United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. UNITED STATES DISTRICT COURT CHIEF JUDGE
December 7, 2018, Defendant moved to suppress statements he
made and physical evidence seized during an attempted traffic
stop followed by his arrest. ECF No. 42. United States
Magistrate Judge Jonathan W. Feldman issued a report and
recommendation (R&R) on October 4, 2019 recommending that
the Court deny Defendant's motion to suppress. ECF No.
71. Currently before the Court are Defendant's objections
to the R&R, which were filed on December 6, 2019. ECF No.
78. For the following reasons, the Court ADOPTS Judge
Feldman's R&R in full. Defendant's motion to
suppress is DENIED.
October 16, 2018, the Grand Jury returned a three-count
indictment charging Defendant Robert E. Tillard with various
offenses relating to possession of marijuana with intent to
distribute and unlawful possession of a firearm. ECF No. 35.
The Grand Jury returned a similar superseding indictment on
October 8, 2019. ECF No. 75. Judge Feldman held an
evidentiary hearing on Defendant's motion to suppress on
December 12, 2018, which was continued on August 5, 2019. ECF
Nos. 53, 64. At the evidentiary hearing, Rochester Police
Department Officers Peter Minurka and Sam Giancursio
testified. ECF No. 53 at 39-40; ECF No. 64 at 3, 56.
Defendant did not call any witnesses at the evidentiary
hearing. ECF No. 64 at 93.
February 25, 2017, Officers Minurka and Giancursio were
patrolling a “high-crime area” in their patrol
vehicle. ECF No. 53 at 41-42, 53-54. That evening, both
officers witnessed Defendant drive fast and evasively and
commit a traffic violation by failing to activate his turn
signal 100 feet prior to beginning a turn. ECF No. 53 at
47-48; ECF No. 64 at 59-60; N.Y. Veh. & Traf. Law §
1163(b). Officer Minurka initiated a traffic stop using his
emergency lights and siren. ECF No. 53 at 48; ECF No. 64 at
60. Defendant, however, did not pull over and continued down
the street until he reached a dead end, at which point
Defendant jumped out of his vehicle and fled on foot. ECF No.
53 at 48-50; ECF No. 64 at 60.
Giancursio and Minurka pursued Defendant. ECF No. 53 at 51;
ECF No. 64 at 60. During the chase, both officers witnessed
Defendant make a throwing motion and Officer Giancursio heard
a thud. ECF No. 53 at 52; ECF No. 64 at 61. Shortly
thereafter, Officer Giancursio apprehended the Defendant. ECF
No. 53 at 52; ECF No. 64 at 61. As Officer Giancursio was
escorting Defendant back to the patrol vehicle, both officers
heard Defendant spontaneously attribute his flight to
marijuana he had in his possession. ECF No. 53 at 53; ECF No.
64 at 61-62. In addition to the marijuana that was discovered
in Defendant's possession, Officer Giancursio also
discovered a handgun in the area where Defendant made a
throwing motion. ECF No. 64 at 62-63.
Minurka conducted a post-arrest interview of Defendant in the
patrol vehicle. ECF No. 53 at 55-57. Officer Minurka was in
the front seat and Defendant was handcuffed in the back seat
of the vehicle directly behind Officer Minurka. Id.
Officer Minurka testified that he read Defendant his Miranda
rights and that Defendant both stated he understood those
rights and agreed to speak with Officer Minurka even with
those rights in mind. Id. at 58-61. Officer Minurka
further testified that during the course of the
(approximately) forty-five-minute interview Defendant made an
oral statement and signed a written statement. Id.
Minurka explained that the Defendant was “very
eager” to speak with him- potentially because of their
prior relationship. Id. at 62. Prior to
Defendant's arrest, Officer Minurka responded to a
shooting, and Defendant was the victim. Id. at
74-76. In the course of investigating the shooting, Officer
Minurka spoke with Defendant on multiple occasions.
Id. Officer Minurka also stopped Defendant a total
of six times over the course of five months, including the
day before Defendant's arrest. Id. at 76-77; ECF
No. 64 at 4-7. On several occasions, he conducted searches of
Defendant and discovered marijuana, but he never arrested or
charged Defendant. ECF No. 64 at 7-9. Officer Minurka also
sent Defendant at least two text messages from his personal
phone to which Defendant did not respond. Id. at
9-11. Officer Minurka described his relationship with
Defendant as “completely voluntary, ”
“cordial, ” and “good.” ECF No. 53 at
70; ECF No. 64 at 45.
the relevant events, both officers violated department policy
by failing to activate their body-worn cameras. ECF No. 53 at
72, 86; ECF No. 64 at 64-65, 85. Both officers testified that
the cameras were new to them. ECF No. 53 at 73, 86; ECF No.
64 at 65-66. Officer Giancursio thought he activated his
camera, but he failed to do so. ECF No. 64 at 64-65. Officer
Minurka testified that he forgot to activate his camera
during the initial pursuit of Defendant and that his
understanding of department policy was that the camera should
not be activated while he interviewed Defendant in the patrol
vehicle. ECF No. 53 at 72-73, 87-89; ECF No. 64 at 29-31.
his arrest, Defendant's relationship with Officer Minurka
apparently soured. Defendant filed a complaint against
Officer Minurka with the Rochester Police Department's
Professional Standards Section on December 21, 2017. ECF No.
53 at 6-7. Defendant alleged a “pattern of
harassment” by Officer Minurka culminating in
Defendant's arrest. Id. at 16-17. Although the
complaint did not result in discipline for Officer Minurka,
both Officers Minurka and Giancursio received a counseling
memorandum for their failure to activate their body worn
cameras the night of Defendant's arrest. Id. at
72; ECF No. 64 at 32-33, 41-42, 85, 90.
district court reviews those portions of a R&R to which a
party has timely objected de novo. Fed. R. Crim. P. 59(b)(3).
When a party does not object to a portion of a R&R, a
party's objections are conclusory or general, or a party
repeats arguments made to the magistrate judge without
identifying a specific error in the judge's reasoning, a
district court reviews those portions for clear error.
United States v. Preston, 635 F.Supp.2d 267, 269
(W.D.N.Y. 2009); see also Fed. R. Crim. P. 59(b)(2); Loc. R.
Crim. P. 59(c)(2) (“Written objections . . . shall
specifically identify the portions of the proposed findings
and recommendations to which objection is made and the basis
for each objection, and shall be supported by legal
authority.”); Alvarez Sosa v. Barr, 369
F.Supp.3d 492, 497 (E.D.N.Y. 2019) (“[O]bjections that
simply reiterate the original arguments, without identifying
a specific error in the report and recommendation, e.g., why
a specific finding or conclusion is faulty or the magistrate
judge erred in rejecting a specific argument, are reviewed
under the clear error standard.”). After reviewing the
R&R and the objections to it, a district court “may
accept, reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.” Fed. R. Crim. P. 59(b)(3).
Feldman found that (1) Officers Minurka and Giancursio had
probable cause to make the traffic stop of Defendant; (2)
that Defendant was searched incident to his lawful arrest;
(3) that Defendant's statement to the effect of “I
ran because I had weed on me” was voluntary (i.e., it
was not the result of custodial interrogation); (4) further
statements were made subsequent to Miranda warnings and were
fully voluntary; and (5) that the officers' testified
credibly and their failure to turn on ...