United States v. Perez

Decision Date14 July 2021
Docket NumberCRIM. NO. 2:20-CR-39-DBH-01
PartiesUNITED STATES OF AMERICA, v. GILBERT PEREZ, DEFENDANT
CourtU.S. District Court — District of Maine

UNITED STATES OF AMERICA,
v.
GILBERT PEREZ, DEFENDANT

CRIM. NO. 2:20-CR-39-DBH-01

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

July 14, 2021


DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

In this drug trafficking prosecution, the defendant Gilbert Perez has moved to suppress all the evidence resulting from his encounter with Massachusetts State Police on August 30, 2019. After a testimonial hearing on June 17, 2021, and later briefing on the motion, these are my findings of fact and conclusions of law. Only the troopers testified at the hearing, not the defendant. There are no disputed facts, only minor inconsistencies in the descriptions of what occurred.

FINDINGS OF FACT

1. On the summer evening of Friday, August 30, 2019, around 6:00 p.m. it was still light in Lawrence, Massachusetts. Members of the Massachusetts State Police North Shore Gang Task Force were doing a routine patrol in the area bordering Methuen. They had no target and no particular information. They were simply looking to interdict any drug or gang related information they came across.

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2. What they did have was their knowledge gained from experience: that Lawrence was a hub for drug distribution into northern New England, including Maine and New Hampshire; that the area they were patrolling was frequently the location of drug deals and was very close to I-495, an interstate route to those states; and that drug deals there often took place in taxis so that law enforcement could not see them and could not track the registration of the participants' vehicles.1

3. Around 6:10 p.m., Sergeant Jason Conant saw a dark-colored pickup truck with Maine license plates pull into a McDonald's parking lot. He learned by computer that the truck was registered to someone who lived in Acton, Maine, about 1-1/2 hours away. The driver was a white male; the passenger female.

4. Sergeant Conant saw the driver get out of the truck while wearing a distinctive blaze orange cap, don a backpack, and walk around the rear of the truck to talk to the passenger through the passenger window. Then the driver proceeded to walk, not into McDonald's, but away from the restaurant to a nearby bordering residential area. As he walked, he was talking on his cellphone.

5. Sergeant Conant radioed this information to the other two members of his unit but soon lost sight of the male with the blaze orange hat.

6. Within 3 to 5 minutes, Trooper Shawn McIntyre saw the white male with the blaze orange hat getting out of a taxi on Montgomery Street a couple of blocks away which, given the location and the time, he believed reflected a ride

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of less than a block. The male was headed back toward the truck. McIntyre radioed that information to his colleagues and Sergeant Conant instructed him to stop the cab and investigate further. McIntyre did so.

7. Trooper McIntyre saw large quantities of cash, appearing to be in the thousands of dollars, on the floor of the cab in front of a passenger. The passenger denied the cash belonged to him. The cab driver told McIntyre the man in the blaze orange cap had flagged him down. Trooper McIntyre communicated all this information to his colleagues and instructed Trooper Ryan Dolan to go to Sergeant Conant to assist him because he was concerned that a large amount of drugs had been exchanged for the large amount of cash.

8. Soon Sergeant Conant saw the man in the blaze orange cap returning to the vicinity of his truck. Given the location, the Maine-registered vehicle, the driver's behavior, the use of the cellphone, the use of the cab, and the large quantity of cash in the cab of which the passenger denied knowledge, Sergeant Conant believed a drug deal had just occurred.

9. Sergeant Conant pulled his vehicle into a parking lot parking spot as the man in the blaze orange cap crossed the front of the vehicle, and the Sergeant got out. Although he was in plain clothes, he had a police identification medallion around his neck. As soon as Sergeant Conant got out of his vehicle, the man in the blaze orange cap started to run away even as Sergeant Conant was yelling "state police."2

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10. After about twenty yards the man in the blaze orange cap tripped and fell to the ground, and his cellphone skittered away. Sergeant Conant ran up to him and held him on the ground, face down, with one hand on the backpack and one hand on the man's shoulder. Trooper Dolan pulled up, got out of his vehicle and, as Sergeant Conant ripped the backpack off the man, Dolan handcuffed him behind his back, then sat him up on the pavement.

11. Sergeant Conant began to open the backpack on the hood or roof of Dolan's vehicle and, as he did so, the man told him "the stuff's not his, the stuff in the bag isn't his, he was kind of forced to come down and—and pick it up." No one was questioning him at the time. The man was not within reaching distance of the backpack.

12. Sergeant Conant discovered a quantity of illegal drugs (fentanyl and cocaine) in the backpack.

13. Eight or nine minutes had transpired from the time Sergeant Conant lost sight of the man until he apprehended him.

14. Law enforcement also searched the man. The parties stipulated that law enforcement discovered and seized currency and a cellphone as a result. Stipulation (ECF No. 125). They also seized the cellphone that the man had dropped earlier. Id.

15. Trooper Dolan saw the female passenger leave the Maine truck and he followed her into McDonald's. He persuaded her to exit the restaurant and brought her over to where the man was handcuffed.

16. Dolan then administered Miranda warnings to both of them. The man continued to talk, without being asked a question, saying in substance he

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was made to do it and was just going to pick something up for a friend, whom he named, and that the friend was the one they really wanted. The woman warned him to stop talking until he had a lawyer.

17. The troopers then formally arrested the man, but not the woman. The man turned out to be Gilbert Perez, the defendant. The police proceeded to search the truck. The parties stipulated that they discovered and seized currency in the truck. (ECF No. 125).

18. The officers had no particular reason to believe that Perez was armed, only their general knowledge that drug transactions were often accompanied by weapons.

19. There was no evidence regarding the female passenger's right, ability, or intent to drive the Maine-registered truck.

CONCLUSIONS OF LAW

A. Probable Cause for the Arrest

The police had probable cause to arrest Perez when they handcuffed him, and I treat them as having effectively arrested him then. Perez had arrived in a Maine-registered truck in an area where drug trafficking occurred, close to I-495 and access to Maine. He parked his Maine truck next to a McDonald's but did not go in, instead donning a backpack and walking away while talking on his cellphone. He quickly got into and out of a taxicab...

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