49 F.4th 623
1st Cir.2022Background
- May 24, 2017: a Timberline Country Store surveillance video and witness reports described a confrontation in which the driver of a white Corvette with distinctive red trim allegedly brandished something that witnesses identified as a gun; Buxton PD issued a BOLO describing the vehicle and driver.
- May 25, 2017: Westbrook Sgt. Morrell located a white Corvette with red rims whose plate (2513VW) matched the BOLO; he confirmed the registered owner as Sean Mulkern, reviewed Mulkern's felony/drug history, and initiated a traffic stop when the car attempted to leave.
- Officers ordered Mulkern out, conducted a frisk, felt a hypodermic needle and then discovered a cigarette pack whose cellophane wrapper contained crack-like rocks; they handcuffed him, searched the car (finding a gun, backpack with drugs, and cash), and later obtained and executed a warrant for Mulkern's Winnebago, seizing additional drugs and firearms.
- Mulkern moved to suppress physical evidence and statements as the product of an unlawful stop/search; the district court denied suppression, concluding officers had probable cause to arrest Mulkern for being a felon in possession (thus justifying searches incident to arrest) but suppressed statements elicited by questioning under Miranda.
- Mulkern pleaded guilty to drug-trafficking and felon-in-possession counts, reserved the suppression issue, and at sentencing the court applied the ACCA mandatory 15-year minimum based on a 1994 burglary and two 2006 Maine drug-trafficking convictions; the First Circuit affirmed the denial of suppression and upheld the ACCA sentence on waiver grounds, while Chief Judge Barron dissented as to the sentence.
Issues
| Issue | Plaintiff's Argument (Mulkern) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Lawfulness of stop/frisk and searches (Fourth Amendment) | Stop/search were unlawful: no probable cause to arrest for felon-in-possession at outset; frisk exceeded Terry bounds; evidence and statements therefore fruit of poisonous tree | Collective information (BOLO, video, witness reports, plate match, criminal history) supplied probable cause to arrest for felon-in-possession; searches incident to arrest and vehicle search under Gant were lawful | Affirmed: objective totality (collective knowledge) gave probable cause that Mulkern, a felon, had possessed a gun; search incident to arrest and vehicle search were lawful; suppression denial affirmed |
| Use of evidence to obtain Winnebago warrant (fruit of poisonous tree) | Evidence tainted by unlawful stop/search so Winnebago warrant and its fruits must be suppressed | If traffic-stop evidence lawful, it properly supported the Winnebago warrant | Affirmed: because traffic-stop evidence was lawfully obtained, use to secure Winnebago warrant was proper |
| ACCA enhancement based on two Maine drug-trafficking convictions | On appeal argues the Shepard record does not establish the convictions were for cocaine (an ACCA predicate) rather than heroin (not a predicate), so ACCA inapplicable | At sentencing defendant conceded (in counsel’s memo and in-court confirmation) that the prior traffickings involved cocaine; government relied on that representation and Shepard documents; defendant therefore waived the record-deficiency challenge | Affirmed: court finds Mulkern waived the argument by conceding the priors involved cocaine; majority declines to excuse waiver (dissent would vacate sentence and remand for proof) |
Key Cases Cited
- Devenpeck v. Alford, 543 U.S. 146 (warrantless arrest valid when there is probable cause for any offense)
- Robinson v. United States, 414 U.S. 218 (full search of person incident to lawful arrest)
- Arizona v. Gant, 556 U.S. 332 (vehicle search incident to arrest limited to arrestee's reach or vehicle evidence of offense)
- Shepard v. United States, 544 U.S. 13 (limits on documents courts may consult to identify the factual basis of a prior guilty plea for ACCA analysis)
- Mathis v. United States, 579 U.S. 500 (when a statute is divisible, sentencing courts must examine the record to determine which statutory variant formed the conviction)
- United States v. Mohamed, 920 F.3d 94 (1st Cir.) (Maine cocaine-trafficking convictions qualify as ACCA "serious drug offenses")
- United States v. Mulkern, 854 F.3d 87 (1st Cir.) (prior panel: Maine heroin-trafficking convictions do not categorically qualify as ACCA predicates)
- United States v. Monell, 801 F.3d 34 (1st Cir.) (probable-cause review is objective and may consider collective knowledge of officers)
- United States v. Orsini, 907 F.3d 115 (1st Cir.) (waiver doctrine: explicit affirmations of fact in district court ordinarily waive contrary appellate claims)