United States District Court, W.D. New York
Order Filed: October 23, 2014
For Mark Seldinas, Defendant: Herbert L. Greenman, LEAD ATTORNEY, Lipsitz Green Scime Cambria LLP, Buffalo, NY.
For USA, Plaintiff: Joel L. Violanti, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.
HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE.
This case was referred to Magistrate Judge Jeremiah J. McCarthy, pursuant to 28 U.S.C. § 636(b)(1)(B) for pretrial proceedings. Defendant Mark Seldinas filed a motion to suppress (Dkt. No. 22) physical evidence and certain statements he had made during his arrest on November 5, 2011. A suppression hearing was held on October 7, 2013, the parties submitted post-hearing briefs, and oral argument was held on August 21, 2014. Magistrate Judge McCarthy filed a Report and Recommendation (Dkt. No. 71) on October 23, 2014 recommending that defendant Mark Seldinas' motion to suppress (Dkt. No. 22) be granted.
Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the Report and Recommendation. It is hereby
ORDERED, for the reasons set forth in Magistrate Judge McCarthy's Report and Recommendation, defendant Seldinas' motion to suppress his November 5, 2011 statements is granted. The Report and Recommendation (Dkt. No. 71) is therefore adopted in its entirety.
The parties shall appear for status conference/meeting to set trial date on November 26, 2014 at 10:00 AM before Hon. Richard J. Arcara.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
JEREMIAH J. MCCARTHY, United States Magistrate Judge.
Defendant Mark Seldinas is charged in an Indictment  with knowingly, intentionally, and unlawfully possessing with intent to distribute a Schedule II controlled substance (Oxycodone); and a Schedule IV controlled substance (Alprazolam), in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(C), and 842(b)(2). Before me is Seldinas' motion to suppress physical evidence and statements from his November 5, 2011 arrest. Greenman Declaration , § § XI and XII. A suppression hearing was held on October 7, 2013 at which Drug Enforcement Agency (" DEA" ) Special Agent (" SA" ) Shane Nastoff and DEA Task Force Officer John Trabert testified for the government . The parties submitted post-hearing briefs [63, 64], and oral argument was held on August 21, 2014 . For the following reasons, I recommend that the motion be granted.
SA Nastoff testified that on November 4, 2011 he was involved in a drug trafficking investigation and was using a confidential source (" CS" ), who was in contact with an individual in the Bronx to arrange for the purchase of 200 Oxycodone and 120 Xanax pills. October 7, 2013 hearing transcript , pp. 7-8. That individual arranged for Seldinas to transport the pills to Buffalo and he was scheduled to meet the CS on November 5, 2011 (id., p. 8). On November 5, 2011, the CS informed SA Nastoff that he had been in contact with Seldinas by text messaging (gov. ex. 2 [50-1]) and that they had arranged to meet later that evening at the Boulevard Mall, in Amherst, New York to conduct the drug transaction. October 7, 2013 hearing transcript , pp. 9-10. In one of the text messages, the CS stated, " 5200 right? 200 jetseys and 120 shirts?" (id., p. 11; gov. ex. 2 [50-1], p. 1). SA Nastoff testified that the CS explained to the agents that " 5200" referred to the $5,200 he was going to pay Seldinas and further explained that the " 200 jetseys" referred to 200 Oxycodone pills, while the " 120 shirts" referred to 120 Xanax pills. October 7, 2013 hearing transcript , pp. 11-12.
Agents searched the CS and his vehicle to verify that he was not in possession of any drugs or weapons (id., p. 12). The agents also equipped the CS with a Kel transmitter so that he could transmit live audio to the agents (id., pp. 12-13). The agents then followed the CS in a separate vehicle to the parking lot of Michael's department store next to the Boulevard Mall, where the CS and Seldinas had agreed to meet (id. pp. 13-14). While the CS and agents were traveling to this location, Seldinas contacted the CS to confirm that they were meeting at Michael's department store, which SA Nastoff overheard via the Kel monitor (id. p. 14).
SA Nastoff testified that the officers wanted " some type of evidence" that the drugs were actually present on Seldinas before they arrested him (id. p. 31). According to SA Nastoff, this did not mean that the agents needed to observe drugs
before they would arrest Seldinas, but rather " any type of statements that would have indicated that he did have the drugs" would have sufficed (id.).
Upon reaching Michael's department store at approximately 7:17 p.m., the CS parked in the middle of the parking lot, exited his vehicle, and stood near the hood of the car (id., p. 15). The parking lot " was well-lit" and SA Nastoff had a clear view of the CS (id.). Other law enforcement officers were surveilling the parking lot from different vantage points and they were communicating by radio (id., pp. 15-16).
While observing the CS, SA Nastoff overheard via the Kel monitor the CS receiving a telephone call (id., p. 16). SA Nastoff testified that it sounded as if the CS was directing an individual to his specific location and Seldinas was observed in the parking lot talking on his cell phone walking towards the CS (id.). The two met in front of the CS's vehicle and greeted each other (id.). SA Nastoff testified that he overheard Seldinas, via the Kel monitor, state " that he had the 200 Oxycodone pills and two prescription bottles" (id., pp. 16-17). After hearing that Seldinas was in possession of the pills, SA Nastoff or SA Wisniewski " gave out [a] radio transmission to move in and make an arrest" (id. pp. 32-33). He did not remember exactly what was said to Seldinas as the officers approached, though he did recall that they were all stating " police" to identify themselves (id., p. 33). He testified that he approached Seldinas with his weapon drawn, but could not recall if either Officer Trabert or SA Wisniewski had their weapons unholstered (id.). SA Nastoff was wearing a DEA bullet-proof vest, which had a badge and the word " police" displayed (id., p. 35).
Officer Trabert was the first officer to reach Seldinas, though the others were only seconds behind him (id., pp. 17-18). When SA Nastoff reached Seldinas, he was already in the process of being handcuffed (id., pp. 18, 36). Officer Trabert advised SA Nastoff that Seldinas had " dropped a plastic baggie containing pills on the ground at his feet" (id., p. 18). SA Nastoff testified that he observed a clear " ziplock type bag" containing " multiple pills that were blue in color" (gov. ex. 3 [50-1], p. 4 (left side of the photograph)) at Seldinas' feet, but did not observe the bag fall to the ground. October 7, 2013 hearing transcript , pp. 18-19.
After Officer Trabert handcuffed Seldinas, SA Nastoff witnessed him advise Seldinas of his Miranda rights and Seldinas agreed to waive his rights and speak with the officers (id., pp. 19-20). Seldinas stated that he had an additional baggie containing pills in the center console of his vehicle (id., p. 37), and SA Nastoff proceeded to Seldinas' vehicle so that he ...