MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 87
Docket:   Ken-14-346
Argued:   June 16, 2015
Decided:  July 16, 2015

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.


                                STATE OF MAINE

                                         v.

                              STEVEN W. BRAGDON

MEAD, J.

         [¶1] Steven W. Bragdon appeals from a judgment of conviction entered by

the trial court (Murphy, J.) following his conditional guilty plea to a charge of

possession of sexually explicit materials (Class C), 17-A M.R.S. § 284(1)(C)

(2014). Bragdon contends that the court (Billings, J.) erred in denying his motion

to suppress evidence derived from internet service provider (ISP) records that the

State obtained with a grand jury subpoena. He asserts that the State was required

to use the procedure set forth in 5 M.R.S. § 200-B (2014) to obtain the records, and

that its failure to do so violated his right to due process. The State contends that

section 200-B creates an alternative, not exclusive, method for it to use in seeking

ISP records, and that even in the event of a violation of the statute, the

exclusionary rule does not apply.       Because we agree with the State’s first

contention, we affirm the judgment without reaching the second.
2

                                     I. BACKGROUND

        [¶2]   The facts were stipulated at the hearing on Bragdon’s motion to

suppress or are otherwise not disputed. In April 2013, the Maine State Police

Computer Crimes Unit (CCU), which routinely investigates activity involving the

distribution of child pornography, began an investigation into suspicious activity

involving a particular internet protocol (IP) address; FairPoint Communications

was the ISP for that address.

        [¶3]   In May 2013, the Attorney General’s Office, pursuant to M.R.

Crim. P. 17(c),1 issued a grand jury subpoena to FairPoint concerning the

suspected IP address, commanding FairPoint to appear before the Kennebec

County Grand Jury and produce information about the subscriber as of the time

that the suspicious activity was observed. The State did not seek prior judicial

authorization before issuing the subpoena. In response to the subpoena, FairPoint

produced records identifying the IP address as one assigned to Bragdon at his

home address in Waterville.

        [¶4] Detectives from the CCU met with Bragdon at his home and obtained

his consent to seize and search computer-related items. After receiving notice

from Bragdon’s attorney that Bragdon was revoking his consent to search the

    1
     The Maine Rules of Criminal Procedure have since been superseded by the Maine Rules of Unified
Criminal Procedure. 2014 Me. Rules 16 (effective in Kennebec County on April 1, 2015);
see M.R.U. Crim. P. 17.
                                                                                     3

items, officers obtained a warrant and completed the search, during which they

discovered evidence that led the grand jury to indict Bragdon on March 27, 2014.

        [¶5] Bragdon moved to suppress the evidence found during the search on

the ground that the State had not followed the procedure set out in 5 M.R.S.

§ 200-B(2), which provides:

        The Attorney General, a deputy attorney general or a district attorney
        may demand, in writing, all the records or information in the
        possession of the public utility or Internet service provider relating to
        the furnishing of public utility services or Internet services to a person
        or a location if the attorney has reasonable grounds to believe that the
        services furnished to a person or to a location by a public utility or
        Internet service provider are being or may be used for, or to further,
        an unlawful purpose.

        Records of utility services, as applied to Internet service providers, are
        limited to the following information and records in the possession of
        the Internet service provider: the subscriber’s or customer’s name,
        address, local and long-distance telephone billing records, telephone
        number or other subscriber number or identity and length of time the
        services have been provided to the subscriber or customer.

        Upon a showing of cause to any Justice of the Superior Court or Judge
        of the District Court, the justice or judge shall approve the demand.
        Showing of cause must be by the affidavit of any law enforcement
        officer.

(Emphasis added).

        [¶6] The Superior Court (Billings, J.) held a hearing and denied the motion.

Bragdon entered a conditional guilty plea pursuant to M.R. Crim. P. 11(a)(2),2


  2
      See also M.R.U. Crim. P. 11(a)(2).
4

preserving his right to appeal from the denial of the motion to suppress. The court

(Murphy, J.) entered judgment and imposed a sentence of three years’

imprisonment, with all but sixty days suspended, and two years of probation. This

appeal followed.

                                II. DISCUSSION

      [¶7] Bragdon contends that (1) the Superior Court erred in denying his

motion to suppress because section 200-B provides the exclusive method by which

the State can seek ISP records, and (2) it was therefore a violation of his due

process rights for the State to obtain the records through the use of a grand jury

subpoena. The court found that there was no violation of section 200-B because

the statute’s unambiguous use of the permissive “may” means that it provides an

alternative way to seek ISP records, not the exclusive method for doing so.

      [¶8] The court’s finding that the statute is unambiguous is well-supported.

See Beckford v. Town of Clifton, 2014 ME 156, ¶ 9, 107 A.3d 1124 (stating that a

statute is to be construed de novo, with an examination beyond its plain meaning

“only if it is ambiguous” (quotation marks omitted)). Section 200-B(2), like the

rule of criminal procedure allowing a grand jury to issue a subpoena to obtain

documentary evidence from a nonparty, uses the permissive “may.” 5 M.R.S.

§ 200-B(2); M.R.U. Crim. P. 17A(a). That common word means “[t]o be allowed

or permitted to,” in contrast to another common word, “must,” which means “[t]o
                                                                                5

be required or obliged by law.” Webster’s II New College Dictionary 677, 722

(2001); see State v. Brown, 2014 ME 79, ¶ 13 n.5, 95 A.3d 82 (“Unless the statute

itself discloses a contrary intent, words in a statute must be given their plain,

common, and ordinary meaning, such as people of common intelligence would

usually ascribe to them.” (quotation marks omitted)).

       [¶9] Had it wished, the Legislature could have made the section 200-B

procedure mandatory by saying that if the State seeks to obtain records from an

ISP, then it must comply with the statute.      Nothing in the language that the

Legislature chose says that, however. See State v. Adams, 2014 ME 143, ¶ 8,

106 A.3d 413 (“Statutory interpretation is a matter of law in which our primary

purpose is to give effect to the intent of the Legislature. . . . If the statutory

language is clear and unambiguous, we construe the statute in accordance with its

plain meaning . . . .” (citation and quotation marks omitted)).        When the

Legislature intends to limit law enforcement’s access to information to particular

methods, it knows how to do so.          See, e.g., 16 M.R.S. § 642(1) (2014)

(“A government entity may obtain portable electronic device content information

directly from a provider of electronic communication service only in accordance

with a valid warrant issued by a duly authorized justice, judge or justice of the

peace . . . .”).
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        [¶10] Bragdon makes too great a leap in asking us to construe the ordinary

meaning of “may” to mean that the State must use the statutory method and is

therefore barred from using a grand jury subpoena. We conclude that had the

Legislature intended to curtail such a well-established and commonly-used

practice, it would have said so. The trial court was therefore justified in finding

that in this case “may” means “may.” Because the statute is unambiguous, and the

court correctly applied its plain meaning, it did not err in denying the motion to

suppress.

        The entry is:

                           Judgment affirmed.



On the briefs and at oral argument:

        Darrick X. Banda, Esq., Law Offices of Ronald W. Bourget,
        Augusta, for appellant Steven W. Bragdon

        Maeghan Maloney, District Attorney, Prosecutorial District IV,
        Augusta, for appellee State of Maine



Kennebec County Superior Court docket number CR-2013-676
FOR CLERK REFERENCE ONLY
