United States v. Purvis

663 F.Supp.3d 1233

UNITED STATES of America, Plaintiff, v. Joe PURVIS, Defendant.

CR 20-01571-DHU

United States District Court, D. New Mexico

Filed March 23, 2023

Eva Mae Fontanez, Niki Tapia-Brito, Samuel A. Hurtado, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Marshall J. Ray, Law Offices of Marshall J. Ray, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

David H. Urias, UNITED STATES DISTRICT JUDGE

On August 11, 2020, Defendant Joe Purvis was charged in a one-count indictment with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). See Doc. 1. On March 18, 2022, Mr. Purvis moved to suppress the evidence against him, arguing that law enforcement officers first unlawfully detained him and then unlawfully searched him and his vehicle. The Court held an evidentiary hearing on the motion on May 31, 2022, and thereafter requested additional briefing. After considering the motion, briefs and supplemental briefs, evidence from the hearing, and relevant law, the Court concludes that Defendant's Opposed Motion to Suppress Evidence Based on Constitutional Violations (Doc. 51) will be GRANTED.

I.FACTUAL FINDINGS

The Court makes the following findings of fact ("FOF"), as supported by the record, in accordance with Federal Rule of Criminal Procedure 12(d):

1. On the morning of July 20, 2020, officers from the Albuquerque Police Department ("APD") were dispatched to the Walmart located at 301 San Mateo Blvd. SE, Albuquerque, New Mexico responding to a call from Walmart security reporting an unconscious male subject in a white Honda Accord parked in row 7. See Doc. 51-1 at 1 (Report of Investigation).

2. The initial dispatch reported a "male passed out in [the] veh[icle]," but did not report any criminal conduct. See Doc. 58-1 (7/20/20 Police CAD Report).

3. A recording of the call made by a Walmart security guard to the police indicated that the male sleeping in the car had been there for some time and had indicated to someone he was waiting for his niece. See Doc. 51, Ex. A (Audio of call to Albuquerque Police Department).

4. There is no dispute that the entirety of the incident described below regarding the detention and search of Mr. Purvis took place on private property.

5. After receiving the information from dispatch, APD Officers Scott Golson and John Cervantes arrived on the scene and located the vehicle parked in the Walmart parking lot. See Hrg. Tr. at 15:14-18 (Golson).¹

6. Officer Golson was receiving "on the job training" at the time of the incident and Officer Cervantes was his training officer. See id. at 15:5-11.

7. When the Officers approached Mr. Purvis' vehicle, they observed Defendant Joe Purvis asleep in the driver's seat with his windows rolled down and the vehicle idling. Mr. Purvis was not reclined in his seat, but rather sitting straight up, but unconscious. See Golson Lapel Video at 0:45.

8. As officers approached the vehicle, Officer Golson announced his presence by calling out "Sir", but the Defendant did not respond. Id. at 0:46.

9. While standing next to the vehicle, Officer Cervantes observed a pellet rifle in the back seat of the car. Officer Cervantes reached through the open back window of the car and removed the pellet rifle from the vehicle. See id. at 0:56-1:06.

10. After the pellet rifle was removed, Officer Golson, while standing next to the parked car, observed what appeared to be a firearm or a toy gun sitting on the driver's side floorboard between Mr. Purvis' legs. See id. at 1:14-17.²

11. Officer Golson alerted Officer Cervantes of its presence, at which time Officer Cervantes drew his firearm from its holster. Officer Cervantes held his firearm in a manner that kept the muzzle of the gun pointing downward as he stood near the driver's side of the vehicle. See id.

12. At no time did Officer Cervantes aim his firearm in the direction of Mr. Purvis.

13. Officer Golson called out, "Sir," again and Mr. Purvis began to wake up and move around, appearing disoriented and confused. See id. at 1:18-26.

14. Officer Golson promptly gave Mr. Purvis verbal commands to keep his hands on top of the steering wheel. See id.

15. When Mr. Purvis did not promptly comply, Officer Cervantes directed Officer Golson to grab Mr. Purvis' hands. See id. at 1:24.

16. Officer Golson then reached into the vehicle and grabbed Mr. Purvis' hands, at which time Mr. Purvis cried out that the officer was hurting his hands. See id. at 1:24-30.

17. Officer Cervantes and Officer Golson told Mr. Purvis that there was a gun on his floorboard and directed him to keep his hands up and then to keep his hands out. See id. at 1:30-37.

18. Mr. Purvis, appearing disoriented, continued to state loudly that Officer Golson was hurting his hands and soon was able to pull his hands aways from the officer. See id. at 1:37.

19. The officers continued to explain to Mr. Purvis that there was a gun underneath him and that they needed him to put his hands out the window. See id. at 1:37-48.

20. Mr. Purvis then began to move about in the driver's seat and continued to complain that the officer was hurting his hands. See id.

21. Officer Cervantes' tone then changed and he sternly commanded Mr. Purvis to put his hands on the outside of the door of the car. See id. at 1:49.

22. At that time, Mr. Purvis stated that he would get out of the car and Officer Golson stated, "Step out. Step out." Id. at 1:50-52.

23. Officer Golson then opened the car door and again directed Mr. Purvis to step out, at which time Mr. Purvis responded, "You see how simple that was?" Id. at 1:54-2:02.

24. Officer Golson responded, "Cool, step out," while Officer Cervantes shouted to Mr. Purvis, "Do not reach for anything, you understand?" Id.

25. Mr. Purvis responded that he was not reaching for anything, and Officer Golson again stated, "Cool, step out." Id.

26. At this time, Mr. Purvis began to move as if he was attempting to get out of the driver's seat without using his hands, but then suddenly shifted his weight back toward the inside of the car. See id. at 2:17-20.

27. Officer Golson and Officer Cervantes yelled out, "Do not reach for anything!" Mr. Purvis again stated that he was not reaching for anything. The officers responded, "Yes, you are!" Id. at 2:19-20.

28. One of the officers then told the other, "Get him out of the car," while the other again told Mr. Purvis to step out. Id. at 2:20-21.

29. Mr. Purvis stepped out of the vehicle and stated, "Hold on." Id. at 2:21-32.

30. As Mr. Purvis stood outside the vehicle, Officer Golson directed him to put his hands behind his back, informing Mr. Purvis that he was "just being detained." Id. at 2:36-49.

31. Officer Golson then placed handcuffs on Defendant Purvis. See id.

32. Officer Golson then asked Defendant, "What's going on man?" When Mr. Purvis did not respond, Officer Golson again asked him, "What's going on?" two more times. Again, Mr. Purvis did not respond. Id. at 2:49-3:06.

33. Officer Golson then asked Mr. Purvis if he had an "ID" on him and, as he asked the question, he reached into Mr. Purvis' rear pants pocket, found Mr. Purvis' wallet, and removed it. See id. at 3:08-23.

34. Within seconds of Officer Golson searching Mr. Purvis' pocket and pulling out Mr. Purvis' wallet, Officer Cervantes held his hand out and stated, "I'll run him real quick." Cervantes Lapel Video at 3:25.³

35. Officer Golson then pulled Mr. Purvis' driver's license from the wallet and handed it to Officer Cervantes, who walked toward his patrol car to run Mr. Purvis' information. See id. at 3:25-37.⁴

36. The lapel video recording shows that Officer Golson did not look at any other contents of the wallet, including possible medical-related information. See id.

37. At no time did Mr. Purvis provide Officer Golson with consent to retrieve the wallet from his pants or to extract the driver's license from his wallet.

38. The officers did not return the license to Mr. Purvis after obtaining his name.⁵

39. After giving Mr. Purvis' driver's license to Officer Cervantes, Officer Golson again asked, "What's going on dude- you Joe?" Golson Lapel Video at 3:25-31.

40. Mr. Purvis responded, "I'm thirsty. Can I have something to drink?" Id.

41. Officer Golson responded, "I don't have anything for you to drink." Id. at 3:34.

42. Officer Golson then called out again, "Joe?" At that time, Mr. Purvis began to sway and lose his balance, falling back onto the side of his vehicle and onto his knees. Id. at 3:38-48.

43. Officer Golson asked, "Are you having a medical?" Mr. Purvis responded, "I need something to drink, I'm thirsty." Id. at 3:49-52. 44. Officer Golson then stated, "Ok, but why are you falling down, man?" Id. at 3:54-56.

45. Mr. Purvis repeated, "May I have something to drink, I'm thirsty." Id. at 4:00-03.

46. The officer again responded, "I don't have anything for you to drink." Id. at 4:04-06.

47. Mr. Purvis, still on his knees, began to sway and again stated he was thirsty. See id. at 4:10-11.

48. At this point, at least four paramedics with the Albuquerque Fire Department ("AFD paramedics") arrived and Officer Golson told them, "He says he's thirsty, but he is falling down and shaking." Id. at 4:11-12.⁶

49. One of the AFD paramedics asked Mr. Purvis, "What did you take friend?" Id. at 4:14.

50. At that time, Mr. Purvis struggled to his feet and responded, "Corona virus made me . . . can I have something to drink?" He then started shouting, "I am thirsty! I am thirsty! Can I have something to drink?" Id. at 4:15-25.

51. One of the AFD paramedics stated, "You need to calm down," and another told Mr. Purvis, "We have no water friend." Id. at 4:25-27.

52. Mr. Purvis continued to stand, swaying in an awkward manner. See id.

53. An AFD paramedic approached him and asked, "Hey brother, what's your name? What's your name, man?" Id. at 4:35.

54. As the AFD paramedic asked this question, Officer Golson, again without...