NY Supreme Court justice in Buffalo suppresses gun evidence due to illegal search

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A judge in Erie County has suppressed physical evidence in a gun case because of an illegal search.

Defendant Andrew Tomasello was charged with second-degree criminal possession of a weapon, and third-degree criminal possession of a weapon.

The charges are related to an incident on Oct. 6, 2023, where a gun was seized during a warrantless search of a storage compartment on Tomasello’s motorcycle.

Tomasello’s attorney, Timothy D. Gallagher, filed a motion to suppress the gun and statements made by Tomasello.

State Supreme Court Justice Paul B. Wojtaszek suppressed the gun, but denied the motion to suppress the statements.

Wojtaszek held a hearing where Buffalo Police officers Liam Baggott and Mark Antonio testified, along with detectives Lauren McDermott and Nicholas Herbert.

On Oct. 6, 2023, Baggott and Antonio responded to a report of a man with a gun at an auto repair shop.

They met with complainant David Tomasello, the defendant’s uncle, and the son of the shop’s owner, who was not present.

David Tomasello told police his nephew had a gun, and he had video evidence to prove it.

Baggott watched 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,” according to the decision.

Antonio was dispatched to the shop twice that day. The first time he went to the shop was in response to a 911 call of a burglary in progress.

He encountered Andrew Tomasello coming out of the bathroom with his hands up in the air. Antonio searched the building without asking permission, but he did not locate any contraband, including a gun. He did not speak with David Tomasello during the first visit.

Antonio left the scene, “as the situation was seemingly resolved,” according to the decision.

About 20 to 30 minutes later, Antonio was dispatched back to the same location, where he encountered David Tomasello, who said he was the son of the owner, who was not present, according to the decision.

David Tomasello told Antonio he had a video of Andrew Tomasello with a gun.

Antonio testified that David Tomasello lied when he claimed that Andrew Tomasello did not have the right to be at the shop. Andrew Tomasello actually worked there.

David Tomasello told the police he believed the gun was in the motorcycle compartment, according to police body-worn camera video.

Andrew Tomasello can be heard off screen yelling that none of them are allowed to touch his motorcycle and they had no permission to do so.

Andrew Tomasello’s position “was unmistakable,” according to the decision.

“The record is undisputed that the defendant did not want David Tomasello near his motorcycle,” according to the decision.

McDermott and Herbert took over the case, but Antonio and Baggott stayed on the scene.

Baggott heard Andrew Tomasello say that no one was to touch his motorcycle, but he still asked either Antonio or Herbert if it was okay for David Tomasello “to be pulling on the saddlebag,” according to the decision.

Andrew Tomasello 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,” Wojtaszek wrote.

The officers told David Tomasello that they needed a search warrant to search the motorcycle. David Tomasello “went ahead and grabbed a leather jacket from the bike and went through its pockets,” according to the decision.

Antonio explained to David Tomasello 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.”

After McDermott saw Andrew Tomasello “make furtive movements and speak at a fast pace,” she placed him in a patrol car “for the safety of the scene so the premises could be searched,” according to the decision.

Antonio then felt the scene was sufficiently secure to allow for a search warrant to be procured.

Baggott testified that he never told David Tomasello to search the motorcycle and he never saw him search it. Baggott said no one asked David Tomasello to open the motorcycle’s side satchel.

“David (Tomasello) just went ahead and did this on his own and he found a gun,” according to the decision.

Baggott asked Herbert if it was OK for David Tomasello to open the locked part of the motorcycle and Herbert replied: “If he’s doing it on his own,” a BWC showed.

McDermott asked Andrew Tomasello for permission to search his motorcycle, but “he was quite clear he was not giving anyone associated with law enforcement permission to open and search his motorcycle,” according to the decision.

Antonio made it clear to David Tomasello he could not open the saddlebag, but nobody stopped him, Wojtaszek wrote.

“After the gun was found, 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,” according to the decision.

“It is uncontroverted the defendant owned the motorcycle (and saddlebag), and he did not give either law enforcement or David (Tomasello) 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,” according to the decision.

The primary question is whether David Tomasello’s actions as a private citizen were lawful.

“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.” Wojtaszek wrote.

“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 Tomasello’s) persistent desire to unlock the motorcycle and incriminate the defendant,” Wojtaszek wrote.

The statements Andrew Tomasello made “were spontaneous and not the result of apparent inducement, provocation, encouragement or acquiescence,” the judge ruled and denied the defense motion to suppress the statement.

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