MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	16	
Docket:	   And-18-55	
Argued:	   September	13,	2018	     	     	      	     	      	
Decided:	  January	29,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 STATE	OF	MAINE	
                                         	
                                        v.	
                                         	
                               CHRISTOPHER	W.	ROY	
	
	
HUMPHREY,	J.	

      [¶1]	 	 In	 this	 appeal,	 we	 address	 the	 effect	 of	 technology	 on	 the	

constitutional	balance	between	the	particularity	and	timeliness	requirements	

of	a	search	warrant	and	the	ever-expanding	digital	space	into	which	that	search	

may	reach.	

      [¶2]		Christopher	W.	Roy	appeals	from	a	judgment	of	conviction	for	three	

counts	of	possession	of	sexually	explicit	material	of	a	minor	under	age	twelve	

(Class	 C),	 17-A	 M.R.S.	 §	 284(1)(C)	 (2017),	 entered	 in	 the	 trial	 court	

(Androscoggin	County,	MG	Kennedy,	J.)	after	Roy	pleaded	guilty	conditioned	on	

his	opportunity	to	appeal	the	denial	of	his	motion	to	suppress.		M.R.U.	Crim.	P.	

11(a)(2).		We	affirm	the	judgment.	
2	

                                           I.		BACKGROUND	

         [¶3]		Viewing	the	evidence	in	the	light	most	favorable	to	the	court’s	order	

denying	the	motion	to	suppress,	the	record	supports	the	following	facts.		See	

State	v.	Sasso,	2016	ME	95,	¶	2,	143	A.3d	124.		On	August	18,	2016,	a	detective	

with	the	Maine	State	Police	Computer	Crimes	Unit	used	a	file-sharing	network	

to	download	a	file	of	interest	in	child	pornography	investigations.		The	detective	

determined	that	this	file	was	made	available	by	a	device	connected	to	a	certain	

IP	 address.1	 	 The	 detective	 later	 viewed	 the	 file,	 which	 included	 a	 video	 of	 a	

young	 girl,	 approximately	 three	 to	 five	 years	 of	 age,	 unclothed	 and	 being	

sexually	abused	by	an	adult.			

         [¶4]	 	 The	 detective	 consulted	 with	 the	 United	 States	 Department	 of	

Homeland	 Security	 and	 learned	 that	 the	 IP	 address	 was	 registered	 to	 Time	

Warner	 Cable,	 a	 nationwide	 internet	 service	 provider.	 	 On	 August	 22,	 2016,	

Time	Warner	informed	the	detective	that	Roy	was	the	subscriber	of	the	account	

associated	 with	 that	 IP	 address	 when	 the	 video	 file	 was	 downloaded	 and	


     1		An	IP	address	is	a	“unique	string	of	numbers	.	.	.	that	identifies	each	computer	using	the	Internet	

Protocol	 to	 communicate	 over	 a	 network.”	 	 IP	 Address,	 New	 Oxford	 American	 Dictionary	 (3d	 ed.	
2010).		According	to	Techopedia.com,	the	IP	address	is	a	logical	numeric	address	that	is	assigned	to	
and	identifies	every	computer	or	other	device	that	connects	to	any	internet-based	communications	
network	and	is	the	“core	component	on	which	the	networking	architecture	is	built;	no	network	exists	
without	it.”		Internet	Protocol	Address,	Techopedia,	https://www.techopedia.com/definition/2435/	
internet-protocol-address-ip-address	 (last	 visited	 Jan.	 24,	 2019).	 	 For	 additional	 discussion	 of	 IP	
addresses,	see	United	States	v.	Vosburgh,	602	F.3d	512,	527	(3d	Cir.	2010);	United	States	v.	Forrester,	
512	F.3d	500,	510	n.5	(9th	Cir.	2008).			
                                                                                        3	

provided	 the	 detective	 with	 the	 account’s	 service	 address	 in	 Maine.	 	 The	

address	matched	that	of	Roy	on	file	with	the	Maine	Bureau	of	Motor	Vehicles.			

      [¶5]		Based	on	this	information,	the	detective	prepared	an	affidavit	and	

request	for	a	search	warrant.		On	August	31,	2016—thirteen	days	after	learning	

that	the	downloaded	file	appeared	on	the	file-sharing	network	by	way	of	Roy’s	

IP	address—the	detective	sought	and	the	court	issued	a	warrant	authorizing	

(a)	 the	 search	 of	 Roy’s	 residence	 and	 property,	 outbuildings,	 vehicles,	 and	

persons	on	the	property	at	the	time	the	warrant	was	to	be	executed,	and	(b)	in	

relevant	 part,	 the	 seizure	 of	 the	 following	 items	 believed	 to	 “constitute	

instrumentalities”	 of	 the	 crimes	 of	 illegal	 possession	 and	 dissemination	 of	

sexually	explicit	depictions	of	minors,	17-A	M.R.S.	§§	283,	284	(2017):		

      1.	    Images	of	child	pornography,	in	any	form;		
      2.	    Records	 or	 images	 in	 any	 form	 pertaining	 to	 the	
             manufacture,	possession	or	receipt	of	child	pornography;	
      3.	    Records	or	images	in	any	form	relating	to	the	identity	of	the	
             minors	depicted	in	any	seized	images;			
      4.	    Records	 or	 images	 in	 any	 form	 reflecting	 personal	 contact	
             with	any	of	the	minors	depicted	in	any	seized	images;		
      5.	    Records	 or	 images	 in	 any	 form	 reflecting	 access	 to,	 or	
             payment	 for	 access	 to,	 websites	 containing	 or	 relating	 to	
             child	pornography;		
      6.	    Computers,	 portable	 electronic	 devices	 and	 digital	 storage	
             media	 of	 any	 kind	 .	 .	 .	 .	 [A]ny	 electronic	 system	 or	 device	
             capable	 of	 storing	 and/or	 processing	 data	 in	 digital	 form,	
4	

             including:	 central	 processing	 units;	 laptops	 or	 notebook	
             computers;	 personal	 digital	 assistants;	 wireless	
             communication	 devices	 such	 as	 telephone	 paging	 devices,	
             beepers,	and	cellular	telephones[;]	peripheral	input/output	
             [devices]	 such	 as	 keyboards,	 printers,	 scanners,	 plotters,	
             monitors,	 and	 drives	 intended	 for	 remova[ble]	 media;	
             related	 communications	 devices	 such	 as	 modem[s],	 cables,	
             and	 connections;	 storage	 media	 such	 as	 hard	 disk	 drives,	
             floppy	 disks,	 thumb	 drive[s],	 magnetic	 tapes,	 and	 memory	
             chips;	and	security	devices;	[and]	
      7.	    Evidence	in	any	form	suggesting	a	sexual	interest	in	minors	
             and	their	activities.		These	items	are	to	include	collections	of	
             photographs	 or	 magazines	 containing	 images	 of	 children	
             [and/or]	adolescents	.	.	.	.	
      [¶6]	 	 The	 next	 day,	 September	 1,	 2016,	 the	 police	 executed	 the	 search	

warrant	and	seized	nearly	600	sexually	 explicit	images	of	children	that	were	

stored	 on	 a	 cellular	 telephone	 and	 a	 microSD	 card	 (a	 small	 portable	 digital	

media	storage	device).		The	ages	of	the	children	depicted	in	the	images	seized	

ranged	from	under	one	year	to	nine	years.			

      [¶7]		In	February	2017,	a	grand	jury	returned	an	indictment	charging	Roy	

with	eight	counts	of	possession	of	sexually	explicit	material	of	a	minor	under	

the	 age	 of	 twelve.	 	 See	 17-A	 M.R.S.	 §	 284(1)(C).	 	 Roy	 moved	 to	 suppress	 the	

evidence	 seized	 pursuant	 to	 the	 search	 warrant.	 	 After	 holding	 a	 hearing,	 on	

December	7,	2017,	the	court	(Androscoggin	County,	MG	Kennedy,	J.)	denied	his	

motion.			
                                                                                    5	

      [¶8]		In	February	2018,	Roy	pleaded	guilty,	conditionally,	to	three	counts	

of	the	indictment	and	the	State	dismissed	the	remaining	five	counts.		Roy	timely	

appealed.	

                                 II.		DISCUSSION	

      [¶9]	 	 Roy	 argues	 that	 the	 court	 erred	 by	 not	 suppressing	 the	 seized	

evidence	 because	 the	 search	 warrant	 was	 stale,	 failed	 to	 describe	 items	

presumptively	 protected	 by	 the	 First	 Amendment	 with	 “scrupulous	

exactitude,”	and	otherwise	failed	to	describe	the	places	to	be	searched	and	the	

items	to	be	seized	with	sufficient	particularity.	

A.	   Staleness		

      [¶10]	 	 Roy	 contends	 that	 the	 court	 erred	 by	 denying	 his	 motion	 to	

suppress	 because	 the	 circumstances	 described	 in	 the	 affidavit	 supporting	

probable	 cause	 to	 issue	 a	 search	 warrant—information	 that	 the	 downloaded	

video	 file	 was	 from	 an	 IP	 address	 associated	 with	 Roy’s	 computer—were	

thirteen	days	old	when	the	warrant	was	issued,	rendering	the	foundation	for	

the	warrant	stale.		As	a	result,	he	argues,	by	the	time	the	warrant	was	requested	

and	issued,	the	affidavit	provided	no	basis	to	conclude	that	the	downloaded	file	

was	still	in	the	place	associated	with	Roy’s	IP	address.			
6	

      [¶11]		When	reviewing	the	denial	of	a	motion	to	suppress	on	grounds	that	

the	 information	 relied	 on	 for	 issuing	 a	 search	 warrant	 was	 stale,	 we	 review	

directly	 the	 finding	 of	 probable	 cause	 by	 the	 issuing	 judge,	 giving	 great	

deference	to	that	determination,	and	we	must	draw	all	reasonable	inferences	

that	support	the	decision	to	issue	the	warrant.		State	v.	Wright,	2006	ME	13,	¶	8,	

890	A.2d	703	(quotation	marks	omitted).			

      [¶12]	 	 “Probable	 cause	 exists	 when,	 based	 on	 the	 totality	 of	 the	

circumstances,	there	is	a	fair	probability	that	contraband	or	evidence	of	a	crime	

will	 be	 found	 in	 a	 particular	 place.”	 	 State	 v.	 Samson,	 2007	 ME	 33,	 ¶	 12,	

916	A.2d	977	(quotation	marks	omitted).		To	meet	this	standard,	the	affidavit	

supporting	the	warrant	must	set	forth	some	“nexus”	between	the	information	

upon	 which	 the	 warrant	 relies	 and	 the	 location	 of	 the	 property	 to	 be	 seized.		

Id.	¶	15.		Whether	probable	cause	still	exists	at	the	time	a	warrant	is	requested	

is	 determined	 not	 by	 the	 mere	 passage	 of	 time	 between	 observation	 of	 the	

evidence	and	application	for	the	warrant	but	by	the	consideration	of	the	unique	

facts	and	circumstances	of	the	case	at	hand.		See	State	v.	Crowley,	1998	ME	187,	

¶	 5,	 714	 A.2d	 834	 (time	 between	 circumstances	 and	 request	 for	 search	

warrant);	 State	 v.	 Willey,	 363	 A.2d	 739,	 742	 (Me.	 1976)	 (time	 between	

circumstances	 and	 issuance	 of	 search	 warrant).	 	 That	 timeframe,	 Roy	
                                                                                         7	

acknowledges,	does	not	lend	itself	to	a	per	se	maximum	period	of	time	within	

which	a	search	warrant	must	be	sought.		See	Wright,	2006	ME	13,	 ¶	9	&	n.3,	

890	A.2d	703.			

	     [¶13]	 	 In	 Wright,	 we	 were	 presented	 with	 a	 similar	 challenge	 to	 the	

timeliness	 of	 a	 warrant	 in	 a	 child	 pornography	 investigation	 where	 at	 least	

eighty	days	had	elapsed	between	the	occurrence	establishing	probable	cause	

and	the	issuance	of	the	warrant.		Id.	¶	7.		The	affiant	cited	the	opinions	of	experts	

in	 child	 pornography	 investigations	 to	 support	 his	 assertion	 that	 those	 who	

collect	 child	 pornography	 are	 “likely	 to	 retain	 the	 images”	 for	 long	 periods,	

sometimes	“indefinitely,”	rather	than	disposing	of	them.		Id.	¶¶	7,	11.		We	held	

that	in	the	context	of	a	child	pornography	investigation,	the	passage	of	eighty	

days	between	the	observation	of	a	crime	and	the	application	for	a	warrant	is	

not	 too	 long	 to	 render	 the	 information	 stale	 because	 of	 the	 demonstrated	

propensity	 of	 its	 consumers	 to	 retain	 the	 images	 for	 long	 periods	 of	 time.		

Id.	¶	11;	 see	 also	 United	 States	 v.	 Seiver,	 692	 F.3d	 774,	 778	 (7th	 Cir.	 2012)	

(noting	 that	 a	 central	 inquiry	 into	 staleness	 in	 a	 child	 pornography	

investigation	 requires	 a	 “realistic	 understanding	 of	 modern	 computer	

technology	and	the	usual	behavior	of	its	users”).		Other	courts	have	held	that,	

in	 the	 context	 of	 a	 child	 pornography	 investigation,	 much	 longer	 periods	 of	
8	

time—even	years—may	pass	without	the	information	relied	on	for	a	warrant	

becoming	stale.2			

         [¶14]		In	this	case,	the	detective’s	affidavit	describes	practices	by	which	

electronic	forms	of	child	pornography	are	commonly	received,	collected,	and	

retained	 for	 considerable	 lengths	 of	 time,	 and	 the	 affidavit	 outlines	 the	

detective’s	 training	 and	 investigatory	 experience	 in	 child	 pornography	 cases.		

As	in	Wright,	this	detailed	information	is	sufficient	to	demonstrate	that,	given	

the	 short	 time	 between	 the	 download	 on	 August	 18	 and	 the	 request	 for	 a	

warrant	on	August	31—only	thirteen	days—and	considering	the	nature	of	the	

contraband	at	issue,	the	court	had	a	substantial	basis	on	which	to	conclude	that	

the	file	of	interest	identified	in	the	affidavit	would	still	be	in	Roy’s	possession	

on	his	computer	or	accessible	by	his	electronic	devices.		The	information	the	

court	relied	on	was	not	stale	and	the	court	did	not	err	in	so	ruling.			




     2		See,	e.g.,	United	States	v.	Carroll,	750	F.3d	700,	704	(7th	Cir.	2014)	(five	years);	United	States	v.	

Frechette,	 583	 F.3d	 374,	 378-79	 (6th	 Cir.	 2009)	 (sixteen	 months);	 United	 States	 v.	
Morales-Aldahondo,	 524	 F.3d	 115,	 119	 (1st	 Cir.	 2008)	 (three	 years);	 United	 States	 v.	 Irving,	
452	F.3d	110,	115,	125	(2d	Cir.	2006)	(two	to	five	years);	United	States	v.	Hay,	231	F.3d	630,	636	
(9th	 Cir.	 2000)	 (six	 months);	 United	 States	 v.	 Horn,	 187	 F.3d	 781,	 786-87	 (8th	 Cir.	 1999)	 (three	
months);	United	States	v.	Lacy,	119	F.3d	742,	745-46	(9th	Cir.	1997)	(ten	months);	United	States	v.	
Harvey,	 2	 F.3d	 1318,	 1322-23	 (3d	 Cir.	 1993)	 (two	 to	 fifteen	 months);	 United	 States	 v.	 Coffin,	
No.	1:17-cr-00025-JAW,	2018	U.S.	Dist.	LEXIS	17183,	at	*2-4,	11-12	(D.	Me.	Feb.	2,	2018)	(one	year);	
United	States	v.	Albert,	195	F.	Supp.	2d	267,	271-72	(D.	Mass.	2002)	(four	to	five	months).	
                                                                                         9	

B.	   Constitutional	Adequacy	

      [¶15]	 	 Roy	 next	 argues	 that	 the	 search	 warrant	 was	 constitutionally	

deficient	in	that	(1)	it	did	not	describe	the	items	to	be	seized	with	scrupulous	

exactitude,	 resulting	 in	 the	 seizure	 of	 material	 protected	 by	 the	 First	

Amendment	for	the	ideas	they	contained,	and	(2)	it	otherwise	failed	to	describe	

the	places	to	be	searched	and	the	items	to	be	seized	with	sufficient	particularity.		

“[A]	decision	as	to	the	constitutional	adequacy	of	a	search	warrant	is	a	matter	

of	 law”	 that	 we	 review	 de	 novo.	 	 State	 v.	 Pelletier,	673	 A.2d	 1327,	 1329	

(Me.	1996)	(footnote	omitted).		

      1.	    Scrupulous	Exactitude	

      [¶16]		The	Fourth	Amendment	requires	“the	most	scrupulous	exactitude”	

when	 the	 First	 Amendment	 protects	 the	 things	 to	 be	 seized,	 such	 as	 images,	

books,	 or	 magazines,	 “and	 the	 basis	 for	 their	 seizure	 is	 the	 ideas	 which	 they	

contain.”		Stanford	v.	Texas,	379	U.S.	476,	485	(1965).		“First	Amendment	rights	

and	the	scrupulous	exactitude	standard	are	not	implicated,	however,	when	the	

materials	to	be	seized	are	sought	as	evidence	of	a	crime	and	not	for	the	ideas	

which	 they	 contain.”	 	 State	 v.	 Lehman,	 1999	 ME	 124,	 ¶	 13,	 736	 A.2d	 256	

(emphasis	added)(quotation	marks	omitted);	see	also	United	States	v.	Stelten,	

867	F.2d	446,	450-51	(8th	Cir.	1989).	
10	

      [¶17]	 	 Roy	 argues	 that	 the	 warrant	 undermined	 these	 constitutional	

protections	because	it	did	not	sufficiently	limit	the	search	to	illegal	items.		He	

relies	 on	 a	 decision	 of	 the	 Washington	 Supreme	 Court	 invalidating	 a	 search	

warrant	 that	 authorized	 the	 seizure	 of	 “materials	 that	 were	 legal	 to	 possess,	

such	 as	 adult	 pornography	 and	 photographs	 that	 did	 not	 depict	 children	

engaged	in	sexually	explicit	conduct.”		State	v.	Besola,	359	P.3d	799,	800,	803	

(Wash.	2015).		The	court	determined	that	neither	the	warrant’s	reference	to	the	

child	pornography	statute	nor	its	alleged	application	to	images	“material	to	the	

[child	 pornography]	 investigation”	 was	 sufficient	 to	 constitutionally	

circumscribe	the	scope	of	its	authorization.		Id.		

      [¶18]		The	warrant	here	suffers	no	such	deficiency.		Based	on	the	affidavit	

supporting	 the	 application	 for	 issuance	 of	 a	 search	 warrant,	 the	 warrant	

authorized	 the	 seizure	 of	 certain	 items	 because	 there	 was	 probable	 cause	 to	

believe	they	contained	evidence	of	Roy’s	illegal	possession	and	dissemination	

of	 sexually	 explicit	 depictions	 of	 minors,	 not	 because	 of	 any	 particular	 ideas	

they	might	contain.		See	Lehman,	1999	ME	124,	¶	14,	736	A.2d	256.		The	search	

warrant’s	description	of	the	items	to	be	seized	and	the	purpose	for	their	seizure	

did	not	implicate	the	heightened	“scrupulous	exactitude”	standard.	
                                                                                                  11	

       2.	     Sufficient	Particularity		

       [¶19]		Roy	also	contends	that,	even	if	the	scrupulous	exactitude	standard	

does	 not	 apply,	 the	 warrant	 was	 overbroad	 and	 lacked	 the	 particularity	

required	by	the	United	States	and	Maine	Constitutions	because	(1)	it	authorized	

an	expansive	search	of	all	“computers,	portable	electronic	devices	and	digital	

media	of	any	kind”	located	on	any	person	or	at	any	place	on	Roy’s	property	at	

the	 time	 of	 the	 search,	 and	 (2)	 it	 authorized	 a	 search	 for	 and	 seizure	 of	

“collections	of	photographs	or	magazines	containing	images	of	children	and	or	

adolescents.”	 	 “The	 issue	 of	 whether	 [a]	 search	 warrant	 lacks	 the	 required	

specificity	as	to	the	place	and	items	to	be	searched	is	an	issue	of	constitutional	

adequacy	that	we	review	de	novo.”		Id.	¶	7.	

       [¶20]		The	Fourth	Amendment	of	the	United	States	Constitution	requires	

that	a	search	warrant	must	“particularly	describ[e]”	the	places	to	be	searched	

and	 the	 things	 to	 be	 seized.	 	 U.S.	 Const.	 amend.	 IV.	 	 Similarly,	 Maine’s	

Constitution	requires	that	the	warrant	make	a	“special	designation	of	the	place	

to	be	searched,	and	the	.	.	.	thing	to	be	seized.”		Me.	Const.	art.	I,	§	5.3		A	warrant	



   3		Article	1,	section	5,	provides	that:			


       The	people	shall	be	secure	in	their	persons,	houses,	papers	and	possessions	from	all	
       unreasonable	searches	and	seizures;	and	no	warrant	to	search	any	place,	or	seize	any	
       person	or	thing,	shall	issue	without	a	special	designation	of	the	place	to	be	searched,	
12	

must	describe	the	property	with	“such	particularity”	that	the	executing	officer	

can	identify	the	item	to	be	searched	or	seized	“with	certainty”	and	is	left	with	

no	discretion	as	to	what	is	to	be	taken.		Lehman,	1999	ME	124,	¶	8,	736	A.2d	256	

(quotation	marks	omitted).			

         a.	     Description	of	Devices	

         [¶21]		We	have	previously	considered	the	particularity	requirements	of	

warrants	 to	 search	 computer	 files	 in	 child	 pornography	 investigations.	 	 In	

Lehman,	 we	 held	 that	 a	 warrant	 was	 sufficiently	 particularized	 when	 it	

authorized	 the	 search	 of	 “all	 computer	 equipment	 and	 computer	 related	

equipment”	and	software	that	Lehman	would	have	been	able	to	access	when	he	

was	alleged	to	have	taken	sexually	explicit	nude	photographs	of	three	underage	

girls	with	a	digital	camera	and	downloaded	those	photographs	onto	a	computer	

in	his	home.4		Id.	¶¶	2-3,	10.		We	also	rejected	the	argument	that	the	warrant	

should	 have	 been	 limited	 to	 one	 particular	 computer	 in	 Lehman’s	 residence	

that	was	specifically	implicated	by	one	of	the	three	photographed	girls	because	

the	other	two	girls	stated	that	the	images	were	downloaded	to	a	computer	in	



         and	the	person	or	thing	to	be	seized,	nor	without	probable	cause—supported	by	oath	
         or	affirmation.	
      4		The	evidence	included	a	“detached	hard	drive	in	the	basement	of	Lehman’s	house.”		State	v.	

Lehman,	1999	ME	124,	¶	4,	736	A.2d	256.		
                                                                                     13	

his	home,	not	specifying	which	computer	was	used.		Id.	¶	11.		We	concluded	that	

the	 nexus	 between	 the	 evidence	 sought	 and	 the	 places	 to	 be	 searched—all	

computers,	computer-related	equipment,	and	software	in	the	home—was	“as	

specific	 as	 the	 circumstances”	 of	 the	 allegations	 and	 “nature	 of	 the	 activity	

under	 investigation	 permit[ted].”	 	 Id.	 ¶	 10	 (quoting	 Davis	 v.	 Gracey,	

111	F.3d	1472,	1478	(10th	Cir.	1997)).			

      [¶22]		The	First	Circuit	applied	similar	reasoning	when	it	considered	the	

particularity	 of	 a	 warrant	 authorizing	 the	 search	 of	 “[a]ny	 and	 all	 computer	

software	and	hardware	.	.	.	.”		United	States	v.	Upham,	168	F.3d	532,	535	(1st	Cir.	

1999).		There,	the	defendant	was	alleged	to	have	used	a	computer	in	a	home	to	

send	and	receive	files	containing	child	pornography	over	several	months.		Id.	at	

533.	 	 The	 defendant	 argued	 that	 the	 warrant	 was	 too	 broad	 in	 both	 its	

authorization	of	places	to	search	(computer	hardware	and	software)	and	in	the	

scope	of	the	content	it	was	authorized	to	seize	(“any	image”	of	a	minor).		Id.	at	

535,	536	n.1.		Rejecting	both	arguments,	the	court	concluded	that	the	scope	of	

the	warrant	closely	tracked	the	probable	cause	determination	that	a	computer	

had	been	used	to	transmit	the	images,	and	thus	“the	computer	and	all	available	

disks”	 were	 implicated	 by	 that	 determination.	 	 Id.	 at	 535.	 	 The	 court	 also	

concluded	 that,	 despite	 the	 warrant’s	 broad	 authorization,	 it	 was	 sufficiently	
14	

limited	 to	 depictions	 of	 minors	 “engaging	 in	 sexually	 explicit	 conduct	 [as	

defined	 by	 the	 statute].”	 	 Id.	 	 Given	 the	 basis	 for	 the	 probable	 cause	

determination,	 the	 search	 was	 “about	 the	 narrowest	 definable	 search	 and	

seizure	 reasonably	 likely	 to	 obtain	 the	 images”	 and	 “not	 inherently	 more	

intrusive	than	the	physical	search	of	an	entire	house	for	a	weapon	or	drugs.”		Id.			

      [¶23]		Here,	 Roy	 argues	that	the	warrant	is	unconstitutionally	broader	

than	 those	 in	 Lehman	 and	 Upham	 because	 it	 authorized	 the	 seizure	 of	 any	

“[c]omputers,	portable	electronic	devices	and	digital	storage	media	of	any	kind”	

located	 on	 the	 property	 associated	 with	 the	 IP	 address,	 on	 any	 person	 on	 the	

property,	and	in	any	vehicle	on	the	property.		We	disagree.	

      [¶24]		The	digital	world	is	not	a	static	place;	advancements	in	computer	

technology	 continue	 to	 make	 obtaining	 and	 accessing	 illicit	 digital	 files	

increasingly	 easy	 while	 making	 detection	 more	 difficult.	 	 See,	 e.g.,	 United	

States	v.	 Johnson,	 221	 F.3d	 83,	 99	 (2d	 Cir.	 2000);	 United	 States	 v.	 Knowles,	

207	F.	Supp.	 3d	 585,	 591-92,	 604	 (D.S.C.	 2016);	 United	 States	 v.	 Cunningham,	

680	F.	Supp.	2d	844,	856	(N.D.	Ohio	2010).		Thus,	when	considering	the	nature	

and	 circumstances	 of	 Roy’s	 alleged	 illegal	 activity,	 and	 the	 increased	

sophistication	 and	 mobility	 of	 devices	 capable	 of	 downloading,	 storing,	 and	

transmitting	 child	 pornography	 in	 the	 years	 since	 Lehman	 and	 Upham	 were	
                                                                                    15	

decided,	the	warrant’s	description	of	electronic	devices	that	the	officers	were	

authorized	to	search	and	seize	is	not	overly	broad	because	of	its	authorization	

to	 search	 Roy’s	 residence,	 property,	 and	 any	 persons	 and	 vehicles	 on	 his	

property	 at	 the	 time	 of	 the	 search,	 see	 Lehman,	 1999	 ME	 124,	 ¶¶	 10-11,	

736	A.2d	256	(acknowledging	the	inherent	mobility	of	computer	equipment),	

or	because	of	its	authorization	to	seize	 various	electronic	devices	 and	digital	

media,	see	Upham,	168	F.3d	at	533,	535	(concluding	that	the	transmission	of	

images	 depicting	 child	 pornography	 through	 the	 Internet	 from	 an	 account	

linked	to	the	defendant	established	probable	cause	demonstrating	a	“sufficient	

chance	of	finding	some	needles	in	the	computer	haystack”).			

       [¶25]	 	 The	 warrant’s	 authorization	 was	 as	 specific	 and	 limited	 as	 the	

circumstances	 would	 allow	 and	 satisfied	 the	 constitutional	 requirement	 for	

particularity.			

       b.	    Description	of	Photographs	and	Magazines	

       [¶26]		The	warrant	authorized	the	police	to	search	for	and	seize	specified	

items	 believed	 to	 “constitute	 instrumentalities”	 of	 the	 crimes	 of	 illegal	

possession	 and	 dissemination	 of	 sexually	 explicit	 depictions	 of	 minors,	

including	

       [e]vidence	 in	 any	form	suggesting	 a	sexual	interest	in	 minors	and	
       their	 activities.	 	 These	 items	 are	 to	 include	 collections	 of	
16	

      photographs	or	magazines	containing	images	of	children	[and/or]	
      adolescents	.	.	.	.			
	
In	 spite	 of	 this	 limiting	 language,	 Roy	 argues	 that	 the	 warrant	 is	 overbroad	

because	some	photographs	and	magazines	that	contain	images	of	minors	are	

not	evidence	of	criminal	conduct.		We	need	not	reach	this	argument.	

      [¶27]	 	 In	 the	 abstract,	 it	 is	 correct	 that	 possession	 of	 some	 types	 of	

photographs	or	magazines	depicting	a	minor	is	not	criminal	behavior	and	does	

not	have	evidentiary	value.		That	may	not	be	true,	however,	when	the	person	in	

possession	of	such	facially	benign	materials	is	also	engaging	in	criminal	conduct	

involving	 child	 pornography.	 	 On	 this	 appeal,	 we	 need	 not	 determine	 the	

location	of	that	line	because,	even	if	this	aspect	of	the	warrant	is	overbroad,	it	

is	severable	from	the	remaining	portions	of	the	warrant,	which,	for	the	reasons	

explained	 above,	 are	 lawful.	 	 See	 State	 v.	 Simmons,	 2016	 ME	 103,	 ¶¶	 24-25,	

143	A.3d	819.		Electronic	devices	are	“readily	identifiable	and	distinguishable	

from”	photographs	and	magazines	with	images	of	minors,	and	the	information	

contained	 in	 the	 warrant	 about	 devices	 is	 the	 most	 significant	 part	 of	 the	

presentation.	 	 These	 factors	 allow	 legal	 portions	 of	 a	 warrant	 to	 be	 severed	

from	any	illegal	parts	of	it.		See	id.	

      [¶28]		Further,	and	significantly,	the	inventory	of	items	seized	pursuant	

to	 the	 warrant,	 see	 M.R.U.	 Crim.	 P.	 41(g),	 which	 is	 included	 in	 the	 record	
                                                                                        17	

presented	to	the	trial	court,	reveals	that	although	the	police	seized	a	number	of	

devices	and	electronic	parts,	they	did	not	seize	any	photographs	or	magazines.		

This	factor	also	weighs	in	favor	of	severance.		See	Simmons,	2016	ME	103,	¶	26,	

143	 A.3d	 819;	 see	 also	 United	 States	 v.	 Richards,	 659	 F.3d	 527,	 537	 (6th	 Cir.	

2011)	(stating	that	an	“[i]nfirmity	due	to	overbreadth	does	not	doom	the	entire	

warrant;	rather,	it	requires	the	suppression	of	evidence	seized	pursuant	to	that	

part	of	the	warrant,	but	does	not	require	the	suppression	of	anything	described	

in	 the	 valid	 portions	 of	 the	 warrant”	 (alteration	 omitted)	 (emphasis	 added)	

(quotation	marks	omitted)).		Therefore,	overbreadth,	if	any,	in	this	portion	of	

the	warrant	is	severable	from	the	remaining	aspects	of	the	warrant	and	would	

not	require	suppression	of	the	evidence	that	was	seized,	because	the	seizure	

was	wholly	lawful.	

       [¶29]		The	court	did	not	err	in	denying	the	motion	to	suppress.			

       The	entry	is:	

                     Judgment	affirmed.		
	
	      	      	      	      	      	
	
	                           	
18	

Tina	 Heather	 Nadeau,	 Esq.	 (orally),	 The	 Law	 Office	 of	 Tina	 Heather	 Nadeau,	
PLLC,	Portland,	for	appellant	Christopher	W.	Roy	
	
Andrew	S.	Robinson,	District	Attorney,	and	Patricia	A.	Mador,	Asst.	Dist.	Atty.	
(orally),	Lewiston,	for	appellee	State	of	Maine	
	
	
Androscoggin	County	Unified	Criminal	Docket	docket	number	CR-2016-2917	
FOR	CLERK	REFERENCE	ONLY	
