The defendant, ANDREW TOMASELLO, (hereinafter "the defendant"), is charged by this indictment with Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03(3) and Criminal Possession of a Weapon in the Third Degree, Penal Law § 265.02(8) regarding an October 6, 2023 incident where a gun was seized during a warrantless search of the defendant's motorcycle.^[FN1] The defendant moves to suppress all evidence seized. A hearing was conducted pursuant to Mapp v Ohio (367 US 643 [1961]), Dunaway v New York (442 US 200 [1979]) and People v Huntley (15 NY2d 72 [1965]).^[FN2]

Buffalo Police Officers Liam Baggott and Mark Antonio testified as did Buffalo Police Detectives Lauren McDermott and Nicholas Herbert. Two exhibits were admitted into evidence and reviewed by this court.

The court also reviewed the following post-hearing submissions:

• The defendant's Memorandum of Law by Timothy D. Gallagher, Esq., dated March 7, 2025, and

• The People's Memorandum of Law by Richard K. Barney, III, Esq., dated March 18, 2025.

Findings of Fact and Conclusions of Law:

The credible evidence at the hearing established that on October 6, 2023 Buffalo Police Officer Liam Baggott responded to a "man with a gun" call with his partner, Officer Mark Antonio. When he arrived at the scene, an auto repair shop on William Street in South Buffalo, he met with the complainant, David Tomasello (hereinafter "David"). David is the defendant's Uncle. David is also the son of the shop's owner who was not present. David told Officer Baggott that his nephew had a gun and that he had video evidence to prove it. Officer Baggott reviewed the video which seemed to depict a black object in the defendant's hand, but he could not tell definitively if it was a gun. David allowed the officer into the shop where he encountered the defendant who seemed talkative and skittish.

The defendant said he owned the motorcycle present in the shop. The defendant was being watched by Officers Baggott and Antonio and he was allowed to use his phone and vape while the initial investigation proceeded.

Buffalo Police Officer Mark Antonio was dispatched to the shop twice that day.

The first time he went to the shop was in response to a 911 dispatch call of a burglary in progress. He arrived and considered the situation to be high risk. He wanted to secure the scene and when he arrived he encountered the defendant coming out of the bathroom with his hands up in the air. Officer Antonio searched the building without asking permission, but he did not locate any contraband including a gun. He did not speak with David during this first visit. He released the defendant and left the scene as the situation was seemingly resolved.

However, about 20-30 minutes later he was dispatched back to the site. This time he did encounter David who represented himself to be the son of the owner who was not present. David said he had video of the defendant with an assault weapon. Officer Antonio's body worn camera (hereinafter "BWC') was activated for most of the relevant time periods (People's Exhibit 2).

Officer Antonio testified that David lied when he claimed the defendant did not have the right to be at the shop when in reality the defendant worked there part-time and was allowed on the property. David said he believed the gun was in the motorcycle and David was observed starting to go through the motorcycle. The defendant can be heard off screen yelling that none of them are allowed to touch his bike, they have no permission or right to do so (People's Exhibit 2). The defendant's position was unmistakable. The record is undisputed that the defendant did not want David near his motorcycle.

During the course of the second response Buffalo Police Department Detectives Lauren McDermott and Nicholas Herbert arrived and took over the lead on the case. The officers remained on scene and they all worked together to figure out what was going on.

Officer Baggott heard all of the defendant's statements that no one was to touch his motorcycle, but he still asked either Officer Antonio or Detective Herbert if it was okay for David to be pulling on the saddlebag.

The defendant asked if he was free to go after about 10 minutes, but he was told to stay so that no one's rights were violated.

The officers indicated to David that they needed a search warrant and that they were not [*2]allowed to just search the motorcycle. Nonetheless, David went ahead and grabbed a leather jacket from the bike and went through its pockets. Officer Antonio can again be heard saying to David there is a "right" way to do this [to search property].

Officer Antonio said it did not appear that David was going to listen to him and he did not seem interested in waiting and letting the police do their job lawfully. Officer Antonio explained to David that he is obligated to work within the confines of the law in terms of ensuring civil rights are respected and a search warrant is procured if needed.

While this was going on, Detective Lauren McDermott observed the defendant make furtive movements and speak at a fast pace, all behaviors that led her to place him in a patrol car for the safety of the scene so the premises could be searched. She removed the defendant from the building because his behavior was erratic and she understood there could possibly be guns on scene. Therefore it was safer for all parties present if he was removed.

Importantly, Officer Antonio then felt the scene was sufficiently secure to allow for a search warrant to be procured. He realized by this time there was no trespassing and no burglary ongoing. There was no ongoing threat or emergency. He conceded there was no chance the evidence (which if anywhere would be found in the motorcycle) would be destroyed. There was no urgency. He told the detectives on scene that David thinks there is a gun in the motorcycle, but he said he did not tell them how aggressively David was trying to get into the motorcycle.

Officer Baggott testified that he never directed David to search the motorcycle and he never saw David search it. He said no one asked David to open the motorcycle's side satchel. David just went ahead and did this on his own and he found a gun. Officer Baggott was wearing a BWC (People's Exhibit 1) and at some point he asked Detective Herbert if it was ok if David opens the locked part of the motorcycle. Detective Herbert replied "if he's doing it on his own."

In terms of scene control, David was allowed to walk in and out as he pleased and he was never directed to stay outside.

When Detective Herbert responded he claimed he did not direct David to search the motorcycle either. Detective Herbert agreed to observe the video David had of the scene and the defendant to investigate the case and determine if a search warrant was needed. He said he did not recall Officer Baggott asking him if David was allowed to search the bike because he was focused on reviewing the video. Detective Herbert did speak with David while on scene. He also spoke with Officer Antonio while on scene. It was brought to his attention that David was trying to access a locked saddlebag. While he admitted there is always time to get a search warrant, he could not recall in this case talking to Detective McDermott about whether they had enough evidence to get a search warrant.

Detective McDermott heard Officer Antonio say "he tried to open the saddle bag . . . " which she later learned was locked (People's Exhibit 2).

Detective McDermott spoke with the defendant. She asked him for permission to search his motorcycle, but he rejected this and was quite clear he was not giving anyone associated with law enforcement permission to open and search his motorcycle. She also watched David's video, but she could not tell what was in the defendant's hand — to her it looked like an angle iron.

She testified she did not direct David to open the satchel of the motorcycle. She claimed she did not hear anyone else direct him to do this either. She admitted David was able to freely come and go at the scene. She also admitted David was fairly explicit that he was going to go in and get the subject weapon, in fact he can be heard to say "I can legally open it up if you get his keys . . . "

Detective McDermott said she did not give David approval to open the motorcycle's saddlebag. However, she admitted she failed to direct him to not open the saddlebag as well. (Emphasis added). She recalled Detective Herbert saying they could not open the saddlebag, but David replied, "you can't but I [David] can . . . "

Detective Herbert said there was not enough time to stop David from opening the saddlebag, but he also seemed to testify there was no issue with letting David move freely about the scene because it was his property. Officer Antonio made it clear to David he could not open the saddlebag.

Nonetheless, no one stopped David and when his persistence finally paid off and he unlocks the motorcycle and finds a gun he can be heard to say in what can fairly be described as a sarcastic or mocking tone, words to the effect of: "oh my, look what we have here . . . " as if he knew the gun was going to be there and he was not going to be deterred if permitted to move freely about the scene with the apparent motive and goal of finding the gun and incriminating the defendant.

Detective Herbert testified "I didn't think that he had any right to open the bike." And while he said he never gave David permission, he also conceded he never asked him to leave the shop.

After the gun was found, Detective McDermott went back to the defendant in the patrol car trying to seek permission for another search, possibly for a cubby under the motorcycle seat where a second gun might be found.

Detective McDermott candidly conceded that generally it is an issue if law enforcement permits a civilian onto a crime scene with the ability to try and access locked compartments in the middle of an investigation.

Mapp Hearing:

Physical evidence was seized from the saddlebag attached to the defendant's motorcycle. It is uncontroverted the defendant owned the motorcycle (and saddlebag) and he did not give either law enforcement or David permission to search the saddlebag. In fact, he explicitly made it clear to everyone on site that no one had his permission to touch his bike.

While this took place at an auto repair shop where he was apparently an employee, the defendant clearly has standing to challenge the search because he established a reasonable expectation of privacy in the place or items searched (see People v Ramirez-Portoreal, 88 NY2d 99 [1996]).

Next, the People have the burden at a suppression hearing of showing the legality of the police conduct in the first instance (see People v Baldwin, 25 NY2d 66, 70 [1969]; People v Ponce, 203 AD3d 1628 [4th Dept 2022]). Once the People have met this burden, it is the defendant that bears the burden of proving any illegality of the police conduct (see People v Berrios, 28 NY2d 361 [1971]; People v Baldwin, 25 NY2d 66 [1969]).

It is well settled that "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home" (Kirk v Louisiana, 536 US 635, 638 [2002]; Payton v New York, 445 US 573, 589-590 [1980]; People v Forbes, 71 AD3d 1519, 1520 [4th Dept 2010]). The court must first determine if there existed an emergency exception to the warrantless search supported by reasonable grounds to believe an emergency was at hand; evidence the search was not primarily motivated by the intent to seize evidence; and a reasonable basis to associate the emergency with the area or place searched (see People v Scott, 133 AD3d [*3]794, 797 [2d Dept 2015]). David accessed the locked motorcycle here after the defendant was safely in a patrol car (or at least out of the shop) and the scene was secure. Reasonable threats to officer or public safety, if any, were eliminated. As such, an emergency situation did not exist.

That leaves the primary area of legal dispute in this proceeding to be whether David's actions as a private citizen were lawful or whether his actions were so pervaded by governmental involvement that they lost their private character rendering them unconstitutional.

Private Conduct: "[Y]ou can't but I [David] can . . . ":

"Under both the Fourth Amendment and the New York Constitution, evidence acquired in a warrantless search by a private citizen need not be suppressed unless the citizen was acting as an agent of the police . . . Indicia of governmental involvement include 'a clear connection between the police and the private investigation; completion of the private act at the instigation of the police; close supervision of the private conduct by the police; and a private act undertaken on behalf of the police to further a police objective . . . ' Moreover, a private citizen does not become an agent of the police simply by turning over suspected contraband . . . " (People v Ruppert, 42 AD3d 817 [3d Dept 2007]) (internal citations omitted) quoting People v Ray, 65 NY2d 282, 286 [1985]).

In People v Brown (34 AD2d 108, 110 [3d Dept 1970]) the court emphasized the importance of analyzing the "particular factual situations," and the need to not ignore the realities of the situation when deciding if the actions of the private actor were taken "under color of police authority."

The defendant here argues that the police did not have the requisite probable cause to conduct a warrantless search of the motorcycle's saddlebag because David was not a credible witness, and even if there was probable cause there was no exception to the warrant requirement because "they were on private property" (Defendant's MOL, at p. 2). The defendant also argues that while a search conducted by a private person is not generally subject to Fourth Amendment scrutiny, private conduct may become so pervaded by governmental involvement that the search is entitled to full constitutional protections (see People v Ray, 65 NY2d 282 [1985]). In short, the defendant argues that the police had both the obligation as well as the opportunity to stop David from opening the saddlebag, but they let him do it anyway which amounted to tacit approval and was, therefore, unconstitutional.

The People respond by arguing that the police had probable cause to search the motorcycle based on their reasonable belief that a crime had been or was being committed based on David's statements and video. They also argued the existence of exigent circumstances regarding both the safety of the public and law enforcement as well as the need to preserve the suspected evidence. Beyond that the People argue that the protections of the Fourth Amendment do not even apply here because the gun was seized by a private individual and not at the direction of the police.

The People seem to focus on what they characterize as an apparent inconsistency in the defendant's argument, specifically the defendant (according to the People) argues at one point that the police were willfully blind while at the same time arguing the police tacitly approved David's conduct resulting in close supervision (People's MOL, at ¶¶ 16-17). While this court appreciates the distinction the People are trying to make, it does not cloud this court's perception of what the facts actually reveal: that the police knew what David's intentions were, they allowed him to move freely about the crime scene, and rather than remove him from the object of his [*4]clear focus they verbally debated the situation all the while allowing David to spring into action. Semantics and hair-splitting cannot salvage this unlawful search.

The search here, although conducted by a civilian was not simply a private search. A private search would have taken place if David had searched the motorcycle and its compartments before calling the police, and discovered the gun and then reported his discovery to the police. To argue that the search was private because David called the police in the first instance and because he later removed the gun from the saddlebag ignores the realities of the situation.

By contrast, the Fourth Department in People v Hazzard (129 AD3d 1598, 1599 [4th Dept]) held the search to be private where a rape victim and her mother's boyfriend found a towel with the defendant's DNA on it when they went to the victim's house to retrieve her belongings after the incident. There was no clear connection between the police and the private actions, the police did not instigate the private actions, and the private act was not undertaken on behalf of the police to further a police objective.

The facts here are considerably different from Hazzard because law enforcement on site failed to secure the alleged crime scene and were well aware, or should have been well aware, that David was going to open the motorcycle — this court finds their actions were clearly connected as a result. Black's Law Dictionary defines "instigate" as follows: "[t]o stimulate or goad to an action, especially a bad action; one of its synonyms is 'abet.'" Semantics should not serve to salvage what is otherwise unlawful conduct.

Awareness of the private citizen's intentions and the failure to eliminate this risk by simply securing the scene qualifies as instigation by any other name. It rationally follows that the police permitted this activity to proceed when it would clearly further a police objective. The court simply cannot countenance law enforcement's acquiescence to what they had to know was David's persistent desire to unlock the motorcycle and incriminate the defendant. He would not be stopped unless removed, and he was not removed. While no one came right out and said it, all law enforcement testimony here was that the integrity of a crime scene is best maintained when only necessary persons are present — here, David was not necessary as the scene was stable, the defendant was safely in a patrol car, and the speculated gun was secured in a locked motorcycle. There was no good reason for David to be given free permission to roam the scene and stalk the motorcycle. While he may not have been granted any type of formal agency, the police knew or should have known of his intentions and they let him carry his intentions out. If not explicit agency, this court finds this to be implicit agency to such a degree that governmental involvement so pervaded David's actions that they lost their private character and therefore required the full panoply of constitutional protections (see People v Ray, 65 NY2d at 286).

For all the foregoing, this court finds that the People failed to meet their burden and the defendant's motion should be granted and the evidence suppressed.

Huntley Hearing:

The People have the burden of establishing the voluntariness of a defendant's statement beyond a reasonable doubt (see People v Witherspoon, 66 NY2d 973 [1985]). Miranda warnings are an absolute prerequisite to custodial interrogation (see Miranda v Arizona, 384 US 436 [1966]).

"The Miranda rule protects the privilege against self-incrimination and, 'because the [*5]privilege applies only when an accused is 'compelled' to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to custodial interrogation'" (People v Paulman, 5 NY3d 122, 129 [2005]) (internal citations omitted). The term "interrogation" refers not only to express questioning, but also to words or actions of the police that the police should know are reasonably likely to elicit an incriminating response (People v Paulman, 5 NY3d at 129).

This matter was scheduled to include a Huntley hearing, and while the defendant's post-hearing brief did not address statements, the People did.

The defendant in this case was arguably in custody because he was not free to leave. A reasonable person in the defendant's position innocent of any crime would not have believed he was free to leave (People v Yukl, 25 NY2d at 589). In fact, while given many benefits on scene that most defendants are not, including apparent use of his cell phone, when he asked to leave he was told to stay while everyone's civil rights were being protected. Eventually he was placed in a marked patrol car to ensure the safety of the scene while the investigation proceeded. The statements were made at various times on scene and captured on BWC (People's Exhibits 1 and 2). Volunteered statements are not barred by the Fifth Amendment and if the defendant insists on talking this does not constitute "custodial interrogation" within the meaning of Miranda (see People v Kaye, 25 NY2d 139, 144 [1969]). The statements made were spontaneous and not the result of apparent inducement, provocation, encouragement or acquiescence (see People v Corey, 209 AD3d 1306, 1307 [4th Dept 2022]; see also People v Bowen, 195 AD3d1388, 1389 [4th Dept 2021]) (holding spontaneous statements not triggered by police conduct which should reasonably have been anticipated to evoke a declaration from defendant are admissible)).

As such, the People met their burden of establishing the statements were voluntarily made, and the defendant failed to meet his own burden of persuasion that the statements should be suppressed.

For all the foregoing, it is hereby:

ORDERED, the defendant's motion seeking to suppress the physical evidence seized is granted, and it is further,

ORDERED, the defendant's motion seeking to suppress statements is denied, and it is further,

ORDERED, that this shall constitute the decision and order of the court, and no further order is required.