State of Maine v. Perkins

STATE OF MAINE UNIFIED CRIMINAL COURT
KENNEBEC, SS. AUGUSTA
DOCKET NOS. CR-2018-02481 & 21277

STATE OF MAINE

V. ORDER ON MOTION TO SUPPRESS

ROBERT A. PERKINS

INTRODUCTION
The matter before the court is the Defendant's (Perkins) motion to suppress
any and all statement he made to law enforcement officers in recorded interviews
conducted on June 5, 2018 and November 29, 2018. He also seeks to suppress any
tangible evidence seized as a result of those statements as "fruit of the poisonous
tree." The court held an evidentiary hearing on August 5, 2019, at which it received
the testimony of Maine State Police Detective Scott Quintero. The court also
admitted into evidence, without objection, Joint Exhibits 1-3. Exhibit 3 is a thumb
drive provided to the court by Defense Counsel, which contains both recorded
interviews. Exhibits 1 and 2 are the transcriptions of the interviews.
The court has listened to the complete recordings of both interviews, with the
assistance of the transcripts as an aid. In this regard, the court found the written
transcripts to be quite helpful while listening to the actual recordings. Nevertheless,
not surprisingly the transcripts did contain the occasional typographical error, and
the court is aware that it is the recordings themselves that constitute evidence, not
the transcripts.
Based upon the evidence presented at the hearing, including the testimony of
Det. Quintero and the recorded interviews, the court makes the following findings
of fact.
FACTS
On June 8, 2018, Detectives Quintero and Sarah Ferland of the Maine State
Police arrived at the home of Mr. Perkins and his wife Jessica. Perkins answered
the knock on the door. At that time, apparently, Perkins was the only one home,
although Jessica would arrive home somewhat later. Det. Quintero identified
himself and asked Perkins: "Can I talk to you for a minute, bud?" Perkins said:
"Yeah," and accompanied Quintero to his cruiser, where he was introduced to Det.
Ferland. Quintero sat in the driver's seat; Perkins sat in the front passenger seat, and
Ferland sat in the rear.
Almost immediately, Quintero told Perkins: "If you don't feel that you want
to talk to me, that's the door, do you see where the handle [is] right there." Perkins
told Quintero: "I know how to work it." Quintero emphasized: "You go ahead and
do that whenever you want."
Quintero spoke in general terms for a few minutes and then asked Perkins if
he had any idea as to why the State Police were there wanting to talk with him.
Perkins replied: "I've got no clue." Quintero eventually told Perkins that allegations
had been made against him. Perkins indicated that allegations had been made against

him in the past that he thought had been resolved. 1 Quintero repeatedly and

persistently encouraged Perkins to be truthful and he also emphasized his
(Quintero's) ability to tell when Perkins was not being truthful.

' Perkins referred to the fact that no young children were allowed to be at his residence
and that this requirement was self-imposed by he and his wife after earlier allegations of
misconduct had been raised.

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Gradually, during the course of the interview, which lasted slightly more than
2 Y2 hours, Perkins made a number of incriminating statements and admissions
regarding inappropriate sexual conduct with young female children and one teenage
male. With respect to the male accuser, Perkins adamantly refused to agree with
Quintero' s assertion that he (Perkins) was being untruthful as to the full extent of the
sexual contact.
The interview followed a pattern. Quintero strongly urged Perkins to tell the
truth and get the secrets out and lift the weight off his shoulders; Perkins initially
denied that anything inappropriate happened; Quintero told Perkins that he knew he
was lying and that more had happened that Perkins was concealing; Perkins
eventually admitted more and more as Quintero pressed him on being totally honest.
Quintero then brought up another accuser's name and the same pattern was
followed, i.e., denial; challenge to tell the truth; more denial; further challenge that
he (Perkins) was lying; gradual admission to more detailed information about the
inappropriate sexual behavior.
Relatively early on in the interview, the Defendant's wife came home. Later
it was learned that she was injuring herself by "cutting" her arm and face. The
detective called 9-1-1 and had ambulance personnel come to the Perkins residence
to provide medical treatment to her.
During this interview, as Quintero was trying to persuade or "cajole" Perkins
to be fully honest with him, the detective told Perkins that he did not know what
would happen in the case. One of the factors, however, was whether the suspect had
lied or was truthful. By way of example: " ... what I don't know and what will
determine how things go from here is what you tell me, okay?" Exhibit 1 at 10. " .
. . the court process can get going right out of the gate, or it may not go at all." Id.
at 11. "We haven't even decided what action we're going to take right now, all right,
because there may be explanations, you know?" Id at 12. " ... I'm giving you an

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opportunity to explain to me the why it happened and how it happened because it
may make a total world of difference ...." Id. at 17. " ... but right now is an

opportunity for you to talk to me and maybe we can head this off at the pass." 2 Id.

"I'm going to give you this life line before I run out of rope with you." Id. at 19.
"There's a window here." Id. "You, though, are the final piece which dictates which
way the wind blows; do we pursue this further?" Id. at 92.
As the interview of June 5, 2018 was winding down, Quintero and Ferland
asked Perkins for his consent for them to take his personal computer to examine it
for child pornography. While concerned about how long he would be without his
computer, Perkins eventually agreed to have the detectives take it.
Throughout the interview, Quintero told Perkins on many occasions that he
was free to leave and that if he did not want to talk he could just go. See Exhibit 1
at 3, 12, 23, 45, 46, 52, 53, 54, 55, 63, 72, 75, 90, 91, 92, 93, 97, 99. No Miranda
warnings/rights were given to Perkins during the June 5, 2018 interview.
Quintero and Ferland returned to speak with Perkins again on November 29,
2018. This interview lasted approximately 2 hours and 40 minutes, at the end of
which Perkins was arrested. This interview began with Quintero asking Perkins:
"Can we talk a little bit?" Perkins said: "Yeah." The interview was conducted in
Quintero's cruiser again. Within minutes, Quintero told Perkins: "I'm telling you
right now you're not under arrest." A few moments later, Quintero said: " ... I want
to be fair to you. I'll read you - I'm going to tell you Miranda rights, okay?"
Immediately thereafter, Quintero added: "You're not under arrest or anything like
that." In reciting the Miranda rights/warnings, the following colloquy took place:

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The transcript reads: "maybe we can head this off with a pass." Id. at 17. After
listening to the actual recording, the court is satisfied that this transcription is not
accurate. What Quintero said was "maybe we can head this off at the pass."

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DETECTIVE QUINTERO: You have the right to remain silent. Do
you understand that?

MR. PERKINS: Yeah. I know all of them.

DETECTIVE QUINTERO: You do?

MR. PERKINS: Uh-huh.

DETECTIVE QUINTERO: Yeah. We talked about that before, didn't
we?

MR. PERKINS: Uh-huh.

DETECTIVE QUINTERO: Anyway, I'll go over them again. You got
a right to remain silent. Anything you say can and will be used against
you in a court of law.

MR. PERKINS: Uh-huh.

DETECTIVE PERKINS: You have the right to an attorney. If you
can't afford an attorney, the court will appoint one for you.

MR. PERKINS: Uh-huh.

DETECTIVE QUINTERO: You have the right to stop answering
questions now or at any time until you talk to an attorney and have an
attorney present with you during questioning.

MR. PERKINS: Okay.

DETECTIVE QUINTERO: You understand all that?

MR. PERKINS: Uh-huh.

DETECTIVE QUINTERO: What does that mean to you, basically?
We' re going to talk voluntary? Is that - ­

MR. PERKINS: Yeah.
Exhibit 2 at 6-7.

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This second interview followed the same pattern as the first one. A short time
into the interview, Quintero brought up the subject of the teenage male who had
made accusations against Perkins and who was discussed during the interview of
June 5, 2018. When the name of that teenager was mentioned, Perkins said: "I will
be honest. I truly don't remember." Exhibit 2 at 17. Quintero was not buying it
and said: "I know you remember." Id. When Perkins hesitated and started to say:
"I'm -- I'm trying to-" the following exchange took place:
DETECTIVE QUINTERO: Do you want me to help you with that?

MR. PERKINS: Yeah, I actually would.

DETECTIVE QUINTERO: The thing that happened that we need to
talk about is that - the occasion in which you touched his penis.

MR. PERKINS: Which was when? I never touched his penis.

DETECTIVE QUINTERO: No, no. No, no, no .

MR. PERKINS: NOT ­

DETECTIVE QUINTERO: If you don't remember, you already told
me last time you touched his penis, okay? So it just was in a little more
detail. I've had many, many meetings on this, bud, all right? So at one
point, you end up going down on [him].

MR. PERKINS: What do you mean by going down?

DETECTIVE QUINTERO: Sucking on his dick .

MR. PERKINS: No.

DETECTIVE QUINTERO: Yes.

MR. PERKINS: No, no. I don't care - no, no. I will contact a lawyer.
I have never even seen the kid's dick, never, never. He has never
dropped his pants in front of me. I don't know how you're saying that

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you know he is telling the truth, okay, I really don't. Especially seeing
as he told you, number one, that I was showing him gay porn on my
computer. Did you guys find gay porn on my computer?

DETECTIVE QUINTERO: Calm down. Calm down for a second .
Have I been straight up and fair with you?

MR. PERKINS: Yes, but what I want to know is how ­
Exhibit 2 at 18-19.
Quintero and Perkins continued to talk (with Quintero doing most of the
talking), for the next 10 to 11 minutes. They continued to disagree on this issue,
with Quintero insisting that he knew what had happened and that Perkins was not
being honest, while Perkins just as strongly insisted that what Quintero and the
teenager were saying was absolutely false. The recording, of course, allows the court
to hear the tone and inflection of Perkins' voice. Eventually, however, Perkins
acknowledged that he did touch the teenager's penis by sliding his hand down the
boy's pants. Exhibit 2 at 28-29.
Quintero told Perkins: " ... it went further." Perkins insisted that no oral sex
was involved. Exhibit 2 at 30-31. This back and forth discussion continued for
another 18 minutes or so, until Perkins admitted that he did perform oral sex on the
teenage boy, at first saying just once, but later saying it occurred a "[c]ouple of
times." Exhibit 2 at 44.
About 5 minutes later, Quintero turned to the subject of Perkins and his wife
engaging in inappropriate sexual behavior with the teenager. Exhibit 2 at 48.
Perkins again adamantly denied that such a thing had ever happened. At one point,
Perkins said: "I'll leave now," to which Quintero replied: "You can leave if you
want." Perkins said: "I will, because it's - I've given you as much truth as - more
truth than-" Exhibit 2 at 50. Quintero pointed out that Perkins had lied just minutes
earlier, but Perkins continued to deny that his wife was a part to anything to do with

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the teenager. Perkins, however, did not get out of the cruiser and there is no
indication from the recording that he tried to.
Again, the discussion continued for another 4 or 5 minutes when Perkins said:
"There's nothing more that I can say as far as anything that ever happened between
me, Jess, and [the teenage boy] because nothing ever did. And at this point, I'll get
out and leave." Quintero responded: "Okay. I don't want that to happen, but you
can leave if you want to." Exhibit 2 at 56. The two men continued to talk, however,
and Perkins did not leave the cruiser and end the conversation.
Soon thereafter, Quintero turned to another alleged victim and asked Perkins
about her. Again, Quintero claimed that there was more to what happened than what
Perkins was admitting. Perkins said: "It's okay. I'll sit here and lie to you."
Quintero said: "I'd rather you get out than lie to me." Exhibit 2 at 64. He repeated
that statement moments later. Id. at 65.
Quintero and Perkins continued to talk for another 50 minutes or so until they
got out of the cruiser. It is unclear to the court whether Det. Ferland was in the rear
of the cruiser as she had been on June 5, 2018, and if so for how long, but it does
seem that she was not in the cruiser when Quintero and Perkins got out of it after
about 2 hours. Exhibit 2 at 113. Also, the transcript and the recording of the
interview on November 29, 2018 indicate that the Defendant's wife was again
hurting herself by "cutting" and rescue personnel were called again on this occasion.
Exhibit 2 at 27.
A few minutes after getting out of the cruiser, Det. Ferland informed Perkins
that he was under arrest "at this point." Exhibit 2 at 115. Shortly thereafter, the three
of them got back into the cruiser for the ride to the Kennebec County Jail. Id. at
118. A few minutes after that, Quintero recited the Miranda warnings/rights to
Perkins:

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DETECTIVE QUINTERO: I told you at the outset, but I'll tell you
again, and now that you're under arrest, you have the right to remain
silent. Anything you say can and will be used ­

MR. PERKINS: Yeah.

DETECTIVE QUINTERO: -- against you in a court of law. You have
the right to an attorney. If you can't afford an attorney, the court will
appoint one for you. You have the right to stop answering questions at
any time or stop answering until you can talk to an attorney or have an
attorney present with you during questioning. I know you said you've
heard those before, but you heard them again. You understand them?

MR. PERKINS: Yep.

DETECTIVE QUINTERO: Okay.

MR. PERKINS: So what did they tell Jess?
Exhibit 2 at 120.
Quintero, Ferland and Perkins conversed about Jessica and what she knew or
did not know about what Perkins had allegedly done with underage children.
Ultimately, however, Quintero returned to the topic of "what happened with Jess."
Exhibit 2 at 130. This prompted Perkins to state: "And I keep telling you nothing
ever happened between me, [the teenage boy], and Jess." Id. Perkins remained
adamant on this subject. Quintero said: "But, Bobby, he's -you were having a form
of gay sex with him at that time, so--." Perkins then said: "No. I lied to you because
I was not - and I was just fed up with you forcing me, saying that he was - that he's
not lying because he don't lie, or whatever the hell you were saying. I was fed up,
and I said fine, it happened." Exhibit 2 at 132. Perkins continued to angrily insist
that his wife was not involved in any sexual way with the teenager until Quintero
agreed to drop the subject. Exhibit 2 at 133-134. Finally, they arrived at the jail.
Additional factual findings will be made, as necessary, in the Discussion
section of this Order.

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DISCUSSION
Perkins seeks to suppress his statements of June 5 and November 29, 2018,
on a number of different grounds, which the court will now address.
A. Was the Defendant Subjected to Custodial Interrogation on June 5,
2018?
In State v. Hopkins, 2018 ME 100, 1f 36, 189 A.3d 741, the Law Court
reaffirmed its long-standing analysis of claims that a suspect was subjected to
custodial interrogation. Quoting State v. Perry, 2017 ME 74, 1f 15, 159 A.3d 840,
the Court stated: "When a person has been subjected to an in-custody interrogation
but has not been advised of his Miranda rights, the State may not offer the statements
made during that interrogation against that person in its case-in-chief."
"In order for statements made prior to a Miranda warning to be admissible,
the State must prove by a preponderance of the evidence, that the statements were
made while the person was not in custody, or was not subject to interrogation." State
v. Bragg, 2012 ME. 102, 1f 8, 48 A.3d 769 quoting State v. Bridges, 2003 ME. 103,
1f 23,829 A.2d 247. See also State v. Poblete, 2010 ME. 37, 1f 21,993 A.2d 1104.
The Law Court has stated that the "ultimate inquiry" regarding whether
someone is in custody for Miranda purposes "is whether a reasonable person in the
shoes of [Perkins] would have felt he or she was not at liberty to terminate the
interrogation and leave or if there was a restraint on freedom of movement of the
degree associated with a formal arrest." State v. Prescott, 2012 ME. 96, 1f 10, 48
A.3d218 quoting State v. Poblete, 2010 ME. 37, 1f 22,993 A.3d 1104.
The test is "purely objective" and a variety of factors must be considered in
their "totality, not in isolation." State v. Prescott, 2012 ME. 96, 1f 11; State v. Dion,
2007 ME. 87, 1f 23, 928 A.2d 746. The Law Court has consistently identified the

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following, non-exhaustive list of factors that are to be considered on the custody
issue:
(1) the locale where the defendant made the statements;
(2) the party who initiated the contact;
(3) the existence or non-existence of probable cause to arrest (to the extent
communicated to the defendant);
(4) subjective views, beliefs or intent that the police manifested to the
defendant, to the extent they would affect how a reasonable person in the defendant's
position would perceive his or her freedom to leave;
(5) subjective views or beliefs that the defendant manifested to the police, to
the extent the officer's response would affect how a reasonable person in the
defendant's position would perceive his or her freedom to leave;
(6) the focus of the investigation, as a reasonable person in the defendant's
position would perceive it;
(7) whether the suspect was questioned in familiar surroundings;
(8) the number of law enforcement officers present;
(9) the degree of physical restraint placed upon the suspect; and
(10) the duration and character of the interrogation.
Viewing the factors objectively and in their totality, the court concludes that
the Defendant was not subjected to custodial interrogation within the meaning of
Miranda v. Arizona at any time on June 5, 2018. The factors identified by the Law
Court are not simply a checklist. Rather, they assist the trial court in assessing the
overall setting and circumstances of an interrogation/interview to determine whether
it is custodial in nature.
The interview took place in a police crmser outside of the Defendant's
residence. Nothing was ever said to Perkins that the police had probable cause to
arrest him at that time. Indeed, Quintero repeatedly told Perkins that it was unclear

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and undetermined as to where the matter might lead or what the next step would be.
Importantly, Quintero reminded Perkins on numerous occasions that he was free to
get out of the cruiser and leave and Perkins acknowledged that he knew how to open
the door if he wanted to. Perkins himself never suggested to the officers that he
thought he was not free to leave. There can be little question that Perkins was the
"focus" of the investigation and a reasonable person in his position would certainly
perceive that to be the case. As noted above, the questioning took place in a police
cruiser outside the Defendant's home. Two police officers were present for the
interview, although Quintero did virtually all of the questioning. No physical
restraint was place upon Perkins. Finally, the interview lasted approximately 2 Y2
hours. Detectives Quintero and Ferland were respectful, professional and courteous
at all times. Quintero was persistent in his approach during the interview, al ways
returning to his theme that he (Quintero) knew when Perkins was lying and that
Perkins needed to tell the complete truth. While Quintero was accusatory in the
sense that he challenged Perkins whenever he believed Perkins was lying, his tone
and demeanor was never angry or threatening, and he remained calm and patient.
Viewed in totality, and objectively, the court finds by a preponderance of the
evidence that a reasonable person in the Defendant's position would have
understood and believed that he was not in a custodial situation and that he was free
to terminate the interview and leave.
B. Were the Defendant's Statements on June 5, 2018 Voluntary?
In State v. Hunt, 2016 ME 172, ~ 19, 151 A.3d 911, the Law Court clarified
the "distinction between those statements that must be excluded pursuant to the Fifth
Amendment because they are the product of compulsion, and those statements that
must be excluded because their admission would otherwise create an injustice." The
latter situation employs a due process analysis and seeks to address the question of
whether a defendant's "statements were free and voluntary or whether, considering

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the totality of the circumstances under which the statements were made, their
admission would be fundamentally unfair." Id. The Court reaffirmed its holding in
State v. Mikulewicz, 462 A.2d 497, 500-01 (Me. 1983) that "[a] confession is
voluntary if it results from the free choice of a rational mind, if it is not a product of
coercive police conduct, and if under all of the circumstances its admission would
be fundamentally fair." A number of relevant factors may be considered by the court
in making the voluntariness assessment, including:
the details of the interrogation; duration of the interrogation; location
of the interrogation; whether the interrogation was custodial; the
recitation of Miranda warnings; the number of officers involved; the
persistence of the officers; police trickery; threats, promises or
inducements made to the defendant; and the defendant's age, physical
and mental health, emotional stability, and conduct.
State v. George, 2012 ME 64, ~ 21, 52 A.3d 903.

It is the State's burden to demonstrate that a statement is voluntary beyond a
reasonable doubt. State v. Annis, 2018 ME 15, ~ 13,178 A.3d 467. State v. Collins,
297 A.2d 620, 626-27 (Me. 1972).
The Defendant has argued that Det. Quintero made improper promises to him
as an inducement to get him to talk. Specifically, Perkins maintains that Quintero
essentially promised that the prosecution of the case could potentially be avoided if
Perkins told Quintero the truth about his actions with the minor children.
This case is more like State v. McNaughton, 2017 ME 173, ~~ 36-37, 168 A.3d
807, than those cases where a law enforcement officer made specific promises of
leniency that "jeopardized the voluntary nature of a defendant's statements."
Compare State v. Wiley, 2013 ME 30, ~ 21, 61 A.3d 750; State v. Tardiff, 374 A.2d
598, 600-01 (Me. 1977). Quintero' s statements were not specific and concrete
promises of leniency. Rather, they were generalized exhortations to tell the truth.
Moreover, Quintero accurately told Perkins that it was unknow what would happen

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to the case, as the detectives had more work to do. Quintero, in essence, was urging
Perkins to tell the truth so that his full version of what happened would be part of
the continuing investigation. Quintero was not offering Perkins a chance to avoid
prosecution if he confessed. On the contrary, he was attempting to persuade Perkins
to "head this off at the pass" by telling his truthful and complete explanation up front
at the early stages of the investigation.
Having listened to the recorded interview, the court is satisfied beyond a
reasonable doubt: that the Defendant spoke with the officers as a result of his own
free choice and rational mind; that the police did not engage in any deception or
trickery or other coercive conduct, and; that admission of the Defendant's statements
would not be fundamentally unfair.
Finally, with respect to the June 5, 2018 interview, the court is satisfied by a
preponderance of the evidence that the Defendant's consent for the seizure of his
personal computer was voluntarily and knowingly given. Det. Quintero repeatedly
told Perkins that whether he agreed to surrender the computer to the police at that
time was totally his choice and that he was under no obligation to do so. Exhibit 1 at
95, 96, 97, 99, 100. Perkins and Quintero discussed how quickly the computer would

be returned to the Defendant, but ultimately, Perkins voluntarily agreed to let the
police take the computer without a warrant. Exhibit 1 at 102.
C. Was the Defendant Subjected to Custodial Interrogation on
November 29, 2018?
Utilizing the factors discussed earlier in this Order, the court finds by a
preponderance of the evidence that the Defendant was not subjected to custodial
interrogation on November 29, 2018 until he was placed under arrest by Det.
Ferland. Exhibit 2 at 115. Applying the factors objectively and in their totality, the
court finds that Det. Quintero told Perkins twice that he was not under arrest.
Similarly, on two separate occasions he told Perkins that he was free to get out of

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the cruiser if he wanted to. He told him at least twice that he would just as soon have
Perkins get out of the car rather than lie.
It seems clear that it was the intention of law enforcement to arrest Perkins
that day after the interview with him was completed. The analysis, however, is an
objective one. While Quintero may have subjectively intended and knew that
Perkins would be arrested later that day, the detective did not manifest that intention
in any way to Perkins.
D. Assuming Perkins was Subjected to Custodial Interrogation on
November 29, 2018, Did He Voluntarily Waive his Miranda Rights?
In the event the court is mistaken on the issue of custodial interrogation on
November 29, 2018 as discussed above, the question arises as to whether Perkins
was provided with Miranda warnings and, if so, whether he validly waived those
rights and agreed to speak with the detectives on that occasion. Det. Quintero did,
in fact, recite the Miranda warnings to Perkins on November 29, 2018. When he
started to give those warnings at the beginning of the interview, however, Perkins
interjected: "I know all of them." To each warning, Perkins responded: "Uh-huh,"
indicating his understanding of each right. Quintero did not obtain an explicit waiver
from Perkins, but he did confirm Perkins' s understanding that the interview was
"voluntary." Perkins then proceeded to participate in the interview and answered
questions posed by Quintero.
"The State bears the burden of establishing a knowing, intelligent, and
voluntary waiver of Miranda rights by a preponderance of the evidence." State v.
Lockhart, 2003 ME 108, ~21, 830 A.2d 433 quoting State v. Coombs, 1998 ME 1, ~
15,704 A.2d 392. See also State v. Ormsby, 2013 ME 88, ~ 27, 81 A.3d 336, cert.
denied, 134 S. Ct. 1523. A person's waiver of Miranda need not be explicit but the
person's conduct "must demonstrate an intentional relinquishment or abandonment
of known rights." Lockhart, 2003 ME 108, ~ 21.

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By his words and actions, Perkins manifested his intention to waive his
Miranda rights and speak voluntarily with Quintero. He clearly expressed his
understanding of his rights and demonstrated his willingness to relinquish those
rights by speaking to the detective. The court is satisfied by a preponderance of the
evidence that Perkins voluntarily, knowingly, and intentionally waived his Miranda
rights.
As found above, Perkins was clearly subjected to custodial interrogation when
he was informed by Det. Ferland that he was under arrest at about the second hour
of the interview. Exhibit 2 at 115. Following that, Det. Quintero re-read the
Miranda warnings/rights to Perkins, who again indicated that he understood them.
Exhibit 2 at 119-20. Once again, however, Det. Quintero did not obtain an explicit
waiver from Perkins. Nevertheless, after having been read the Miranda warnings a
second time and after expressing his understanding of those rights, it was Perkins
himself who began talking by asking the detectives what had been told to his wife.
Id. Perkins and the detectives continued to talk with each other until they arrived at
the jail. The court is satisfied by a preponderance of the evidence that Perkins
knowingly, intentionally and voluntarily waived his right to remain silent and agreed
to speak with law enforcement.
E. Did Perkins Invoke his Right to Counsel or His Right to Cut Off
Questioning?
When Det. Quintero told Perkins on November 29, 2018 that the allegation
concerning the teenage boy involved a claim that Perkins had performed oral sex on
the boy, Perkins adamantly denied that ever happening and said: "No, no. I don't
care - no, no. I will contact a lawyer. I have never even seen that kid's dick, never,
never." See Exhibit 2 at 18. Perkins continued to talk to Quintero, who ultimately
told Perkins to "calm down." The question arises as to whether the statement by
Perkins, "I will contact a lawyer," constituted an invocation of his right to counsel,

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assuming the November 29, 2018 interview was "custodial interrogation" at that
point in time. If Perkins was subject to custodial interrogation and if his reference
to a lawyer amounted to an invocation of counsel, all questioning should have
ceased.
Both the United States Supreme Court and the Maine Law Court have held:
"If an accused makes a statement concerning the right to counsel 'that is ambiguous
or equivocal' or makes no statement, the police are not required to end the
interrogation ... or ask questions to clarify whether the accused wants to invoke his
or her Miranda rights." Berghuis v. Thompkins, 560 U.S. 370,381 (2010). See also
State v. McNaughton, 2017 ME 173, ~ 29. In other words, a suspect must invoke his
right to counsel (or the right to cut off questioning) "unambiguously." Id.
Here, Perkins' comment that he "will contact a lawyer" was not an
unambiguous invocation of his right to counsel. Based on listening to the recording
itself, the court is satisfied that Perkins was not, in fact, unambiguously invoking his
right to counsel. Rather, he was expressing his view to Det. Quintero that he so
strongly disagreed with Quintero's claim that he had performed oral sex on the
teenage boy that he would fight that allegation going forward. Perkins continued to
talk with Quintero and continued to answer his questions.
Similarly, Perkins did not unambiguously invoke his right to cut off
questioning when, on two occasions, he said he was going to get out of the cruiser
and leave. Exhibit 2 at 50, 56. On both occasions, Det. Quintero told Perkins that
he could leave if he wanted to. Perkins did not leave and there is no indication from
the recordings that he made any effort to leave the cruiser and cut off questioning.
Rather, he stayed in the car and continued to talk with the detective.
Finally, the court has considered whether the statements made by Perkins in
the November 29, 2018 interview were voluntary. Having listened to the recorded
interview, the court is satisfied beyond a reasonable doubt: that the Defendant spoke

17
with the officers as a result of his own free choice and rational mind; that the police
did not engage in any deception or trickery or other coercive conduct, and; that
admission of the Defendant's statements made on November 29, 2018 would not be
fundamentally unfair.
CONCLUSION
The entry is: Defendant's Motion to Suppress is DENIED.

Dated: September 19, 2019

Justice, Superior Court

Entered on the docket q /Jo It q
I 7

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