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United States v. Mulkern

United States District Court, D. Maine

December 7, 2018

UNITED STATES OF AMERICA,
v.
SEAN MULKERN, Defendant.

          ORDER ON DEFENDANT'S MOTION TO SUPPRESS

          JON D. LEVY U.S. DISTRICT JUDGE.

         The Defendant, Sean Mulkern, is charged with possessing a controlled substance with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1) (West 2018), possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)(A) (West 2018), and as a felon in possession of a firearm, in violation of 18 U.S.C.A. § 922(g)(1) (West 2018). Mulkern seeks to suppress all evidence and statements obtained by the police as a result of a search of his person and vehicle, and all evidence obtained thereafter following the issuance of a search warrant.

         I. FACTUAL BACKGROUND

         Mulkern was subjected to a patdown search of his person in Westbrook following the stop of his car by the police on May 25, 2017. The search resulted in the discovery of a crystal of crack cocaine in a cigarette pack in Mulkern's jacket pocket, which led the police to conduct a warrantless search of Mulkern's car in which they found additional drugs, a substantial amount of money, and a handgun. This information was then included in a warrant affidavit that was used to secure a search warrant. The execution of that warrant led to the seizure of additional drugs, drug paraphernalia, and firearms stored in a Winnebago motor home belonging to Mulkern.

         A. The Incident at the Timberline Country Store

         On May 24, the day before Mulkern's vehicle was stopped by the Westbrook police, Officers Jessica Ramsay and Warren Day of the Buxton Police Department responded to a dispatch call involving a possible incident involving road rage and a threat with a gun at the Timberline Country Store in Buxton. The 911 dispatcher relayed a report that the driver of a white Corvette with red rims had pulled a gun on a man at the Timberline. The driver was described as a thin male wearing a white shirt and baseball cap. The dispatcher also provided the Maine motor vehicle registration number for the Corvette, which had already left the scene. The dispatcher advised, however, that the Maine registration number provided, “2512VW, ” was assigned to a black Lexus, not a white Corvette.

         While en route to the Timberline, Officer Day spoke by phone with Scott Wallingford, who had made the initial call to the police about the incident. Wallingford stated that a man in a white Corvette had pulled out a gun and threatened him with it. Wallingford and the two other men who were with him at the Timberline had left and were no longer at the store when Officers Day and Ramsay arrived.

         At the Timberline, Officer Ramsay viewed the store's surveillance video of the altercation. The video showed three men exiting a pickup truck and approaching a white Corvette, which had red stripes running the length of the vehicle and red rims, that was being operated by a white male. The four men appeared to argue, and the driver of the Corvette could eventually be seen reaching for an unidentified object in the back of the car and then holding it at the center of his chest. Upon seeing the object, the behavior of the three men became elevated and they started yelling and pointing. Due to the quality of the video, Officer Ramsay was not able to identify the object being held by the driver as a gun. The video showed the men continuing to argue until the Corvette drove away as the driver continued yelling at the three men.

         As Officer Ramsay watched the video, she made comments which were recorded on the audio track of her WatchGuard video camera. She stated several times that it appeared that the three men were the aggressors who, by their threatening conduct, appeared to be “asking for it” by placing the driver of the Corvette in fear for his own safety.

         Officer Ramsay also interviewed and took a statement from a Timberline employee who stated that he had seen the incident through a window from inside the Timberline's truckers' lounge. The employee explained that he saw three large men wearing green fencing company shirts yelling at a skinny man, “most likely about 50 years of age, ” who was operating a white car with two red stripes. The employee reported that before the car drove away, the three men kept approaching the car and yelling at the driver to get out and fight. He also reported that the driver had attempted to get out of the car several times, but was not able to because he had not put his car in park; that the driver was yelling at the three men as the Corvette drove away; and that the three men then entered the store and asked for someone to call the police. The three men told the employee and a second employee that prior to arriving at the Timberline, the driver of the Corvette had dangerously sped by them on the road, that they had followed the Corvette into the Timberline parking lot, confronted the driver about his driving, and that the driver had then pulled out a gun. The employee who gave the statement then went outside and helped one of the three men sweep up the shattered pieces of a cell phone which the man had thrown at the Corvette. The employee had not seen a gun during the incident.

         After investigating the scene, Officer Ramsay decided to issue a be-on-the-lookout report (the “Bulletin”) to the statewide police broadcast concerning the Corvette and its operator. The Bulletin read:

*** Caution Officer Safety ***
On todays date Buxton Police Department took a report of a male in a white Corvette with red rims was in a[n] 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.

Def. Ex. 1 (all capitalization omitted). At the time the Bulletin was issued, Officer Ramsay believed that the information she had was not enough to enable her to determine who was the victim and who was the aggressor during the altercation, but she wanted to interview the driver of the Corvette because a gun had been involved in the incident.

         B. The Traffic Stop

         On May 25 at approximately 2:15 pm, Sgt. Timothy Morrell of the Westbrook Police Department, who had read the Bulletin, spotted a white Corvette with red rims in Westbrook. The Corvette matched the description from the Bulletin and it bore Maine registration 2513VW. Sgt. Morrell ran a search of the Corvette's registration number in the Bureau of Motor Vehicles database, which identified Sean Mulkern as the registered owner. Sgt. Morrell observed that the driver was a white male in his 40's wearing a baseball cap. He then contacted the Buxton Police Department and spoke with Chief Troy Cline, who confirmed that the Corvette's registration was one digit off from the registration number 2512VW that had been reported the prior day. This led Sgt. Morrell to determine that the Corvette was the same vehicle identified in the Bulletin. Chief Cline indicated that he would join Sgt. Morrell at the scene to assist with identifying the driver of the Corvette.

         Sgt. Morrell continued his surveillance of the Corvette, which was now parked in the driveway of a residence on Berkeley Street. He ran a criminal background check on Mulkern, which revealed that Mulkern had a history of drug-related charges and was a convicted felon. Sgt. Morrell subsequently observed Mulkern standing outside the car with a locksmith who had arrived to unlock the Corvette; it appeared that Mulkern had locked his keys in the car. Sgt. Morrell was able to positively identify Mulkern based on a photograph of Mulkern in the Bureau of Motor Vehicles database.

         Sgt. Morrell contacted Officer Philip Robinson and Sgt. Brian Olson of the Westbrook Police Department, both of whom responded to Sgt. Morrell's location to assist with surveillance. Sgt. Morrell did not want to immediately approach and have contact with Mulkern because Chief Cline had not yet arrived. His plan changed, however, when he observed Mulkern get into the Corvette and begin to back the car out of the driveway. As the Corvette backed out, Sgt. Morrell intuited that Mulkern had spotted Sgt. Morrell's marked police cruiser because the Corvette's direction abruptly changed so that it drove away from, rather than towards, Sgt. Morrell's car. Sgt. Morrell activated his cruiser's blue lights and initiated a traffic stop.

         Sgt. Olson, who had his gun drawn but pointed down, and Sgt. Morrell approached the Corvette. Sgt. Morrell ordered Mulkern out of the vehicle, and directed him to place his hands on the rear of the car. Both officers observed that Mulkern appeared to be under the influence of drugs or alcohol. His eyes were bloodshot, his behavior was jittery and, as described by Sgt. Olson, he appeared to be “amped up.” ECF No. 48 at 117. Sgt. Morrell, while standing on Mulkern's left side with Sgt. Olson on ...


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