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United States v. Eric Murdock

November 20, 2012



The opinion of the court was delivered by: McCONNELL, District Judge.

Before Lynch, Chief Judge, Boudin, Circuit Judge, and McConnell, Jr.,*fn1 District Judge.

A jury convicted Eric Murdock of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Murdock was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), to 216 months in prison. On appeal, Mr. Murdock argues that the district court erred in three ways, by (i) refusing to suppress his statement regarding a bag containing firearms; (ii) admitting an audio recording of a telephone call; and (iii) sentencing him under the ACCA. Finding no error in the district court's rulings, we affirm.


Mr. Murdock challenges the district court's denial of his motion to suppress a statement he made to the police regarding the color of a bag containing firearms and ammunition. Mr. Murdock contends that his statement should have been suppressed because he was in custody and not given Miranda warnings.

We recount the facts as supportably found by the district court, including any inferences drawn from those facts. United States v. Crooker, 688 F.3d 1, 3 (1st Cir. 2012). Here, those facts and inferences are taken from the bench decision issued after hearing Mr. Murdock's motion to suppress, as well as testimony at that hearing.

On August 20, 2010, Mr. Murdock was at the Eliot, Maine police station on an unrelated charge. He was released, subject to bail conditions prohibiting him from possessing firearms and requiring him to submit to searches of his home and his person. At that time, Mr. Murdock and his wife were staying at a residence on Young Street in South Berwick, Maine.

An agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") contacted South Berwick police officer Jeffrey Pelkey and told him that Mr. Murdock had been released from the Eliot police station and was headed home to South Berwick. ATF had been told that Mr. Murdock may have received some firearms in the mail. Concerned that those firearms were at Mr. Murdock's residence, the ATF agent asked Officer Pelkey to ensure that no firearms were there. Officer Pelkey requested and received a facsimile of the bail bond containing the firearms ban and the requirement that Mr. Murdock submit to searches of his home and his person.

When Officer Pelkey arrived at the Young Street residence where Mr. Murdock was staying, Mr. Murdock and his wife already had exited their car and started walking to the residence. Officer Pelkey, who was in uniform, verbally ordered Mr. Murdock to stop, but Mr. Murdock continued walking away from him. Officer Pelkey unholstered his firearm, kept it at his side, and ordered Mr. Murdock to stop and come back. Mr. Murdock complied. Then Officer Pelkey reholstered his weapon, spoke to Mr. Murdock, and patted him down. Officer Pelkey advised Mr. Murdock that officers were searching for weapons pursuant to his bail conditions.

Within about a minute, four additional law enforcement officers arrived; three officers were in uniform while one was not, but that officer had his badge and firearm. The owner of the Young Street residence, John Belliveau, came to the front door and spoke with Officer Pelkey. Mr. Belliveau consented to a search of the entire residence, not just the area where Mr. Murdock was staying.

During the next forty-five minutes to an hour, Mr. Murdock remained on the small front lawn, an area approximately 12 to 15 feet by 20 feet. Mr. Murdock spoke to his wife, used his cell phone, sat in a chair, and drank a beverage. He was not handcuffed or restrained, was not told that he could not leave, and was not advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). Most of the time, one or two officers remained with Mr. Murdock.

While Mr. Murdock was on the lawn, officers searched for firearms. In the trunk of a car garaged on the premises, officers found a red overnight bag containing two handguns and ammunition. The bag was given to Officer Pelkey, who carried it from the garage towards the front lawn, holding it on his side so it was not visible to those on the lawn. Officer Pelkey announced that he had found "the blue bag with your weapons in it." Mr. Murdock interjected that the bag was red, prompting Officer Pelkey to agree that the bag was red.

Officer Pelkey also spoke to Mr. Murdock about a trailer that was on the property. The trailer belonged to Mr. Murdock and the officers wanted to search it. It had two separate doors that were padlocked, and Mr. Murdock gave the officers a wad of keys to see if any would fit in the locks. When none of the keys worked, the officers told Mr. Murdock that they would probably be breaking one of the locks. Mr. Murdock requested that the officers break the smaller lock as it was less expensive to replace. The officers broke the smaller lock.

Ultimately, Officer Pelkey informed Mr. Murdock that Mr. Belliveau did not want him staying at the Young Street residence any more. Mr. Murdock called his ...

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