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Description: Portland, Maine criminal law lawyer represented Defendant charged with drug trafficking and firearm felonies.

This case arises from a parkinglot confrontation following a road-rage incident between the driver of a white Corvette and several men in a landscaping truck.

Reports of that confrontation led law enforcement to stop Sean Mulkern in his white Corvette the next day. The subsequent searches of Mulkern's vehicle and motor home yielded evidence supporting drug-trafficking and firearms charges. Mulkern moved to suppress all of the evidence derived from what he argues were illegal searches of his person and vehicles. After the district court denied that motion in relevant part, Mulkern pleaded guilty.

At sentencing, the district court found that Mulkern had three prior qualifying offenses that rendered him subject to a mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Mulkern claims on appeal that the district court erred first in denying his suppression motion and second in finding him eligible for the ACCA sentence. As we explain below, we see no error on either score, so we affirm Mulkern's conviction and sentence.

On May 24, 2017, Officers Warren Day and Jessica Ramsay of the Buxton, Maine police department responded to a dispatch call reporting a possible road-rage incident and armed confrontation. As relayed by the dispatcher, a man driving a white Corvette with red rims had reportedly pulled a gun on a man at the Timberline Country Store in Buxton. The dispatcher relayed a Maine license plate number reported for the Corvette, "2512VW," but noted that this number was actually registered to a black Lexus, rather than a white Corvette.

While en route to the Timberline, Officer Day spoke on the phone with one of the reported victims, Scott Wallingford. Wallingford, who had by that time left the Timberline and was on his way to a job site, confirmed that the driver of a white Corvette had displayed a gun and threatened him and his companions. When Officers Day and Ramsay arrived at the Timberline, the Corvette was no longer present. The officers spoke with two store employees, who showed the officers a security video of the confrontation. According to Officer Ramsay's testimony at the suppression hearing, the video depicted a white Corvette and a

landscaping truck in the store's parking lot. Officer Ramsay described the Corvette as "very distinct." Three occupants of the truck got out, approached the Corvette, and argued with its driver. The driver of the Corvette then "reached into the back of the Corvette and pulled something out -- it was difficult to tell what it was at the time," and then held the object against his chest. The three men on foot then "got elevated in their behavior"; "[t]hey started yelling and pointing" before the Corvette drove off.

One of the employees, Jaaron Thurlow, had been working during the incident. He spoke with the officers after they had reviewed the video. He recounted that he had seen three men in the parking lot arguing with a fourth man in the driver's seat of a white Corvette with two red stripes running from the front to the back. Thurlow said that the Corvette driver was in his 50s and wore glasses. He reported that the men yelled at each other before the Corvette drove away and that the group of remaining men then came into the store to talk to him. As related by Thurlow, the group told him that the Corvette had sped by them on the road, that they followed him into the parking lot to confront him about his dangerous driving, and that the Corvette driver had then pulled a gun on them.

On the basis of the video and the reports from Wallingford and Thurlow, Officer Ramsay requested that her station issue a "Caution Officer Safety" alert -- also referred to as a "BOLO" (short for "be on the lookout") -- in a statewide law enforcement system. The BOLO read in full:

*** CAUTION OFFICER SAFETY *** ON TODAY'S DATE BUXTON POLICE DEPARTMENT TOOK A REPORT OF A MALE IN A WHITE CORVETTE WITH RED RIMS WAS IN A ALTERCATION AT TIMBERLINE COUNTRY STORE 222 NARRAGANSETT TRAIL. THE OPERATOR A MALE IN HIS 40'S WHITE SHIRT AND BALL CAP, PULLED OUT A HAND GUN AND SHOWED IT TO THE VICTIM. THE VEHICLE WAS LAST SEEN HEADED TOWARD GORHAM. IF LOCATED STOP AND IDENTIFY THE DRIVER. THANK YOU FOR ANY ASSISTANCE.

2.

The next day, May 25, Patrol Sergeant Timothy Morrell of the nearby Westbrook, Maine police department observed a white Corvette with red rims, as described in the BOLO that he had seen come in the previous day. He testified at the suppression hearing that, based on the distinctive nature of the vehicle, he thought, "The odds of that being someone else are pretty slim." When the Corvette stopped and parked, Sergeant Morrell ran its license plate number -- 2513VW -- and learned that it was registered to the defendant, Sean Mulkern. He was also able to see that the driver appeared to be a man in his 40s with a baseball cap, as described in the BOLO.

He then called Buxton PD to inform them he believed he'd located the vehicle from their notice. Based on the vehicle description and plate number, Buxton's police chief confirmed that the sergeant had found the vehicle Buxton PD was investigating and that his department would send officers out to speak with the driver. Sergeant Morrell acknowledged that, after the call with Buxton PD, he did not believe that he personally had sufficient information at that point to arrest Mulkern.

In the meantime, Sergeant Morrell ran a criminal background check on Mulkern and learned that he had been convicted of at least one felony and had a history of drug-trafficking charges. He also identified the driver he observed as Mulkern, based on the booking photo in the criminal history report. Sergeant Morrell then called some other local officers to assist with surveillance while waiting for Buxton PD. However, once Mulkern got back into the Corvette and began to drive away, Sergeant Morrell decided to change course and conduct a traffic stop because he did not want Mulkern to get away. As Mulkern pulled out of the driveway towards the direction of Sergeant Morrell, he saw the sergeant and then turned hard in the other direction. Sergeant Morrell then activated his lights and pulled Mulkern over.

Sergeant Morrell and another Westbrook officer, Sergeant Brian Olson, who had arrived to assist, then ordered Mulkern out of the car and frisked him. Sergeant Morrell started the frisk but soon stopped so that he could secure the scene, letting Sergeant Olson conduct the frisk instead. Sergeant Olson felt a hypodermic needle in Mulkern's breast pocket and, when Mulkern reached for the needle and began to attempt to explain that it was his girlfriend's, the officers handcuffed him. Sergeant Olson then proceeded with the frisk and discovered a cigarette package in another pocket. The package's outer cellophane wrapper contained "white crystal rocks" that the officers believed to be crack cocaine.

At that point, according to Sergeant Morrell's testimony at the suppression hearing, the officers believed they had developed probable cause to search Mulkern's vehicle for evidence of drug trafficking. In conducting this search, they discovered a backpack containing drugs, a gun, and over $13,000 in cash. During the course of the frisk and vehicle search, Mulkern made several incriminating statements: He told the officers that the rocks in the cigarette package were his; spontaneously shouted out during the vehicle search that there was a gun in the car; and, when officers found the backpack, stated something to the effect of, "Yeah, you got it, that's it."

Later that day, evidence derived from the traffic stop and vehicle search, as well as information provided by a cooperating defendant, was used to obtain a search warrant for Mulkern's Winnebago mobile home. Law enforcement executed the warrant that evening and discovered further drugs and guns in the Winnebago.

B.

A grand jury indicted Mulkern on three counts of drug trafficking and firearms offenses. Mulkern moved to suppress all physical evidence and statements obtained from the stop under several theories, including that the initial stop was an unlawful seizure, that the subsequent search of his person exceeded the bounds of a lawful pat-frisk, that the evidence obtained pursuant to the ensuing search warrant for his Winnebago was tainted by the earlier infirmities as so-called "fruit of the poisonous tree," and, finally, that several of his statements during the traffic stop were the product of custodial interrogation without the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). The district court agreed with Mulkern as to part of his Fifth Amendment Miranda claim and suppressed any statements that were prompted by the officers' questioning, while declining to suppress statements Mulkern spontaneously offered. No challenge is pressed on appeal by either party to the district court's resolution of that claim.1

As to the search and seizure claims, the district court denied Mulkern's motion. While the court agreed that the search of Mulkern's person would have exceeded the lawful bounds of a pat-frisk if it could only have been justified on that basis, the court upheld all of the searches on an alternative basis: Law enforcement officers were justified in searching Mulkern's person and vehicle as a search incident to arrest because they had probable cause before the search to arrest Mulkern for being a felon in possession of a firearm.

Following the suppression ruling, Mulkern pleaded guilty to counts one and three of the indictment, for, respectively: (1) possession of cocaine base, cocaine hydrochloride, and heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C); and (2) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a).2 He reserved the right to appeal the denial of his motion to suppress. In its presentence investigation report, U.S. Probation recommended that Mulkern be sentenced as an armed career criminal on the basis of a 1994 Maine burglary conviction (as a "violent felony") and two 2006 Maine drug-trafficking convictions (as "serious drug offense[s]"). Mulkern disputed his eligibility for an ACCA sentence in briefing and at the sentencing hearing, but the district court ultimately agreed with Probation's recommendation.3 The court varied downward from the sentencing range provided by the U.S. Sentencing Guidelines and sentenced Mulkern to ACCA's mandatory-minimum term of fifteen years of incarceration.

Outcome: Affirmed

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