2

Case 2:11-cr-00158-WJM Document 63 Filed 06/23/11 Page 2 of 5 PageID: 71
II. DISCUSSION

Almonte has filed a motion to suppress, pursuant to Rule 12(c), all evidence found

at the Union City Apartment. Almonte argues that the search of his apartment at 108 35th

Street, Union City, New Jersey, was a warrantless search without probable cause in

violation of the Fourth Amendment. The Government argues that the search did not

violate the Fourth Amendment, as the agents reasonably relied on Delorbe’s consent to

initiate a search, then reasonably continued the search after Almonte’s refusal to open the

door due to exigent circumstances, and reasonably relied on Inoa’s consent to complete

the search after entering the apartment.

A. Whether Consent was “Voluntarily and Freely Given”

The Fourth Amendment of the Constitution protects “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures,” and provides that “no Warrants shall issue, but upon probable cause...” U.S.

Const. Amend. IV. As such, the Fourth Amendment only prohibits searches and seizures

that are unreasonable. Illinois v. Rodriguez, 497 U.S. 177, 183 (1990). The Supreme

Court has “long approved consensual searches because it is no doubt reasonable for the

police to conduct a search once they have been permitted to do so.” Florida v. Jimeno,

500 U.S. 248, 250 (1991). To justify a search as reasonable based on consent, the

Government “has the burden of proving that the consent was, in fact, freely and

voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1960). Almonte

argues that Delorbe’s consent was not freely and voluntarily given because he did not

have authority to give such consent. However, voluntariness of the consent does not

relate to whether not the person giving consent had authority, but simply whether the

consent was “freely and voluntarily given.” The parties who gave consent to search the

Union City Apartment, Delorbe and Iona, are not challenging the voluntariness of such

consent. Additionally, the agents obtained written consent from both Delorbe and Inoa,

and the written consent form advised the co-Defendants of their Constitutional rights.

Therefore, the voluntariness of the consent is not at issue.

B. Authority to Give Consent

Essentially, Almonte is claiming that Delorbe did not have the authority to give the

agents consent to search the Union City Apartment, as he was only a temporary guest of

the apartment and was not physically in the apartment when the consent was given, and

that as such the consent is invalid as to Almonte. For the consent to be valid as to

Almonte, Delorbe (and Inoa) must have had some authority to give the agents consent to

search the Union City Apartment.

3

Case 2:11-cr-00158-WJM Document 63 Filed 06/23/11 Page 3 of 5 PageID: 72
Third-party consent is allowable whenever the third-party has either actual

authority or apparent authority over the premises. Apparent authority exists wherever the

officer reasonably believes the third-party possesses common authority over the premises.

Rodriguez, 497 U.S. at 185-186. In order for there to be common authority over the

premises, the third-party must have “mutual use of the property” and “joint access or

control for most purposes.” Id. at 181. Therefore, so long as the agent reasonably

believed that Delorbe and Iona shared mutual use of the property with Almonte, the

search based on their consent was reasonable under the Fourth Amendment.

Here, the undisputed facts provide ample evidence that the agents reasonably

believed that Delorbe had common authority over the Union City Apartment. Once

stopped and questioned by police, Delorbe gave verbal and written consent to search the

Union City Apartment and handed over keys to the front door. The fact that Delorbe had

keys, and that earlier surveillance by DEA agents showed Delorbe had been in the Union

City Apartment for extended periods of time over the month leading up to his arrest,

supported the agents’ understanding that Delorbe was at least a temporary guest with

common authority over the premises. Defendant Almonte argues that Delorbe did not

have authority to give consent to the search of Almonte’s Union City Apartment, since

Delorbe “was only a temporary guest” and “was not physically in the apartment when the

alleged consent was given.” (Almonte’s Moving Br. at 5.) However, neither of these

facts alone negate Delorbe’s ability to authorize entry to the Union City Apartment. See

Rodriguez, 497 U.S. at 179-180 (police met woman at one location, who then consented

to a search at a different apartment on a different street to which she had a key); United

States v. Clark, 96 Fed. Appx. 816, 820 (3d Cir. 2004) (third-party found to have apparent

authority to consent to a search of a hotel room where she had a key and seemed to be a

“guest in the hotel room” with two others). The issue is neither where Delorbe was when

he gave consent, nor whether he was a temporary or permanent guest or resident at the

Union City Apartment, but instead just whether he had common authority over the

premises. The Court finds Delorbe had common authority over the Union City Apartment

and was able to provide valid consent to search the premises.

Finally, “a warrantless search of a shared dwelling for evidence over the express

refusal of consent by a physically present resident cannot be justified as reasonable as to

him on the basis of consent given to the police by another resident.” Georgia v. Randolph,

547 U.S. 103, 120 (2006). This was not the case at the time Delorbe gave consent, and

therefore the initial entry into the Union City Apartment was reasonable based on

Delorbe’s consent. Once Almonte refused to open the door, however, it could be argued

under Randolph that the agents needed additional justifications for continuing the search

at that point. Up until Almonte’s refusal, however, Delorbe’s consent was certainly valid.

4

Case 2:11-cr-00158-WJM Document 63 Filed 06/23/11 Page 4 of 5 PageID: 73
C. Exigent Circumstances and Iona’s Consent

Almonte has only challenged the initial reasonableness of the agents’ search; i.e.,

the validity of Delorbe’s consent and the agents’ initial attempt to enter. Since the agents

found the door locked from the inside, the Government also posits that should additional

justification be necessary, (1) when Almonte drew the curtains, the agents reasonably

believed that exigent circumstances (the likely destruction of evidence) justified their

warrantless entry; and (2) Iona’s further consent justified continuing the search of the

premises after the exigency was addressed.

Defendant Almonte has not addressed these aspects of the search, but the Court

will address them briefly. First, law enforcement officers may enter a premises without a

warrant to prevent the loss, removal, or destruction of evidence. See United States v.

Williams, 521 F.3d 902 (8th Cir. 2008). Here, the agents had reason to believe the Jersey

City Apartment was being used as a headquarters for a heroin manufacture and

distribution business. Therefore, when Almonte deliberately obscured their view by

drawing the curtains, the agents reasonably believed he may have been trying to destroy

the evidence. While it could be argued that Almonte’s refusal to open the door revoked

Delorbe’s prior consent under Randolph, his actions then created exigent circumstances

that warranted the agents’ entry into the apartment. Once inside, Inoa’s written and oral

consent to a continued search allowed the agents to proceed after the exigent

circumstances (i.e., the potential destruction of evidence) were addressed. Inoa had

authority to consent just as Delorbe did, since he said he resided there and appeared to the

agents to exercise joint control of the premises. At this point Almonte, who was still

physically present, did not object to Inoa’s consent. Under these circumstances the agents

reasonably believed that they were authorized to complete their search of the premises.

III. CONCLUSION

For the foregoing reasons, the Court finds that no evidentiary hearing is necessary,

and Defendant’s motion to suppress the evidence against him is DENIED. An order

accompanying this Letter Opinion has already been issued.

s/ William J. Martini

WILLIAM J. MARTINI, U.S.D.J.

5

Case 2:11-cr-00158-WJM Document 63 Filed 06/23/11 Page 5 of 5 PageID: 74