United States v. Perez

599 F.Supp.3d 1

UNITED STATES of America,

v.Gilbert PEREZ, Defendant.

Docket No. 2:20-cr-00039-NT-1

United States District Court, D. Maine.

Signed April 21, 2022

Nicholas M. Scott, Donald E. Clark, Assistant US Attorneys, U.S. Attorney's Office District of Maine, Portland, ME, for United States of America.

ORDER ON DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL

Nancy Torresen, United States District Judge

Before me is the Defendant's motion seeking to remain on bond while he appeals his conviction ("Def.’s Mot. "). For the reasons stated below, the motion is DENIED .

BACKGROUND

On August 30, 2019, Sergeant Jason Conant and Trooper Ryan Dolan of the Massachusetts State Police North Shore Gang Task Force (the "officers ") were in the midst of a drug investigation when they encountered Defendant Gilbert Perez, whom they suspected of participating in drug activity. Decision and Order on Def.’s Mot. to Suppress Evid. 1–5 ("Order ") (ECF No. 136 ). Mr. Perez attempted to run from the officers but tripped and fell. Order 3–4. Sergeant Conant then caught up with Mr. Perez, held him on the ground, face down, and pulled a backpack off of Mr. Perez's person. Order 4. Trooper Dolan handcuffed Mr. Perez and sat him up on the pavement. Order 4. Sergeant Conant carried the backpack out of reaching distance of Mr. Perez and opened up the backpack on either the hood or the roof of Trooper Dolan's car. Order 4. Inside the backpack, Sergeant Conan found fentanyl and cocaine. Order 4. The officers then arrested Mr. Perez. Order 5.¹

On March 13, 2020, Mr. Perez was charged in a one-count Indictment with conspiracy to distribute fentanyl and cocaine. Indictment (ECF No. 42 ). The Defendant subsequently filed a motion to suppress the drugs that were found in the backpack, arguing that the officers lacked probable cause to arrest Mr. Perez or to search the backpack. Def.’s Mot. to Suppress Evidence 4–6 (ECF No. 68 ). The Government defended the officers’ actions on the grounds that they had conducted a Terry stop supported by reasonable suspicion and that they later developed probable cause to search the backpack. Gov't’s Resp. in Opp'n to Def.’s Mot. to Suppress 10–16 (ECF No. 79 ). The parties later filed supplemental briefing, which sharpened the relevant issues. In that briefing, the Government primarily justified the search of the backpack on the grounds that probable cause existed to arrest Mr. Perez and that the search of the backpack was conducted as part of a search incident to Mr. Perez's arrest. Gov't’s Post Hearing Br. in Opp'n to Def.’s Mot. to Suppress ("Gov't’s Post-Hearing Br. ") 8–29 (ECF No. 128 ). In particular, the Government relied on a First Circuit case from 1975— United States v. Eatherton —that had allowed the search of a briefcase in a case with analogous facts. Gov't’s Post-Hearing Br. 16–17 (citing 519 F.2d 603 (1st Cir. 1975) ). The Government acknowledged that, more recently, the Supreme Court decided Arizona v. Gant , 556 U.S. 332, 343, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), which some courts have interpreted to call into doubt the legality of the search of a container that has been removed from an arrestee's person, as in Eatherton and as in the case of Mr. Perez. Gov't’s Post-Hearing Br. 18–20. But in addition to its argument that Gant did not upend the vitality of Eatherton (and that the cases in which courts have drawn contrary conclusions were wrongly decided), the Government has also argued that the officers relied in good faith on Eatherton as binding circuit precedent, which means that the evidence derived from the backpack should not be excluded even if Gant dictates that it was illegally obtained. Gov't’s Post-Hearing Br. 17–20, 29–31.

In response, the Defendant argued that there was no probable cause to justify his arrest and that, even if there was, the search of the backpack was not a valid search incident to arrest. Def.’s Post-Hearing Mem. in Supp. of Suppression ("Def.’s Post-Hearing Br. ") 6–20. (ECF No. 134 ). In particular, it appears that the Defendant argued that Eatherton is no longer good law and that Gant instead controls. Def.’s Post-Hearing Br. 15–19. The Defendant also argued that the officers could not have been acting in reasonable reliance on Eatherton because of differences in Massachusetts law, and thus that the good faith exception did not come into play. Def.’s Post-Hearing Br. 20–21.

Judge Hornby denied the Defendant's motion to suppress, finding, as relevant here, that probable cause existed to arrest Mr. Perez and that the officers lawfully search the backpack incident to that lawful arrest. Order 5–9. With regard to that second holding, Judge Hornby determined that Eatherton remained good law and that it was dispositive. Order 7–9. While noting that it may well be that Gant calls into question Eatherton and thus that the search of Mr. Perez's backpack was unlawful, it was "for the First Circuit to decide" whether Gant "cast Eatherton ‘into disrepute.’ " Order 9. Having already found that the evidence should not be suppressed, Judge Hornby did not reach the issue of the applicability of the good faith exception.

On October 28, 2021, Mr. Perez pleaded guilty to the Indictment, although, in doing so, he reserved his right to appeal the denial of his suppression motion. Conditional Plea (ECF No. 156 ); Minute Entry (ECF No. 157 ). On February 17, 2022, Judge Hornby sentenced Mr. Perez to sixty months of imprisonment but allowed Mr. Perez to self-report. Minute Entry (ECF No. 198 ). The Defendant subsequently filed the instant motion to remain on bond during the pendency of his appeal. Def.’s Mot. (ECF No. 207 ).

STANDARD OF REVIEW

A defendant who has been convicted and sentenced to a term of imprisonment must be detained pending appeal unless four judicial findings are made: (1) that there is clear and convincing evidence that the defendant "is not likely to flee"; (2) that there is clear and convincing evidence that the defendant "is not likely to ... pose a danger to the safety of any other person or the community if released"; (3) "that the appeal is not for the purpose of delay"; and (4) "that the appeal ... raises a substantial question of law or fact likely to result in" (as relevant here) reversal. 18 U.S.C. § 3143(b)(1). In particular cases—that is, in those cases where there is a presumption that detention is appropriate—a fifth finding is required: that "it is clearly shown that there are exceptional reasons why ... detention would not be appropriate." 18 U.S.C. §§ 3145(c), 3143(b)(2), 3142(e)(2), (f)(1)(C). This is one of those cases.

As I explain in greater detail below, the most salient requirement here is the fourth one. That requirement itself has two prongs—the substantiality prong and the likelihood prong. United States v. Zimny , 857 F.3d 97, 99 (1st Cir. 2017). The substantiality prong requires that the appeal raise a substantial question of law or fact, meaning that the case involves "a ‘close’ question or one that very well could be decided the other way." Id. at 100 (quoting United States v. Bayko , 774 F.2d 516, 523 (1st Cir. 1985) ). "[T]he likelihood prong proceeds on the assumption that the substantial question of law or fact ‘is determined favorably to [the] defendant on appeal,’ " id. (quoting Bayko , 774 F.2d at 522 ), and requires that the result "not be harmless or unprejudicial," Bayko , 774 F.2d at 523.

ANALYSIS

The Government does not dispute the first, second, third, or fifth requirements, Gov't’s Obj. to Def.’s Mot. for Release Pending Appeal ("Gov't’s Opp'n ") 4 (ECF No. 218 ), and I find that those requirements have been met. The only thing left for me to decide, then, is whether the Defendant raises a substantial question of law² that, if decided in his favor, would not be harmless or unprejudicial.

I. The Substantiality Prong

The "substantial question" that the Defendant identifies is the question of whether the search of Mr. Perez's backpack was a valid search incident to arrest. Def.’s Mot. 4–7. What this comes down to, really, is whether Eatherton remains good law in light of Gant . Eatherton upheld as a search incident to arrest the search of a briefcase that the defendant had dropped immediately prior to being arrested at a point shortly after the defendant had been secured inside of a law enforcement vehicle. 519 F.2d at 609–10. Gant , meanwhile, held that the search-incident-to-arrest requirement encompasses only "the arrestee's person and the area ‘within his immediate control’ ... mean[ing] ‘the area from within which he might gain possession of a weapon or destructible evidence.’ " 556 U.S. at 339, 129 S.Ct. 1710 (quoting Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ). But because Gant arose in the context of the search of a vehicle (after the arrest of the driver), see id. at 335–36, 129 S.Ct. 1710, it is not necessarily obvious that Gant extends to a search incident to arrest outside of the vehicle context, as in the cases of Eatherton and of Mr. Perez.

The Government contends that Gant did not disrupt the holding of Eatherton and some older Supreme Court cases, which "continue to allow the warrantless searches of containers found on the person of an arrestee incident to their arrest and within a reasonable time thereafter." Gov't’s Opp'n 6–7.³ As a result, the Government contends that the question of the lawfulness of the search of Mr. Perez's backpack is not a substantial one. Gov't’s Opp'n 6–7.

I disagree that this is not a substantial question of law. Judge Hornby rightly acknowledged that there is reason to question whether Eatherton remains good law in light of Gant . Order 8–9. Rather, his only hesitation was whether he, as a district court judge, should be the one to make that call. Order 8–9. He concluded that he should not. But the First Circuit is, of course, differently situated. And on appeal, the First Circuit may well find that Gant undermines the continuing vitality of Eatherton...