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United States v. Seldinas

United States District Court, W.D. New York

April 22, 2015



RICHARD J. ARCARA, District Judge.

Before the Court are the Government's objections to Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation finding that defendant Mark Seldinas's motion to suppress physical evidence and statements from his November 5, 2011 arrest should be granted. The Court declines to adopt the Magistrate Judge's finding that there was no probable cause to arrest defendant. However, the Court adopts the Magistrate Judge's finding that the Government failed to meet its burden of proof with respect to whether defendant was adequately given his Miranda rights. As explained in detail below, defendant's motion to suppress physical evidence and statements is granted in part and denied in part.


Defendant is charged 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 Sections 841(a)(1), 841(b)(1)(c) and 842(b)(2) of Title 21 of the United States Code. The charges arise from an incident on November 5, 2011, where defendant allegedly met a confidential source in the parking lot of the Boulevard Mall in Cheektowaga, New York for purposes of conducting a drug sale. Defendant was arrested at that time and found to be in possession of both Oxycodone and Xanax. Additional pills were recovered from defendant's vehicle. The case was referred to Magistrate Judge Jeremiah J. McCarthy pursuant to 28 U.S.C. ยง636(b)(1) for supervision of all pre-trial proceedings. Defendant was arraigned on April 17, 2012, at which time he pled not guilty.

On July 17, 2012, defendant moved to suppress physical evidence and statements from the date of his arrest. Defendant argued that his arrest was undertaken without probable cause and that the statements he made to officers during and after the arrest were involuntary. A suppression hearing was held before Magistrate Judge McCarthy on October 7, 2013. Drug Enforcement Agency ("DEA") Special Agent ("SA") Shane Nastoff and DEA Task Force Officer John Trabert testified for the Government. Defendant did not call any witnesses. The parties submitted post-hearing briefs and oral argument was held on August 21, 2014. On October 23, 2014, Magistrate Judge McCarthy issued a Report and Recommendation recommending that defendant's motion to suppress be granted as to the physical evidence and statements.

On December 12, 2014, the Government filed objections to the Report and Recommendation.[1] Defendant filed a response on January 5, 2015, and oral argument was held on January 15, 2015. Following an additional submission by the Government on January 20, 2015 and a continuation of oral argument on March 18, 2015, the Court considered the matter submitted.


The Second Circuit has instructed that where a Magistrate Judge conducts an evidentiary hearing and makes credibility findings on disputed issues of fact, the district court will ordinarily accept those credibility findings. See Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) ("[A] district judge should normally not reject a proposed finding of a magistrate judge that rests on a credibility finding without having the witness testify before the judge.") (quoting Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999)). With respect to the testimony taken at the evidentiary hearing and any disputed issues of fact, this Court adopts the credibility findings of Magistrate Judge McCarthy and finds that another hearing is not necessary. Below is a summary of relevant testimony and factual findings from the hearing.

SA Nastoff testified that prior to defendant's arrest, he was involved in a drug investigation using a confidential source ("CS"). The CS was in contact with an individual in Bronx, New York who was arranging to supply the CS with prescription pills. Specifically, he was to provide 200 Oxycodone pills and 120 Xanax pills to the CS. This individual was not able to travel, so he arranged to have defendant transport the pills to Buffalo.

On November 5, 2011, the CS informed SA Nastoff that he had been in contact with defendant through text messaging, and that defendant and the CS agreed to meet that evening, at a parking lot by the Boulevard Mall in Cheektowaga, New York. The purpose of the meeting was to conduct the drug sale. SA Nastoff testified regarding text messages exchanged between defendant and the CS, and those text messages were entered into evidence at the hearing. In the messages, the CS writes "well I'm in grand island now/Just give me a bit to change and grab my loot." Defendant replies, "5200 right? 200 jetseys and 120 shirts." Nastoff testified that the CS explained that these messages indicate that he was going to pay defendant $5, 200 for the purchase of 200 Oxycodone pills and 120 Xanax pills. Nastoff testified that the CS was fitted with a Kel monitoring device in order to transmit live audio, and the officers followed the CS to the prescribed meeting location. During the drive to the meeting, the CS and defendant confirmed, over the telephone, that they would be meeting at the Michael's parking lot next to the Boulevard Mall.

Officer Trabert testified that he was part of a task force assigned to assist SA Nastoff in this case. Nastoff instructed Trabert to report to the Michael's parking lot because the DEA "needed extra bodies for surveillance and arrest." Officer Trabert was briefed on the background of the case and was aware that the CS was scheduled to meet defendant. Trabert testified that he positioned his vehicle in order to have a clear view of the CS. Trabert could not hear the surveillance transmission, and instead was relying on Nastoff's communications.

Officer Trabert testified that he observed defendant approach the CS. The two men spoke for about a minute before Trabert and the other agents were given the orders to "approach and arrest." Nastoff testified that it was either he or SA Wisniewski who "gave out the audio transmission of move in and make an arrest."[2] Officer Trabert testified that as he approached defendant to arrest him, he observed defendant drop a plastic "sandwich bag" on the ground. He did not observe the contents of the bag at that time. When Trabert reached defendant, he pushed defendant against the side of his vehicle and placed defendant in handcuffs. Officer Trabert testified that while he was the first to reach defendant, other officers were a few steps behind him. Several officers were yelling "DEA, police, don't move, get down." SA Nastoff testified that he approached defendant with his weapon drawn. When Nastoff reached him, defendant was already in the process of being handcuffed. Nastoff testified that he observed a clear "ziplock type bag" containing "multiple pills that were blue in color" at defendant's feet. However, he did not observe defendant drop the bag.

Officer Trabert testified that he advised defendant of his Miranda rights shortly after he was taken into custody, and that defendant agreed to waive his rights and speak with police. Trabert testified that he recited the warnings "by heart". Defendant was patted down and additional drugs were found on his person. Defendant was asked if he had any additional contraband, and defendant stated that he had an additional bag of pills in the center console of his vehicle. Both the pills and the vehicle were confiscated by the agents.[3]

Defendant was then taken to the Amherst police department and placed in an interview room where he was interviewed by SA Nastoff, Officer Trabert and SA Wisniewski about his drug trafficking activities. The officers could not recall if defendant was Mirandized again prior to questioning at the station. In addition to making statements at the time of this arrest, defendant also provided ...

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