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United States v. Perine

United States District Court, D. New Mexico

September 5, 2019


          Irma Rivas Attorney for Mr. Ferine

          Presiliano Torrez, Timothy Trembley Assistant United States Attorneys



         THIS MATTER is before the Court on Defendant Perlyn Perine's Motion for Suppression of Evidence [Doc. 67], filed February 1, 2019. The government filed a Response on February 15, 2019 [Doc. 74], and Mr. Perine filed a Reply on March 1, 2019 [Doc. 78]. The Court held an evidentiary hearing on August 16, 2019. Having reviewed the briefs, testimony, exhibits, and relevant law, for the reasons set forth below, the Court DENIES the Motion for Suppression of Evidence.


         On March 23, 2016, an Indictment was returned charging Mr. Perine and his co-defendant with one count of Interference with Interstate Commerce by Robbery and Violence, in violation of 18 U.S.C. § 1951(a), and Aiding and Abetting, in violation of 18 U.S.C. § 2, and one count of Using, Carrying, and Discharging a Firearm in Furtherance of Such Crime, in violation of 18 U.S.C. § 924(c). Doc. 4. On July 9, 2019, the government filed a Superseding Indictment, again charging one count of Interference with Interstate Commerce by Robbery and Violence, in violation of 18 U.S.C. § 1951(a) and Aiding and Abetting, and one count of Using, Carrying, and Discharging a Firearm During and in Relation to a Crime of Violence, and Possessing a Firearm in Furtherance of Such Crime, and Discharging Said Firearm, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Doc. 89. Mr. Perine filed the instant Motion for Suppression of Evidence [Doc. 67] on February 1, 2019. The government filed a Response [Doc. 74] on February 15, 2019, and Mr. Perine filed a Reply [Doc. 78] on March 1, 2019. On August 16, 2019, the Court held an evidentiary hearing during which it heard testimony from three government witnesses: Officer Jeffrey Bludworth, Detective Denice Myers, and Officer Hector Marquez.


         This case concerns the arrest of Perlyn Perine made by law enforcement in a parking lot near Hotel Circle in Albuquerque, New Mexico, as well as the field identification by one of the victims of the robbery. The following represents the Court's findings of fact, based on the parties' briefing, the testimony of witnesses at the evidentiary hearing on August 16, 2019, and the exhibits.

         On November 18, 2015 prior to 11:00 a.m., two men entered a Sprint store located at 2520 Juan Tabo Boulevard NE in Albuquerque. They approached the counter and pointed firearms at the two employees, forced the employees into the back room at gunpoint, and bound and gagged them with zip ties and duct tape. Doc. 74 at 1-2. Video surveillance from the store's security system showed that during this process, one of the robbers inadvertently discharged his firearm and shot the other in the lower back. Id. at 2. Doc. 67 at 2. The men nevertheless continued to pack bags with money, cell phones, and items from the back safe, as well as the employee's personal cell phones, tablets, and a backpack. Doc. 74 at 2.

         One of the employee's iPads had GPS tracking, which allowed for digital monitoring. Doc. 67 at 2. Officers with the Albuquerque Police Department (APD) responded to the robbery and spoke to the store clerks, reviewed the surveillance videos, and were able to track the iPad's GPS location to the area of 75 Hotel Circle in Northeast Albuquerque at the Freeway Inn. Doc. 74 at 2.

         Officer Bludworth testified that he was dispatched to help assist in the area of Hotel Circle in an attempt to "locate the subject that robbed the Sprint store." Doc. 104 at 6. At the time he was dispatched, he had received the entire APD call up to that point, was able to listen to the radio, and could view the computer aided dispatch (CAD) on the computer inside his vehicle. Id. There were more than ten officers on the call, several of whom were located by the Freeway Inn or around Hotel Circle. Id. at 25. Officer Bludworth testified that he was dispatched to locate the suspects, who were described as two black male offenders. Id. at 8-9. Initially, the search was based off of information from two 9-1-1 calls, one from the Sprint store and one from an adjacent flower shop. Id. at 10. In addition, the GPS tracking showed a location of Campo del Oso and Hotel Circle, near the Freeway Inn. Id. at 11. There was a possible photo from the real-time crime center, but several officers including Detective Myers logged onto the call and requested that no photos be shown to any witnesses or front desk staff at the Freeway Inn to preserve the witness information. Id. at 14. At 11:25, an officer on the CAD communicated that there were two black male adults on the second floor, and that one black male adult had a shaved head and a dark jacket. Id. at 15; Gov. Ex. 2 at 8.

         Officer Bludworth testified that at this time between approximately 11:27 and 11:29, the officers at the Freeway Inn were observing these two men matching the descriptions of the suspects as relayed from the officer on-scene at the robbery; this was the same location where the cell phone GPS was pinging, so the officers were starting to hone in on these individuals. Doc. 104 at 17; Gov. Ex. 2 at 8-9. Officer Bludworth arrived at that location at approximately 11:27 a.m. Id. at 13. He testified that the officers on-scene at the Freeway Inn were calling out descriptions of the subjects they were observing to the officer who was on-scene at the site of the robbery, Officer Neiberger. Id. at 17-18. At 11:29:53, officers on site at the Freeway Inn confirmed a subject matching the description of the second offender described by Officer Neiberger: a black male adult with a black beanie, black jacket, and rolling a brown luggage bag. Id. at 18; Gov. Ex. 2 at 9. Several minutes later, the officers on site observed him "walking gingerly," which was an indication that he was the possible subject of the accidental shooting at the Sprint store. Id. at 19. On the CAD, Officer Neiberger reported that the surveillance video showed that the individual was shot on the left side, possibly the lower back or buttock area. Gov. Ex. 2 at 10.

         At approximately 11:36 a.m., Officer Bludworth and another officer prepared to make contact with Mr. Perine in front of Babies R Us. Id. He testified that Mr. Perine's black jacket was opened at the time he made contact with him. Doc. 104 at 32. He was walking through the Babies R Us parking lot with a suitcase. Doc. 67 at 2. Officer Bludworth reported on the CAD that Mr. Perine was in custody at 11:43:04. Gov. Ex. 2 at 10. This was just over an hour after the time the initial call came in regarding the robbery, at 10:36:51. Doc. 104 at 23. At 11:47, under four minutes after the initial detention, Officer Bludworth relayed that the subject had a blue and gray striped sweatshirt as well as a distinctive necklace, that he matched the description of the suspect, and that he was being detained. Gov. Ex. 2 at 11. He testified that he contacted Mr. Perine, asked him to place his hands behind his back as he detained him, then placed him in handcuffs and patted him down. Doc. 104 at 22. He testified that he placed him in handcuffs because "he was a suspect - or he matched a description of a suspect." Id. He also put him in handcuffs because he knew he was potentially armed, and the offense for which he was being detained-robbery-is a violent felony. Id.

         Officer Bludworth described that he was looking for a suspect in a robbery case at the time he detained Mr. Perine, and he was not looking to help an injured citizen. Id. at 30. He placed him in handcuffs right away, and placed him in the patrol car despite Mr. Perine expressing that he did not want to get in the vehicle. Id. He testified that he never told Mr. Perine that he was free to leave. Id. He told Mr. Perine to get in the patrol car because it was cold, and when Mr. Perine stated that he was not cold and asked why he was being put in the car, Officer Bludworth told him that he would "explain everything in just a second" and that the car would keep them warm. Gov. Ex. 5.

         Officer Bludworth also testified regarding the video taken by his lapel camera, which begins recording once Mr. Perine has already been placed in handcuffs and is being placed in the back of the patrol car. Id. at 23. He stated that he did not turn the camera on until midway through his contact with Mr. Perine. Id. at 24. He testified that he never informed Mr. Perine that he was under arrest, nor did he read him his Miranda rights. Id. at 35. He testified that there was a phone that was retrieved from Mr. Perine at the time he was placed in custody, which was on the ground after he was detained but was not with him when he was placed into the vehicle. Id. at 30. This phone was described as being taken from Mr. Perine incident to arrest. Id. at 31. In the audio from the lapel video, an officer points to some items on the ground after Mr. Perine is handcuffed and asked, "that's your phone?" Gov. Ex. 5. After Mr. Perine answered in the affirmative, the officer again pointed and asked, "that is your phone?" Id. Officer Bludworth then asked Mr. Perine about the items on the ground: "is this all your stuff?" Id. The Court notes that due to the lapel video beginning mid-interaction, the Court is unable to assess how or why the phone got to be on the ground in the first place.

         Officer Bludworth testified that Mr. Perine was not under arrest at the time that he contacted him but rather was being detained for the purpose of "furthering the investigation of the robbery." Doc. 104 at 37. Mr. Perine was not Mirandized until he arrived at the main police station later on. Id. at 54. Detective Myers testified that Mr. Perine never provided a statement to law enforcement, even after he was read his Miranda rights. Id. at 58-59.

         Detective Myers testified that several weeks prior to this incident, she was aware of a string of cell phone store robberies in which iPads and iPhones were taken. Id. at 43-44. She stated that they had a general description of "two older black males" who were tying victims up at the scene and leaving with merchandise, but also had descriptions by the victims as well as surveillance videos for most of the robberies that had occurred. Id. at 44. On November 18, 2015, she and her sergeant were contacted regarding the Sprint store robbery because the field unit wanted to inform them of a robbery matching a description of a robbery that had occurred several weeks prior. Id. Before arriving at the scene, she was able to review a portion of the surveillance video from the back room of the Sprint store, which depicted the offenders removing merchandise from the shelves and tying up the victims, and shows one offender inadvertently discharging his gun into the backside of the other. Id. at 45-46. She testified that the individuals in this surveillance video matched the descriptions and resembled the suspects from some of the previous robberies. Id. at 48. At that point, she responded to the scene where Mr. Perine had been detained, near Babies R Us. Id.

         Shortly after Detective Myers arrived on scene, the female victim from the Sprint store was transported to their location for a field identification procedure. Id. at 49. Detective Myers testified that at that time, Mr. Perine was wearing the same distinctive shirt and necklace that he was wearing in the surveillance video, and that his appearance at that time did not differ in any way from his appearance in the video. Id.

         Prior to being transported to the scene, the victim described the suspects' appearance to law enforcement. Over the initial 9-1-1 call, she described the suspects as two black males, both with guns. Gov. Ex. 7. She described one suspect in his late 40's, approximately 6'2", wearing a blue and blacked striped sweater and black jeans, with prescription tinted glasses with white on the sides. Id. She also relayed that the younger suspect shot the older one in the back. Id. Sometime after the officers arrived at the scene, Officer Marquez was asked to transport the victim witness to the Babies R Us located on Hotel Circle. Doc. 104 at 63. The officers on site there wanted to determine whether the victim could identify the male who had been detained. Id.

         Officer Marquez testified that he transported the witness to that location, parked to the west of Babies R Us, and directed the witness that the detained person may or may not be the alleged offender. Id. at 64. After they arrived, she positively identified the detained male as the same person involved in the robbery. Id. Officer Marquez testified that he did not provide any other instructions and did not in any way indicate that it was the person who had committed the robbery. Id. He estimated that they got as close as 15 to 20 feet from Mr. Perine, that the victim's identification was almost immediate, that she seemed very certain about her identification, and that there was no hesitation. Id. at 64-65. The Court was not provided a recording of the victim's statement at the time of her identification of Mr. Perine. Officer Marquez did not obtain a written statement from the victim at that time and does not recall otherwise noting her exact words anywhere. Id. at 67, 69. He testified that he was trained in methods of identifying suspects and that he did not conduct a "photographic six pack," but that he was not the primary officer so he was not in charge of the investigation. Id. at 67-68. He also testified that he and the witness did not have a photograph available for viewing prior to the field identification, but they were listening to the radio call. Id. at 68.

         Prior to the victim arriving at the scene, Officer Bludworth was asked over the radio to bring Mr. Perine out of the vehicle so that he could be identified. Id. at 27. At 12:01:59 and again at 12:06:24, it was confirmed over the CAD that there was a positive identification of the suspect. Gov. Ex. 2 at 12, 13. Officer Marquez testified that Mr. Perine was surrounded by several officers when they drove by, and that the suspect is usually positioned by the officers so that they are facing the witness and the witness can have a clear visual. Doc. 104 at 70. Detective Myers testified that Mr. Perine was standing by the patrol vehicle when the ...

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