United States v. Seldinas
| Decision Date | 24 November 2014 |
| Docket Number | No. 12–CR–111–A.,12–CR–111–A. |
| Parties | UNITED STATES of America, v. Mark SELDINAS, Defendant. |
| Court | U.S. District Court — Western District of New York |
Herbert L. Greenman, Buffalo, NY, for Defendant.
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.
Defendant Mark Seldinas is charged in an Indictment [12]1 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 [22], §§ XI and XII.2 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 [59]. The parties submitted post-hearing briefs [63, 64], and oral argument was held on August 21, 2014[68]. 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 [59], 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 [59], 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 [59], 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).3 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 ()) at Seldinas' feet, but did not observe the bag fall to the ground. October 7, 2013 hearing transcript [59], 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 could take possession of it, as well as the additional pills (id., pp. 20–21, 37). There were two occupants in the vehicle and he asked them to exit the vehicle while he retrieved the pills from the center console (id., p. 20). SA Nastoff testified that he did not remember whether the console was open when he first approached the vehicle (id., p. 38).
After SA Nastoff took possession of the additional pills contained in the vehicle (gov. ex. 3 [50–1], p. 4 ()), Seldinas and his vehicle were taken to the Amherst Police Department. October 7, 2013 hearing transcript [59], pp. 21, 23. Though the vehicle was impounded because of its use in a drug transaction, the agents ultimately decided that it would not be seized, and released it to Seldinas' girlfriend, who was an occupant in the vehicle (id., pp. 25–26).
At the Amherst Police Department, Seldinas was placed in interview room, where he was questioned by SA Nastoff, Officer Trabert, and SA Wisniewski about his drug trafficking activities and he agreed to provide additional information (id., pp. 23–24). SA Nastoff was unable to recall if Seldinas was Mirandized again before this interview occurred (id., p. 23).
During the interview, Seldinas provided information about this drug transaction and agreed to cooperate with respect to future investigations (id., pp. 24–25). At no time on November 5, 2011 did Seldinas ask for the interview to cease or request an attorney (id., p. 25). Ultimately, Seldinas cooperated against the individual that sent him to Buffalo, who was eventually arrested and prosecuted in the Western District of New York (id., pp. 40–41).
Officer Trabert testified that in November 2011 he was assisting SA Nastoff in a prescription pill trafficking case (id., pp. 45–46). He was instructed by SA Nastoff to report to Michael's department store because the DEA “needed extra bodies for surveillance and arrest” (id., p. 46). He was briefed on the background of the case prior to conducting surveillance and was aware the CS was scheduled to meet an individual at this location (id., p. 47). Officer Trabert positioned his vehicle near the front of the store so that he would have a clear view of the CS (id. ). Because he was conducting surveillance alone in his vehicle without a Kel monitor, Officer Trabert was relying upon his radio communications with SA Nastoff to know what was occurring (id., pp. 46–48).
During his surveillance, Officer Trabert observed Seldinas approach the CS (id., p. 48). The two men spoke for about a minute before Officer Trabert and the other agents were given orders via the radio “to approach and arrest” (id., pp. 48, 58). Officer Trabert testified that he was the first officer to reach Seldinas, though the other officers were just a few seconds/steps behind him (id., pp. 48–49).
As Officer Trabert approached Seldinas, he observed...
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