United States District Court, W.D. New York
LAWRENCE J. VILARDO, UNITED STATES DISTRICT JUDGE
Ryan Peltan was charged in a two-count indictment with
robbery of a pharmacy with a dangerous weapon, 18 U.S.C.
§§ 2118(a)(1), 2118(c)(1), and 2; and with
brandishing a firearm in furtherance of a crime of violence,
18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Docket Item 1.
On July 12, 2016, Peltan moved to suppress evidence. Docket
Items 19 and 21. After both sides briefed the issue,
Magistrate Judge Jeremiah J. McCarthy held an evidentiary
hearing. Both sides then submitted memoranda of
law, see Docket Items 35 and 36, and on February 23,
2017, Judge McCarthy issued a Report and Recommendation,
recommending that Peltan's motion to suppress should be
denied. Docket Item 37.
this Court granted the defendant's motion to extend his
time to file objections, Docket Item 39, Peltan objected to
Judge McCarthy's report and recommendation on March 20,
2017. Docket Item 40. The government responded on April 7,
2017, Docket Item 42, and after granting the defendant
another continuance, this Court heard oral argument on June
1, 2017. See Docket Item 45. For the following reasons, this
Court adopts Judge McCarthy's Report and Recommendation
and denies Peltan's motion to suppress.
Ohio police officers Amanda Baker and Tim Shmigal were
patrolling their assigned district in October 26, 2015, when
they spotted the defendant and a companion outside a parked
car in a parking lot known for drug activity. Docket Item 31
(hearing transcript) at 7-8. The defendant had apparently
taken luggage, clothing, and other personal effects out of
the car and was sorting through them. According to one of the
officers, what the defendant was doing “seemed odd and
out of place." Id. at 9. The officers asked the
defendant what he was doing, whether he had any prior drug
arrests, and whether he had track marks on his arms.
Id. at 9-12. The defendant gave appropriate and
believable answers and showed the officers that his arms were
free from track marks. Id. at 11-13.
with what they learned, the officers drove away. Id.
at 13. When they ran a search of the vehicle's license
plate, however, the officers found that its owner, Ryan
Peltan, had two outstanding warrants lodged against him as
well as a suspended driver's license. Id. at
13-16. They returned to the vehicle and asked the defendant
if he was, in fact, Ryan Peltan. When he answered in the
affirmative, they arrested him for driving with a suspended
license and because of the two outstanding warrants.
Id. at 17.
they had arrested the owner of the vehicle, the officers
planned to inventory and tow the vehicle pursuant to Akron
police department policy. Id. at 19. That policy
permitted the officers to release the vehicle only to its
registered owner, and so the officers could not release the
car to Derrick Snell, the defendant's companion who was
also at the scene. Id. at 21.
doors were open, and its contents therefore were visible to
the police officers. Id. at 18, 76-77. Officer Baker
observed a box of ammunition on the driver's seat,
id. at 18, as well as two marijuana pipes and a
prescription pill bottle that was later determined to have
pills in it. Id. at 23. Officer Shmigal also saw the
pipes and the prescription pill bottle. Id. at
76-77. Both officers testified that the pipes were, in fact,
drug paraphernalia, illegal to possess under Ohio law.
See Id. at 23-26, 76-77, 88-89. The officers
therefore arrested Snell as well. Id. at 26.
the inventory search that followed, the officers found
pistols, ammunition, and a bag with about 10, 000 pills
inside it. Id. at 28-29.
court reviews de novo a magistrate judge's
Report and Recommendation to suppress evidence in a criminal
case. See 28 USC § 636(b)(1); Fed. Rule Crim.
P. 59(b)(3). In conducting its review, the Court “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
first challenges his initial encounter with the police
officers, arguing that their questions were akin to an
illegal stop and frisk. See Terry v. Ohio, 392 U.S.
1 (1968). But his argument is misplaced for two reasons.
contrary to the defendant's assertions, the officers did
not stop him or restrain his liberty in any way. On the
contrary, both officers remained in their police car and
simply asked Peltan a few questions, which he answered
voluntarily. And because the interaction was consensual, it
was not a seizure for purposes of the Fourth Amendment.
seizure does not occur simply because a police officer
approaches an individual and asks a few questions.”
Florida v. Bostick, 501 U.S. 429, 434 (1991). Until
an officer uses physical force or a show of authority to
restrain liberty, “an encounter between a police
officer and a citizen is consensual, and implicates no ...