USA v. Mercado

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
DECISION AND ORDER
v. 	25-CR-114-A
LUIS MERCADO a/k/a Yvng Fabii,
Defendant.
I. 	BACKGROUND
Defendant is charged in a two-count indictment with illegal possession of a
machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and with possession
of a firearm with a removed, altered, or obliterated serial number, in violation of 18
U.S.C. §§ 922(k) and 924(a)(1)(B). Dkt. 6.1 On June 26, 2025, this Court referred
this case to United States Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to
28 U.S.C. § 636(b)(1)(A) and (B). Dkt 8. Pending before this Court are Defendant’s
objections (Dkt. 28) to Judge Schroeder's Report, Recommendation, and Order
(“RR&O”)(Dkt. 27), which recommends denying Defendant’s motion to suppress a
firearm, ammunition, and certain statements made by Defendant, which were
obtained during an encounter that Defendant had with law enforcement officers who
were working security at a college basketball game that Defendant attended as a
1 References herein, unless otherwise indicated, are to items set forth on the docket in
the above-captioned case.
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spectator. Dkt. 17, pp. 3-5. In his motion, Defendant argues that he was unlawfully
seized by the officers, as they lacked reasonable suspicion. Id., p. 7.
The facts relied upon by Defendant in his suppression motion as well as the
facts considered by Judge Schroeder in issuing his RR&O denying Defendant’s
motion were developed at an evidentiary hearing that was conducted in New York
State Court, on October 3, 2024.2 The parties agreed that a further evidentiary
hearing was not required. Dkt. 27, p. 2.
Following oral argument, Judge Schroeder on November 6, 2025, filed an
RR&O recommending that Defendant’s suppression motion be denied. Dkt. 27.
Defendant timely filed objections (Dkt. 28) and the government responded. Dkt. 30.3
For the reasons which follow, Defendant’s objections to the RR&O as well as his
motion to suppress are DENIED, and this Court adopts Judge Shroeder’s RR&O.
II. 	FACTS
The Court adopts the facts as found by Judge Shroeder in his RR&O. Dkt.
27, pp. 2-4. Briefly, those facts established that charges against Defendant arose as
the result of an incident which occurred on February 9, 2024, at the State University
at New York, Buffalo State (“Buffalo State”), during which law enforcement officers
2 As part of his suppression motion, Defendant included the transcript of the October 3,
2024, suppression hearing testimony of Deputy Sheriff Olszewski, of the Cattaraugus
County Sheriff’s Office, before the Honorable Sheila DiTullio, Erie County Court Judge.
Dkt. 17-3, pp. 1-42.
3 While this Court issued a text order setting a deadline of December 22, 2025, for the
Defendant to reply to the Government’s response to his Objections, see, Dkt. 29,
Defendant did not file a reply.
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responded to an altercation during a men’s college basketball game. At a previous
Buffalo State men’s basketball game, there had been a large brawl, and as a result,
there was an increased number of security officers present at the game on February
9, 2024. One of the individuals working security at the game was Anthony
Olszewski, an off-duty Deputy Sheriff with the Cattaraugus County Sheriff's Office.
During the game, Olszewski observed the Defendant—and others with Defendant—
behaving strangely. When a fight broke area in a vestibule outside the arena,
Olszewski responded and observed two individuals, David Pena-Batista and Angel
Quinones, to be actively fighting while others, while others, including Defendant,
were also present and appeared to be involved. When the two individuals who were
fighting refused his command to stop, Olszewski used pepper spray to break-up the
fight and eventually detained Batista. After handing Batista off to another officer who
was present, Olszewski returned to look for the others, including Defendant.
Olszewski saw that Defendant and others had returned to the area in which
they had previously been sitting, although now they were “spread out.” Olszewski
found the manner in which they were seated to be strange, as it appeared they were
“attempt[ing] to disguise that they were…a group and they were all involved in this
altercation.” 	As the officers attempted to identify the parties involved in the
altercation, Defendant alighted in a strange manner. As Olszewski described it,
Defendant “got up, immediately put his hands in his front pockets; he had like a pop
of some sort in his hands, and with both hands, you know, put his hands in his front
of his pockets near his waistband where his pockets were.” Olszewski ran in pursuit
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of Defendant. With Olszewski chasing Defendant, another officer, Lieutenant
Helling, apprehended Defendant, and as Olszewski approached Helling and
Defendant, Defendant stated, “I got the thing on me.” Olszewski responded,
“What?” Defendant stated, “I got the joint on me,” and put his hands-up and looked
right down at his waistband. At that point , Olszewski, suspected Defendant to be
armed, and a loaded Glock 19 nine-millimeter pistol was discovered in Defendant’s
waistband. The firearm was not in “stock” condition—it featured a machinegun
conversion device, a select-fire switch, and an extended ammunition magazine, and
its serial number was defaced.
III. 	DISCUSSION
A district court reviews any specific objections to a report and
recommendation on a dispositive issue, such as a motion to suppress, under a de
novo standard. Fed. R. Crim. P. 59(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of
the court shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”); see,
United States v. Stearns, 556 F. Supp. 3d 208, 210 (W.D.N.Y. 2021). This Court
has, pursuant to 28 U.S.C. § 636(b)(1)(B), made a de novo determination of the
Magistrate Judge's RR&O. The Court has also reviewed the submissions of the
parties, and upon de novo review, the Court adopts the proposed findings for the
reasons stated in Judge Schroeder's RR&O.
Briefly, the Court observes that Defendant’s suppression motion hinges
completely on whether the initial seizure of Defendant was lawful, since immediately
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upon being seized by the officers, Defendant, without being frisked or questioned,
put up his hands and told Officer Olszewski that he had a weapon on him. As such,
his spontaneous and voluntary post-seizure statements are admissible because they
were made in the absence of police questioning or any other conduct by the police
officers “reasonably likely to elicit an incriminating response.” Rhode Island v. Innis,
446 U.S. 291, 301 (1980); United States v. Gelzer, 50 F.3d 1133, 1138 (2d Cir.
1995); United States v. Colon, 835 F.2d 27, 30 (2d Cir. 1987). Further, Defendant’s
spontaneous statements, at a minimum, justified the decision to perform the
subsequent frisk/pat-down which disclosed the firearm that Defendant possessed.
See, United States v. Padilla, 548 F.3d 179, 189 (2d Cir. 2008)(pat-down during
Terry-stop justified where officers have reason to believe that a suspect is armed
and dangerous).
Turning to the propriety of the Defendant’s seizure, the Court observes that
the Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. As pertinent here, a seizure requires “either physical force ...
or, where that is absent, submission to the assertion of authority.” United States v.
Swindle, 407 F.3d 562, 572 (2d Cir. 2005) (quoting California v. Hodari D., 499 U.S.
621, 626 (1991)). Further, as the text of the Fourth Amendment makes clear, the
“ultimate measure of the constitutionality” of any governmental search or seizure is
“reasonableness.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995);
United States v. Bailey, 743 F.3d 322, 331 (2d Cir. 2014)(“[T]he ultimate measure of
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the constitutionality of a government search or seizure is reasonableness, a matter
generally determined by balancing the particular need to search or seize against the
privacy interests invaded by such action.” (internal quotation marks and citations
omitted)).
As explained by the Supreme Court, an officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop—a so-called Terry-stop—"when the
officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v.
Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).
“Reasonable suspicion to conduct a Terry-stop exists when a law enforcement
officer can ‘point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion.’” United States v. Bell,
733 F. App'x 20, 21 (2d Cir. 2018) (quoting Terry, 392 U.S. at 21 (alteration omitted)).
In determining whether an officer had reasonable suspicion for a Terry-stop, the
Court “must consider the totality of the circumstances surrounding the stop” and
“evaluate those circumstances through the eyes of a reasonable and cautious police
officer on the scene, guided by his experience and training.” United States v.
Bayless, 201 F.3d 116, 133 (2d Cir. 2000) (internal citations and quotation marks
omitted).
Although “an inchoate and unparticularized suspicion or hunch” cannot
support reasonable suspicion, United States v. Padilla, 548 F.3d at 187, a law
enforcement officer is permitted to “draw on his own experience and specialized
training to make inferences from and deductions about the cumulative information
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available to him that might well elude an untrained person.” Id. (internal quotation
marks and alterations omitted). “[C]ontextual considerations” factor into a
reasonable-suspicion analysis, and the officers’ assessment of a person's “nervous,
evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v.
Wardlow, 528 U.S. at 124. Moreover, “[h]eadlong flight—wherever it occurs—is the
consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such.” Id.
Here, this Court concludes that Judge Schroeder correctly determined that
law enforcement’s seizure of Defendant was justified as a lawful Terry-stop
supported by reasonable and articulable suspicion that criminal activity was afoot.
The testimony presented at the suppression hearing established the following facts
which, considered in totality, gave rise to a reasonable suspicion, at the time that
Defendant was stopped,4 that that criminal activity was afoot and that Defendant
was involved in such activity.
Specifically, Deputy Olszewski knew: (1) that there had been a large brawl at
a prior Buffalo State Men’s Basketball game, which prompted a larger police
presence than usual at the February 9, 2024, game, see, Dkt. 17-3, pp. 4-5; (2) that
4 As noted, the actual stop of Defendant was effectuated by Lieutenant Helling, one of
the other officers who was present and working with Deputy Olszewski that night. Dkt.
17-3, p. 17. At the time he was stopped by Lieutenant Helling, Defendant was being
chased and followed closely by Deputy Olszewski. Id. Under the collective knowledge
doctrine, an investigatory stop is permissible when the officer lacks specific information
required for reasonable suspicion, but sufficient information is known by other officers
initiating or involved with the stop. See United States v. Hussain, 835 F.3d 307, 316 n.8
(2d Cir. 2016); United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001).
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Defendant, and another individual subsequently identified as Quinones, together
with a group of five or six others, left the basketball game in a hurry only quickly to
reenter the arena, id., pp. 8-10; (3) that when Defendant and the group he was with
reentered the arena, they did not respond at all to Deputy Olszewski’s inquiry
whether “everything [was] good,” and instead walked past him, id., p. 9; (4) that after
Defendant and his group had already once left the arena in a hurry, Deputy
Olszewski observed the group again rapidly leave the arena for a second time, id.,
pp. 10-11; (5) that upon following Defendant and his group out of the arena a second
time, Deputy Olszewski observed Defendant involved in a fight occurring between
Quinones and an individual subsequently identified as Pena-Batista, id., pp. 6-7; 11-
13; (6) that after observing the brawl and pepper spraying Pena-Batista, id., pp. 12-
13, Deputy Olszewski’s noticed that Defendant and his group had returned to the
arena for a second time, but that they had now spread themselves apart in the
bleachers, which Deputy Olszewski believed to be an effort to avoid detection, id.,
pp. 13-14; (7) that when Deputy Olszewski at this point, ordered Defendant and the
group to leave the arena, they again did so in a hurry, id., pp. 14-15; (8) that while
Defendant was leaving the arena, Deputy Olszewski observed Defendant walking in
what he believed was a strange manner—by placing both of his hands in his front
pockets near his waistband despite also holding a beverage in his hands, id.; (9) that
when Deputy Olszewski’s asked the group to stop so that he could further
investigate the fight he had observed, Defendant fled, id., p. 25, and with Olszewski
in pursuit, another law enforcement officer stopped Defendant, and once stopped,
Defendant put his hands up and immediately disclosed to the Olszewski that he had
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a gun, id., pp. 17; Dkt. 17-2, p. 3. At that point, a loaded Glock 19 with a "switch"
and an extended magazine was recovered by from Defendant’s front waistband. Id.
In view of these facts considered in totality, the Court agrees with Judge
Schroeder’s conclusion that the Terry-stop of Defendant was lawful as it was based
upon the officer’s reasonable suspicion that “that criminal activity was occurring or
was about to occur, i.e., the brawling between and by a number of individuals,
including the defendant,” and that further investigation of Defendant was justified.
Dkt. 27, p. 14. With Defendant being lawfully stopped, neither his voluntary
statement disclosing to the officers his possession of a firearm nor the seizure of
such firearm and ammunition by the officers are subject to suppression.
IV. 	CONCLUSION
For the foregoing reasons, Defendant’s objections to the RR&O (Dkt. 28) are
DENIED, Defendant’s motion to suppress (Dkt. 17) is DENIED, and Judge
Schroeder’s RR&O (Dkt. 27) is adopted in its entirety. The parties are directed to
appear before this Court on Wednesday, January 21, 2026, at 9:30 A.M. to set a
date for trial.
IT IS SO ORDERED.
s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: January 14, 2026
Buffalo, New York
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