MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2016 ME 103
Docket:   Lin-15-369
Argued:   April 5, 2016
Decided:  July 12, 2016

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



                                 STATE OF MAINE

                                          v.

                                JAMES R. SIMMONS

                                        *****

                                 STATE OF MAINE

                                          v.

                            FREDERICK A. CAMPBELL

HJELM, J.

         [¶1] The State appeals from an order entered by the Superior Court (Lincoln

County, Billings, J.) suppressing evidence of cellular telephone records, seized

pursuant to search warrants, for defendants James R. Simmons and Frederick

Campbell after the court determined that the warrants were not supported by

probable cause. We conclude that the affidavits establish probable cause for the

State to seize those portions of Simmons’s cell phone records relating to historical

cell site location data for June 21, 2012, and we therefore vacate that part of the
2

suppression order. We affirm the remaining aspects of the suppression order as to

Simmons and the order in its entirety as to Campbell.

                                I. BACKGROUND

      [¶2] Kenneth G. MacMaster of the State Fire Marshal’s Office was involved

in the investigation of two structure fires that took place in Friendship on separate

dates in June 2012. One of the fires occurred on property belonging to James

Simmons, and the other occurred on property belonging to Donald Simmons.

MacMaster submitted three separate applications for search warrants, each

supported with an affidavit, to obtain cellular telephone records belonging to

Donald Simmons, James Simmons, James Simmons’s wife, and Campbell. The

first application sought cell phone records of both James Simmons and Donald

Simmons. The second application added a request for Campbell’s cell phone

records. The only relevant change in the third affidavit was that the State now

sought the cell phone records of James Simmons’s wife. The information in the

affidavits supporting the three warrant applications is substantially identical and

includes the following facts.

      [¶3] Donald Simmons and James Simmons, who are not related, are both

commercial fishermen. Campbell is James Simmons’s sternman. James Simmons

told MacMaster that he was involved in a “commercial fishing feud” with Donald

Simmons. According to a marine patrol officer who assisted the Fire Marshal’s
                                                                               3

Office with the investigation, during the course of that feud hundreds of lobster

traps belonging to both men were cut, James Simmons was arrested for criminal

threatening for shooting a rifle “in the direction” of Donald Simmons, and

gunshots were fired at James Simmons’s boat.

      [¶4] The first of the two fires occurred during the early morning hours of

June 10, 2012, and caused significant damage to buildings, along with their

contents, that James Simmons owned and used for his fishing business. The

second fire occurred on June 21 on property owned by Donald Simmons and

destroyed a large boathouse, along with a boat owned by another person, which

was stored inside the boathouse.      That fire was first reported shortly after

10:00 p.m.      The Fire Marshall’s Office determined that both fires were

“incendiary.”

      [¶5] James Simmons told MacMaster that at the time of the June 10 fire that

damaged his property, he was sleeping on his boat in Portland Harbor and learned

about it the next morning when he turned on his telephone and received a text

message from his wife. James Simmons accused Donald Simmons of starting the

June 10 fire. Donald Simmons told MacMaster that he was fishing offshore at the

time of the June 10 fire but believed that the June 21 fire on his property was

started by James Simmons and Campbell in retaliation for the June 10 fire.
4

      [¶6] Donald Simmons’s sternman told investigators that at approximately

8:30 p.m. on June 21, he saw a truck speeding away from the direction of

Donald Simmons’s property, where the fire was reported roughly ninety minutes

later, and that although he could not see who was driving, he was certain that the

vehicle was James Simmons’s. James Simmons’s wife told MacMaster that from

8:30 p.m. that night, she was with James Simmons at their home in Friendship and

that as far as she knew, his truck was in the driveway the entire night. As for

Campbell, another person told MacMaster that on the evening of June 21 Campbell

had been at the home of an acquaintance and left around dark, saying that he would

return, but did not.

      [¶7] The State submitted three applications for search warrants between

June 2012 and February 2013. As the applications related to James Simmons and

Campbell, the State sought to obtain cell phone records relating to the limited

hours surrounding both fires. The requested warrants were for records containing

“[a]ll stored communications and other files reflecting communications;” all files

that had been accessed; “[a]ll connection logs, cellular tower hits and records of

user activity,” including the connection date and time, short message service and

multimedia messaging service use; and “[a]ll records and other evidence . . .

including, without limitation . . . mailing addresses, billing records . . . and any

other identifying information, whether such records or other evidence are in
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electronic or other form.” In the applications, MacMaster stated that the records

for James Simmons and Campbell “will likely reveal the whereabouts of both men

around the time of both [a]rson fires . . . . Potentially, the records could reveal

communications about the incidents and potential accomplice information.”

MacMaster presented the warrant applications to a Maine District Court judge

(Dow, J.), who issued the warrants as requested by the State.

      [¶8] On June 19, 2014, the State filed criminal complaints against James

Simmons and Campbell, charging them each with two counts of arson,

17-A M.R.S. § 802(1)(A), (B)(2) (2015), relating to the June 21 fire on

Donald Simmons’s property. They were subsequently indicted for those crimes.

James Simmons filed a motion to suppress evidence seized as a result of the search

warrants, arguing that the warrants were not supported by a showing of probable

cause. Campbell joined the motion. After a nontestimonial hearing, the court

(Lincoln County, Billings, J.) granted the motion, concluding that the affidavits

failed to establish probable cause to believe that either James Simmons or

Campbell were involved in the June 21 fire.

      [¶9] With the approval of the Attorney General and pursuant to 15 M.R.S.

§§ 2115-A(1), (5) (2015) and M.R. App. P. 2(a)(4) and 21(b), the State timely

appealed.
6

                                         II. DISCUSSION

        [¶10]      The State argues that, contrary to the court’s determination,

MacMaster’s affidavits contained sufficient evidence for the magistrate to find that

there was probable cause to believe that James Simmons and Campbell were

criminally involved in the June 21 fire on Donald Simmons’s property and that cell

phone records of historical cell site location information would contain evidence of

their criminal activity.1 Although the warrants authorized the seizure of recorded

data that include but go beyond historical location information, at oral argument

the State indicated that it is now challenging only the portion of the order

suppressing records of historical cell site location information.

        [¶11] On an appeal from an order granting a motion to suppress evidence

seized pursuant to a search warrant, “we directly review the finding of probable

cause made by the magistrate who issued the warrant.”                            State v. Johndro,

2013 ME 106, ¶ 9, 82 A.3d 820 (footnote omitted). A finding of probable cause

rests on “a practical, commonsense determination whether, given all the

circumstances set forth in the affidavit, there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Id. ¶ 10. In order to meet


    1
      The State also asserts that the court erred when it examined the warrants for a showing of probable
cause instead of the lower standard of reasonable articulable suspicion. The State sought the warrants
based on a probable cause standard, however, and it did not advocate a different standard to the trial
court. The State therefore has not preserved this issue for appellate review. See State v. Blais,
416 A.2d 1253, 1256 n.2 (Me. 1980).
                                                                                    7

the probable cause standard, the affidavit “must set forth some nexus between the

evidence to be seized and the locations to be searched.” State v. Gurney, 2012 ME

14, ¶ 33, 36 A.3d 893 (quotation marks omitted). Such a nexus may be “inferred

from the type of crime” and “the nature of the items sought.” Id. (quotation marks

omitted). Descriptions of noncriminal activity in a search warrant affidavit cannot

support a finding of probable cause unless the warrant also contains allegations of

criminal conduct that “color” the noncriminal activity. See State v. Diamond,

628 A.2d 1032, 1034 (Me. 1993).

      [¶12] Our inquiry on appeal is limited to whether there is a substantial basis

for the probable cause finding. Johndro, 2013 ME 106, ¶ 9, 82 A.3d 820. We

review only the information within the “four corners” of the affidavit, id., but we

do so construing the information in the affidavit in a positive light and allowing for

“reasonable inferences that may be drawn to support the magistrate’s

determination,” id. (quotation marks omitted). Legal conclusions are reviewed de

novo. State v. Cote, 2015 ME 78, ¶ 9, 118 A.3d 805.

      [¶13]   We first consider the State’s challenge to the order suppressing

evidence as to Campbell, and then turn to the suppression of evidence against

James Simmons.
8

A.    Frederick Campbell

      [¶14] The only facts contained in the affidavits bearing on Campbell’s

suspected role in the June 21 fire are that Campbell worked as James Simmons’s

sternman, and that on the night of the fire, he left the house of a friend he was

visiting and expressed an intention to return to the residence but did not do so.

      [¶15]    This is not enough to establish probable cause.          Although the

affidavits may be seen as an attempt to establish a nexus between Campbell’s

employment as James Simmons’s sternman and the ongoing feud between James

Simmons and Donald Simmons, they do not contain allegations of any criminal

activity planned, anticipated, or committed by Campbell that could be used to

“color” the significance of his noncriminal activity. See Diamond, 628 A.2d at

1034. Even when the information in the affidavits is viewed in a positive light

with allowance for all reasonable inferences, see Johndro, 2013 ME 106, ¶ 9,

82 A.3d 820, the information is too meager to support a probable cause

determination that Campbell had anything to do with the June 21 fire, much less a

finding that evidence of criminality would be found in his cell phone records. The

court therefore did not err by concluding that the issuance of the warrant for his

cell phone records violated his constitutional rights.
                                                                                  9

B.    James Simmons

      [¶16] The affidavits did not contain information that would allow a probable

cause determination that James Simmons had any criminal involvement in the

June 10 fire, which occurred on his own property, or that any of his cell phone

records for that night would contain information of criminal activity. The court

therefore correctly suppressed evidence of his cell phones records for June 10.

      [¶17] In contrast, the information contained in the affidavits drawing a

connection between James Simmons and the June 21 fire on Donald Simmons’s

property is sufficiently incriminating to support a probable cause determination

that James Simmons had some criminal involvement in that fire. The affidavits

state that James Simmons was engaged in an overtly and sometimes dangerously

hostile relationship with Donald Simmons. The affidavits also provide information

that on the night of the June 21 fire, Donald Simmons’s sternman saw James

Simmons’s truck traveling at a high rate of speed away from the location of the fire

less than two hours before the fire was reported.        The statement of Donald

Simmons’s sternman calls into question an alibi provided by James Simmons’s

wife that his truck remained parked in their driveway the entire night. James

Simmons’s wife’s statement could reasonably be viewed as an effort to create false

exculpatory information, which itself has an inculpatory effect. Thus, taken as a

whole and viewed in a positive manner toward the finding of probable cause, the
10

information contained in the affidavits is sufficient to indicate that James Simmons

had a significant motivation and opportunity to commit arson, and it supports the

magistrate’s determination that there is probable cause to believe that James

Simmons had some involvement in the June 21 fire.

      [¶18]   Based on the limited challenge the State presents here, the next

question is whether that information also supports the probable cause

determination that evidence of criminal conduct would be found in historical cell

site location records associated with James Simmons’s cellular telephone for

June 21, 2012.

      [¶19]   Evidence of James Simmons’s location at times relevant to the

June 21 fire was clearly important to the investigation and any resulting

prosecution of him for arson.       James Simmons’s wife placed him—and his

vehicle—at their residence during the evening of the fire, but another witness saw

his vehicle being driven away from the location of the fire at a high rate of speed

not long before the fire was reported. Therefore, James Simmons’s whereabouts

on the evening of June 21 is a material issue in the case.

      [¶20] The affidavit contains information that James Simmons possesses and

uses a cellular telephone, because that was the evident means by which he learned

of the fire that damaged his property on June 10, when he received a text message

sent from his wife after he turned on his phone.
                                                                                  11

      [¶21] The technological process that generates cell site location information

has been explained in cases where governmental entities have sought that type of

information. See, e.g., In re Application of the United States for Historical Cell

Site Data, 724 F.3d 600, 613 (5th Cir. 2013); In re Applications of the United

States for Orders pursuant to 18 U.S.C. 2703(d), 509 F. Supp. 2d 76, 78-79

(D. Mass. 2007); In re Application of the United States for an Order Authorizing

the Installation and Use of a Pen Register, 402 F. Supp. 2d 597, 599

(D. Md. 2005). Cell phone providers use cell site towers to provide coverage.

These towers have antennae that receive and transmit signals from cellular

telephones in a given area. When a cell phone is present in areas serviced by

different towers, the phone generally switches to the tower that provides the best

reception. Cell service providers create and maintain records of the location of the

tower used by a cell phone and the time of that use. The purpose of those records

is for the carrier to “perhaps . . . monitor or optimize service on its network or to

accurately bill its customers for the segments of its network that they use.” In re

Application of the United States for Historical Cell Site Data, 724 F.3d at 611-12.

That same information makes it possible to identify at least the general location of

a cell phone at the time the phone connects to a tower. See generally id. at 613-14;

United States v. Graham, 846 F. Supp. 2d 384, 392 (D. Md. 2012) (noting that

historical cell site location data “only reveal[s] which cellular towers were used to
12

route a particular call. By extension, this information can only reveal the general

vicinity in which a cellular phone is used.”); Aaron Blank, The Limitations and

Admissibility of Using Historical Cellular Site Data to Track the Location of a

Cellular Phone, 18 Rich J.L. & Tech. 3, 5-8 (2011).

      [¶22] For that reason, historical cell site location data for James Simmons’s

cell phone could be expected to have evidentiary value, because those data could

be reasonably expected to provide information about his approximate location and

travel route at the times relevant to the June 21 fire. Therefore, we conclude that

the affidavits presented to the magistrate, when read in a positive light, contain

sufficient information to allow a probable cause determination that evidence of

criminal conduct would be found in historical cell site location records for James

Simmons’s cellular telephone for June 21, 2012.

C.    Severability of the Search Warrant

      [¶23] The remaining issue arises from the State’s election not to challenge

the order suppressing evidence of James Simmons’s cell phone records other than

those records that provide historical cell site location information for June 21. In

effect, the State has confessed error concerning portions of the warrants, which the

court later determined were issued improperly.        We therefore must consider

whether the unconstitutional portions of the warrants fatally taint the portions of

the warrants that survive scrutiny. Although the trial court did not reach this issue
                                                                                  13

because of its comprehensive order of suppression, we consider the severability of

a warrant as a question of law. See Cote, 2015 ME 78, ¶ 9, 118 A.3d 805; see also

United States v. Soussi, 29 F.3d 565, 568 (10th Cir. 1994) (stating that appellate

review of the severability of a warrant is a determination of law that is reviewed de

novo).

      [¶24]   When a search warrant is wholly unconstitutional or otherwise

invalid, total suppression of the evidence seized is generally the appropriate

remedy. See United States v. Sells, 463 F.3d 1148, 1154 (10th Cir. 2006); State v.

Drown, 2007 ME 142, ¶ 7, 937 A.2d 157 (“Pursuant to the exclusionary rule,

evidence obtained in violation of a defendant’s right to be free from unreasonable

searches and seizures must be excluded at trial.”). As is recognized by the “weight

of authority,” however, if only portions of a search warrant are unsupported, a

court may sever those portions of the warrant from the properly issued portions,

thereby ordering partial suppression. United States v. Riggs, 690 F.2d 298, 300-01

(1st Cir. 1982) (stating that “virtually every state court” has adopted the remedy of

partial suppression); see also United States v. Sears, 411 F.3d 1124, 1129 (9th Cir.

2005). As one commentator has explained, “it would be harsh medicine indeed if a

warrant issued on probable cause and particularly describing certain items were to

be invalidated in toto merely because the affiant and magistrate erred in seeking

and permitting a search for other items as well.” 2 Wayne R. LaFave et al.,
14

Search and Seizure: A Treatise on the Fourth Amendment, § 4.6(f) at 815 (5th ed.

2012).

      [¶25]     As a predicate to the partial suppression of evidence, the

constitutional aspects of the warrant must be readily identifiable and

distinguishable from the unsupported portions of the warrant, see United States v.

Spilotro, 800 F.2d 959, 967-68 (9th Cir. 1986), so that the former are “textually

severable,” id. at 968.     Additionally, if the proper scope of the warrant is

“relatively insignificant” in proportion to the invalidated portions, severance may

not be warranted. Sears, 411 F.3d at 1130 (quotation marks omitted).

      [¶26] Here, although the relative quantities of admissible and suppressed

evidence cannot be determined meaningfully from the record, the valid portion of

the search warrants, which authorizes the seizure of historical cell site location data

for June 21, is sufficiently particularized and readily distinguishable from the

portions of the warrant that the court properly suppressed. See Spilotro, 800 F.2d

at 967. This weighs significantly in favor of severance.

      [¶27] Further, when it sought the warrants, the State made a showing that

likely exceeded what was necessary under applicable law. Pursuant to the Stored

Wire and Electronic Communications and Transactional Records Access Act

(SCA), see 18 U.S.C.S. §§ 2701-2712 (LEXIS through Pub. L. No. 114-183), the

State may well have been entitled to obtain the same noncontent information at
                                                                                    15

issue here, but with a lesser showing than is required by the conventional warrant

process, which the State chose to invoke.         See id. § 2703(c)(1)(A)-(B), (d).

Pursuant to the SCA, in order to seize noncontent records such as historical cell

site location data, a governmental entity must demonstrate either probable cause

for a warrant, id. § 2703(c)(1)(A), or “specific and articulable facts showing that

there are reasonable grounds to believe that the contents of a wire or electronic

communication, or the records or other information sought, are relevant and

material to an ongoing criminal investigation” for a court order, id. § 2703(d).

See United States v. Graham, No. 12-4659, No. 12-4825, 2016 U.S. App. LEXIS

9797, at *7 (4th Cir. May 31, 2016) (en banc). A showing, based on “specific and

articulable facts,” that the requested records are “relevant and material” is less than

the showing needed to meet the probable cause standard. Graham, 2016 U.S. App.

LEXIS 9797 at *13-*14 (holding that a governmental entity’s acquisition of

historical cell site location information from a defendant’s cell phone provider

pursuant to section 2703(d) orders does not violate the Fourth Amendment and

stating that “every other federal appellate court” and “the vast majority of federal

district court judges” have come to the same conclusion); see In re Application of

the United States for Historical Cell Site Data, 724 F.3d at 608-15 (holding that in

contrast to content and tracking information, historical cell site information

contained in a carrier’s business records does not give rise to full Fourth
16

Amendment protections to the caller); In re Application of the United States for an

Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the

Gov’t, 620 F.3d 304, 313 (3d Cir. 2010).

      [¶28] Here, because the State sought a warrant based on a probable cause

standard, it assumed a greater burden than was required pursuant to the SCA, and

in doing so, the State—by inadvertence or otherwise—triggered a process that

likely gave Simmons a greater level of protection than might have been available

to him had the State sought a court order pursuant to section 2703(d) of the SCA.

      [¶29] The purpose of the exclusionary rule is to deter police misconduct and

prevent the State from benefitting from that misconduct by foreclosing the State’s

opportunity to use illegally obtained evidence against the accused at trial. State v.

Bailey, 2012 ME 55, ¶ 16, 41 A.3d 535. Here, the State made a probable cause

showing to obtain warrants allowing the seizure of historical cell site location data

for June 21. Although a component of the warrant was not supported by probable

cause, the State’s invocation of a warrant application process that was favorable to

James Simmons is a factor that diminishes the justification to impose a remedy

designed to discourage malfeasance.        Perhaps more importantly, the lawful

portions of the warrant are readily severable from the rest, allowing the court to

identify what evidence can be appropriately used at trial and what evidence the

State cannot use because of the excessive scope of the warrant.
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      [¶30] In light of the established principle that favors severance and the

suitability of severance in the circumstances of this case, we conclude that

evidence of historical cell site location data obtained pursuant to the warrants for

James Simmons’s June 21 cell phone records may be properly severed from the

unconstitutionally broad aspects of the warrants.      The evidence that the State

obtained properly is therefore not subject to suppression.

                                III. CONCLUSION

      [¶31] We recognize the tension between Fourth Amendment protections and

modern technological developments that affect and often intrude into privacy

rights, see Kyllo v. United States, 533 U.S. 27, 33-34 (2001), as well as the

evolving nature of the law in the present context, see In re Application of the

United States for Historical Cell Site Data, 724 F.3d at 614. Our holding today

applies only to warrants authorizing the seizure of a limited category of business

records of past events and does not extend to other types of information that create

greater levels of intrusion into personal privacy, such as contemporaneous tracking

data and communications content. Here, the State presented sufficient information

for a magistrate to make a probable cause determination allowing the seizure of

records of historical cell site location data for James Simmons’s cellular telephone

for June 21, 2012. That evidence was seized without injury to James Simmons’s
18

constitutional rights and is admissible, even though other portions of the warrant

were issued improperly.

        The entry is:

                           That portion of the order suppressing evidence of
                           historical cell site location data contained in James
                           Simmons’s cell phone records for June 21, 2012, is
                           vacated. The suppression order is affirmed in all
                           other respects. The case is remanded for further
                           proceedings.



On the briefs and at oral argument:

        Katie R. Hollstrom, Asst. Dist. Atty., District Attorney’s Office,
        Wiscasset, for appellant State of Maine

        Steven C. Peterson, Esq., West Rockport, for appellee James R.
        Simmons

        Peter E. Rodway, Esq., Rodway & Horodyski, P.A., Portland,
        for appellee Frederick A. Campbell



Lincoln County Superior Court docket numbers CR-2014-171 and CR-2014-172
FOR CLERK REFERENCE ONLY
