United States District Court, D. New Mexico
Rivas Attorney for Mr. Ferine
Presiliano Torrez, Timothy Trembley Assistant United States
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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