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United States v. Tillard

United States District Court, W.D. New York

January 6, 2020

UNITED STATES OF AMERICA,
v.
ROBERT E. TILLARD, Defendant.

          DECISION AND ORDER

          HON. FRANK P. GERACI, JR. UNITED STATES DISTRICT COURT CHIEF JUDGE

         INTRODUCTION

         On 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.

         BACKGROUND

         On 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.

         On 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.

         Officers 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.

         Officer 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. at 62-68.

         Officer 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.

         During 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.

         Following 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.

         LEGAL STANDARD

         A 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).

         DISCUSSION

         Judge 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 ...


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