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United States v. Marks

January 4, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CHAD MARKS, DEFENDANT.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

This Court referred all pretrial motions in this criminal case to United States Magistrate Judge Marian W. Payson, pursuant to 28 U.S.C. § 636. Defendant, Chad Marks ("Marks"), represented by counsel, filed several motions. These motions include a motion to suppress statements, tangible evidence and a photographic identification. In addition, Marks moves to suppress communications intercepted pursuant to a court ordered wiretap. Magistrate Judge Payson conducted several days of hearings on the motions and, after receiving submissions from the parties, issued a detailed, 54--page Report and Recommendation concerning all of the motions. It was Magistrate Judge Payson's recommendation that all motions be denied.

The Court granted Marks' counsel several extensions within which to file objections to Magistrate Judge Payson's Report and Recommendation. Those objections were filed October 7, 2005 by counsel. Marks', although not authorized to do so, filed two separate documents (Dkt. #208, #209)objecting to various portions of Magistrate Judge Payson's Report and Recommendation.

The Court has reviewed all of the filings objecting to Magistrate Judge Payson's Report and Recommendation, as well as the transcript of the suppression hearings and the papers filed by the parties before Magistrate Judge Payson. I find the objections to be without merit, and I, therefore, adopt Magistrate Judge Payson's Report and Recommendation (Dkt. #173) and deny the defendant's several motions to suppress.

I. Suppression of Statements

Marks seeks to suppress statements he made to police officers on three different occasions, October 15, 2002, November 17, 2002 and December 2, 2002. I agree with Magistrate Judge Payson that there is no basis to suppress any of the statements.

In Magistrate Judge Payson's Report and Recommendation, she set out a detailed summary of the circumstances surrounding each incident and the testimony of the six police officers who testified on the motion for the Government. No witnesses were called by the defendant.

A: October 15, 2002 Statement

Magistrate Judge Payson set out summary of the circumstances surrounding this incident, as well as the testimony of Rochester Police Department Officer Lisa Hayes. Magistrate Judge Payson found that based on all the evidence, Officer Hayes was justified in conducting a traffic stop of the vehicle driven by Marks. The circumstances leading up to the stop justified a traffic stop, but also the fact that Officer Hayes knew Marks and knew that he did not have a driver's license justified the traffic stop. I agree with the factual determination made by Magistrate Judge Payson, and agree with the legal authority relied on in the Report and Recommendation.

Marks apparently made statements while in his vehicle and later after he had been removed to Hayes' patrol car. The Government seeks to admit only the former statements. The Government concedes that Miranda warnings had not been given to Marks prior to these statements, but I agree with the Government's contention and Magistrate Judge Payson's finding that the failure to give the Miranda warnings does not preclude the admissibility of Marks' statements since he was not "in custody." Based on the facts and circumstances here, I agree and find that Marks was not in custody when he was in his vehicle and, therefore, the statements were not the product of custodial interrogation.

B: November 17, 2002

In this case, Marks challenges certain statements he made to Officer Scott Wehr on November 17, 2002 on Lyell Avenue, Rochester, New York. Wehr testified that he responded to an address on Lyell Avenue concerning the report of a burglary. Once there, he observed Marks and two other individuals who were using a ladder to enter a second-story apartment. The trio advised Wehr that they were attempting to retrieve belongings owned by one of the individuals. Although Officer Wehr did question Marks and the others as to the nature of their activities, none of them were placed under arrest, at the time, and none of them were in custody during the encounter. Therefore, there is no basis to suppress any of the conversations between Marks and Officer Wehr, and I agree with Magistrate Judge Payson's decision that the motion to suppress should be denied.

C. December 2, 2002

The facts support Magistrate Judge Payson's conclusion that there was a legitimate traffic stop of Marks' vehicle on December 2, 2002. During that stop, Marks advised Officer John DiMascio that his license had been suspended. Based on that information, Marks was removed from his vehicle and placed into the patrol car. While conducting a check concerning Marks' record, Marks asked why the police were always bothering him. The officer replied ...


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