MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision: 2019 ME 140
Docket:   Kno-18-220
Argued:   February 5, 2019
Decided:  August 29, 2019

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



                                        STATE OF MAINE

                                                  v.

                                    MICHAEL J. WARNER II


SAUFLEY, C.J.

         [¶1] The State appeals from the combined order of the Superior Court

(Cumberland, Kennebec, and Knox Counties, Murphy, J.) granting Michael

J. Warner II’s motion to suppress evidence obtained pursuant to (1) a search

warrant for Warner’s cell phone account data authorized by Judge Dow on

September 9, 2015, and (2) a search warrant for codefendant Taylor Shultz’s

cell phone account data authorized by Justice Mills on September 14, 2015.1

The State argues that Warner lacked standing to challenge the warrant issued

to search Shultz’s account data and that the court (Murphy, J.) erred in

determining that neither search warrant was supported by probable cause.



  1   Neither Taylor Shultz nor Charles York, another codefendant, is a party to this appeal.
2

Because we conclude that (1) the affidavit for the September 9, 2015, warrant

to search Warner’s account data was supported by probable cause, and

(2) Warner lacked standing to challenge the September 14, 2015, warrant to

search Shultz’s account data, we vacate the order to the extent that it

suppresses the evidence obtained through those two warrants.

                                I. BACKGROUND

      [¶2] The following facts are drawn from the affidavit in support of an

application, dated September 9, 2015, for a warrant to search Warner’s cell

phone account data. See State v. Nunez, 2016 ME 185, ¶ 20, 153 A.3d 84.

      [¶3] On July 30, 2015, a deputy of the Kennebec County Sheriff’s Office

responded to a reported burglary at Tobey’s Grocery in China, Maine. An

employee at Tobey’s Grocery showed the deputy video surveillance footage of

the store at the time of the burglary. The footage showed two men running

from a park-and-ride near Tobey’s Grocery to propane tanks next to the store.

One individual was wearing dark pants, a dark hooded sweatshirt, gloves, a

camouflage face mask and hat, and dark shoes with white on the sides of the

soles. That individual pried open a back door to the store, kicked the office door

open, found cash, took it, and then left. During this time, the surveillance video
                                                                              3

showed a small, dark-colored, four-door car, believed to be a Volkswagen,

moving through the Tobey’s Grocery parking lot.

      [¶4] A Maine State Police trooper and his partner arrived at the scene to

assist the deputy, and one of them noted the similarity between the burglary at

Tobey’s Grocery and a number of other commercial burglaries that had

occurred in the area.

      [¶5] Later that day, the same trooper received a report from a manager

at Tobey’s Grocery that an employee of Cumberland Farms in Brunswick had

reported finding a blue money bag with checks written out to Tobey’s Grocery

in the dumpster near the gas pumps. The trooper and his partner went to the

Cumberland Farms store, collected the money bag, and watched the store’s

video surveillance footage. In that footage, a Volkswagen sedan pulled up in

front of the store at 12:54 a.m. on July 30, 2015. Three men exited the vehicle.

Two of the men walked into the store while the driver removed some items

from the trunk, walked to a dumpster near the gas pumps, and returned

without the items in his hands. The driver then walked into the store. From

the video, the trooper was able to identify the driver as Warner. Before leaving

Cumberland Farms, the trooper and his partner checked the dumpster and
4

found a second money bag, a size-13 black sneaker, and a blue hooded

sweatshirt.

        [¶6] The trooper forwarded photographs of the other two individuals

from the Cumberland Farms surveillance footage to the Biddeford Police

Department. The Biddeford police were able to identify one of the individuals

as Shultz.

        [¶7] The trooper then learned through a motor vehicle check that

Warner had a four-door, 2003 Volkswagen Passat registered in his name “that

matche[d] the description of the Volkswagen seen at the Cumberland Farms

store and at Tobey’s Grocery during the burglary.” On July 22, 2015, shortly

before the crimes at issue here, a Biddeford police officer had conducted a

motor vehicle stop of Warner, who had been driving a green Volkswagen

Passat. At that time, Warner and the third suspect2 had been on probation for

burglary and theft, and Shultz had been the subject of an active arrest warrant

for failure to appear and had been subject to conditions of release. In addition,

Warner had prior convictions in 2004, 2005, and 2011, for aggravated criminal




    2The affidavit identified this third suspect as someone other than Charles York, but evidence
discovered later resulted in the charges being brought against York.
                                                                                                     5

mischief, possession of burglary tools, burglary, unlawful trafficking in

scheduled drugs, and possession of scheduled drugs.

       [¶8] The investigating trooper learned Warner’s cell phone number from

Warner’s probation officer. On September 9, 2015, the Biddeford officer

conducted a second motor vehicle stop of the same vehicle, owned and

operated by Warner, at which time Warner gave the officer the same phone

number that Warner’s probation officer had provided to the trooper.

       [¶9] Based on the above facts, on September 9, 2015, pursuant to the

Stored Communications Act, 18 U.S.C.S. § 2703(a), (b)(1)(A), (c)(1)(A) (LEXIS

through Pub. L. No. 116-39), and 16 M.R.S. §§ 642(1) and 648 (2015),3 in

accordance with 15 M.R.S. § 55 (2015),4 a detective of the Kennebec County

Sheriff’s Office applied for a warrant to obtain and search records from wireless

provider AT&T Mobility that were associated with Warner’s cell phone account

from July 30, 2015, to September 9, 2015—including, among other things, voice

mail, text, and multimedia messages; text messaging logs, including the date

and time of messages; text content; the telephone numbers associated with


   3 Title 16 M.R.S. §§ 642(1) and 648 have since been amended, though the amendments are not
relevant in the present case. See P.L. 2017, ch. 144, §§ 4, 5 (effective June 8, 2017) (codified at
16 M.R.S. §§ 642(1), 648 (2018)).
   4 Title 15 M.R.S. § 55 has since been amended, though the amendment is not relevant in the
present case. See P.L. 2017, ch. 144, § 2 (effective June 8, 2017) (codified at 15 M.R.S. § 55 (2018)).
6

incoming and outgoing text messages and telephone calls;5 and “PING”

information to assist in identifying the device’s location. A judge (Dow, J.)

issued the search warrant.

        [¶10] On September 14, 2015, the investigating Maine State Trooper

applied for a warrant to obtain and search records from Verizon Wireless that

contained the same types of information associated with Shultz’s cell phone

account from July 1, 2015, to September 14, 2015. The affidavit was largely

identical to the affidavit seeking to search Warner’s data, supplemented with

some additional facts, most of which were based on evidence obtained through

the search of Warner’s account data. A judge (Mills, J.) issued the warrant as

requested by the State.

        [¶11] On September 24, 2015, Warner was charged by complaint with

receiving stolen property (Class B), 17-A M.R.S. § 359(1)(B)(1)(2018). Warner

was then indicted on a total of thirty-three crimes allegedly committed across

three different counties.6



    5Although some of the listed information, such as the numbers associated with incoming and
outgoing telephone calls, may have been obtainable without a warrant, see Johnson v. Duxbury,
No. 18-2098, 2019 U.S. App. LEXIS 22426, at *9-13 (1st Cir. July 29, 2019), this consideration is not
material to our analysis, and we do not discuss the issue further.
    6Specifically, on December 11, 2015, Warner was charged by indictment in Cumberland County
with five counts of burglary (Class B), 17-A M.R.S. § 401(1)(B)(5) (2018); six counts of aggravated
criminal mischief (Class C), 17-A M.R.S. § 805(1)(A), (2) (2018); three counts of theft by unauthorized
                                                                                                     7

       [¶12] About a year later, in September 2016, Warner, Shultz, and York

filed motions to suppress certain evidence, including all evidence obtained as a

result of the search warrants issued on September 9, 2015, for Warner’s cell

phone account data and on September 14, 2015, for Shultz’s cell phone account

data, arguing that the warrants were not supported by probable cause. Warner,

Shultz, and York also requested that, if the court determined that the affidavits

presented to search the account data were supported by probable cause, the

court conduct a Franks v. Delaware hearing to determine whether the detective

or the trooper deliberately or with reckless disregard for the truth made false

statements in his affidavit. 438 U.S. 154, 171-72 (1978).

       [¶13] On December 14, 2016, the Superior Court (Murphy, J.) held a

nontestimonial hearing and, after determining that the defendants made a

sufficient preliminary showing to justify a hearing, held a three-day hearing for



taking (Class B), 17-A M.R.S. § 353(1)(B)(1) (2018); and one count of theft by unauthorized taking
(Class C), 17-A M.R.S. § 353(1)(B)(4) (2018).

   On December 17, 2015, Warner was charged by indictment in Kennebec County with two counts
of burglary (Class C), 17-A M.R.S. § 401(1)(A) (2018); one count of theft by unauthorized taking
(Class B), 17-A M.R.S. § 353(1)(B)(1); one count of theft by unauthorized taking (Class C), 17-A M.R.S.
§ 353(1)(B)(4); one count of aggravated criminal mischief (Class C), 17-A M.R.S. § 805(1)(A), (2); and
one count of criminal mischief (Class D), 17-A M.R.S. § 806(1)(A), (2) (2018).

   On February 3, 2016, Warner was charged by indictment in Knox County with two counts of theft
by unauthorized taking (Class B), 17-A M.R.S. § 353(1)(B)(1); two counts of theft by unauthorized
taking (Class C), 17-A M.R.S. § 353(1)(B)(4); four counts of burglary (Class B), 17-A M.R.S.
§ 401(1)(B)(5); and four counts of criminal mischief (Class D), 17-A M.R.S. § 806(1)(A), (2).
8

purposes of both the Franks issue and the motions to suppress on February 8,

April 28, and May 19, 2017. In an order dated March 15, 2018, the court

rejected all claims for relief under Franks v. Delaware, finding that the affiants

had not intentionally or recklessly disregarded the truth in their affidavits.

      [¶14]    The court also ruled on the motions to suppress in the

March 15, 2018, order.      The court held that Warner had a reasonable

expectation of privacy in his cell phone account data. Although the State argued

that Warner lacked standing to challenge the warrant issued for Shultz’s

account data, the court concluded that he did have standing to challenge that

warrant because information gathered from Warner’s own account data was

included in the affidavit supporting the application for a warrant to search

Shultz’s account data.

      [¶15] The court determined that both warrants were defective and

invalid because they failed to articulate the nexus between the crime and the

place to be searched—i.e., the cell phone records—stating that “there was not

information sufficient for a finding of probable cause to believe that

particularized evidence [of a crime] could be found on Warner or Shultz’s cell

phones.” See State v. Gurney, 2012 ME 14, ¶ 33, 36 A.3d 893.
                                                                                                     9

       [¶16] The State filed a motion to clarify, for further findings of fact and

conclusions of law, and for reconsideration of the decision to suppress

evidence. See M.R.U. Crim. P. 41A(d). In clarifying its original analysis, the court

confirmed its holding and found certain other facts that Warner asserted in his

response to the State’s motion for further findings of facts. It also clarified that,

because it found that the warrants were “facially deficient,” the good faith

exception to the exclusionary rule did not apply.

       [¶17] With the written approval of the Attorney General, the State timely

appealed. 15 M.R.S. § 2115-A(1) (2018); M.R. App. P. 2B(b)(1), 21(b).7

                                         II. DISCUSSION

       [¶18]      The State argues that the court erred by failing to show

appropriate deference to the judge who issued the search warrant dated

September 9, 2015, for Warner’s cell phone account data. When reviewed with

proper deference, the State argues, the affidavit provides a substantial basis for

the warrant judge’s findings that there was probable cause to believe that

Warner’s cell phone account data contained evidence of a crime.



   7 Although interlocutory, “[a]n appeal may be taken by the State in criminal cases on questions of

law . . . [f]rom an order of the court prior to trial which suppresses any evidence, including, but not
limited to, physical or identification evidence or evidence of a confession or admission,” as long as
the Attorney General provides written approval. 15 M.R.S. § 2115-A(1), (5) (2018). Warner does not
argue that this appeal is either unripe for appellate review or untimely.
10

      [¶19] The Fourth Amendment to the United States Constitution and

article 1, section 5 of the Maine Constitution require a showing of probable

cause, as supported by oath or affirmation, before a search warrant may be

issued. Gurney, 2012 ME 14, ¶ 31, 36 A.3d 893; State v. Reese, 2010 ME 30, ¶ 11,

991 A.2d 806. “[T]he term ‘probable cause,’ according to its usual acceptation,

means less than evidence which would justify condemnation . . . . It imports a

seizure made under circumstances which warrant suspicion.” Illinois v. Gates,

462 U.S. 213, 235 (1983) (quotation marks omitted).          Probable cause is

satisfied when, based on the totality of the circumstances, the warrant

application “set[s] forth some nexus between the evidence to be seized and the

locations to be searched.” Gurney, 2012 ME 14, ¶ 33, 36 A.3d 893 (quotation

marks omitted). “The nexus need not, and often will not, rest on direct

observation, but rather can be inferred from the type of crime, the nature of the

items sought, the extent of an opportunity for concealment and normal

inferences as to where a criminal would hide [evidence of a crime].” Nunez,

2016 ME 185, ¶ 25, 153 A.3d 84 (alteration in original) (emphasis added)

(quotation marks omitted).

      [¶20] The “totality of the circumstances” test applicable when evaluating

whether there is probable cause for a search “requires a practical,
                                                                               11

common-sense decision whether, given all the circumstances set forth in the

affidavit . . . including the veracity and basis of knowledge of persons supplying

hearsay information, there is a fair probability that contraband or evidence of

a crime will be found in a particular place.” Gurney, 2012 ME 14, ¶ 32,

36 A.3d 893 (quotation marks omitted). The test, as set forth by the Supreme

Court of the United States in Illinois v. Gates, requires a jurist considering a

warrant affidavit to “deal with probabilities.” 462 U.S. at 231 (quotation marks

omitted).   Assessing probabilities is “not technical” but rather calls for

consideration of the “factual and practical considerations of everyday life on

which reasonable and prudent [people], not legal technicians, act.”            Id.

(quotation marks omitted); see State v. Mariner, 2017 ME 102, ¶ 13,

162 A.3d 241.

      [¶21] When the State appeals from the suppression of evidence seized

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

made by the issuing judge or magistrate. State v. Simmons, 2016 ME 103, ¶ 11,

143 A.3d 819. The Supreme Court of the United States has established that

      after-the-fact scrutiny by courts of the sufficiency of an affidavit
      should not take the form of de novo review. A magistrate’s
      determination of probable cause should be paid great deference by
      reviewing courts. A grudging or negative attitude by reviewing
      courts towards warrants is inconsistent with the Fourth
      Amendment’s strong preference for searches conducted pursuant
12

      to a warrant; courts should not invalidate warrant[s] by
      interpreting affidavit[s] in a hypertechnical, rather than a
      commonsense, manner.

Gates, 462 U.S. at 236 (citations omitted) (quotation marks omitted).

Accordingly, our review of probable cause is “limited to determining whether

the issuing magistrate had a ‘substantial basis’ to issue the warrant, drawing all

reasonable inferences in favor of probable cause.” Nunez, 2016 ME 185, ¶ 30,

153 A.3d 84. This review is confined exclusively to the information within the

four corners of the affidavit, and it is not a de novo review. Id. ¶¶ 18, 20, 30.

      [¶22] In this case, the detective submitted an affidavit in support of his

request for a search warrant for Warner’s cell phone account data that did not

explicitly articulate the direct link between Warner’s cell phone account data

and a crime—in other words, the detective did not explain in the affidavit why

the cell phone data had evidentiary value. There is essentially no dispute,

however, that the affidavit provided probable cause to believe that (1) Warner

and Schultz had engaged in a burglary with another person; (2) Warner and

Schultz had coordinated their movements and activities in committing the

burglary; (3) Warner had an identified cell phone number; and (4) Warner had

multiple prior convictions, several of which related to burglaries.
                                                                                                    13

        [¶23] What the affidavit lacked was an explicit statement that, in the

experience of law enforcement, cell phones are often used to arrange meetings

or to coordinate or plan a multi-person burglary, and that the cell phone

records may therefore contain evidence of that contact and of the suspected

burglars’ whereabouts when the crimes occurred.

        [¶24] Accordingly, our role on appeal is to determine whether that

connection between the cell phones and the suspected criminal conduct could

reasonably be inferred by the judge issuing the search warrant. See id. ¶ 30. In

a world where cell phones are in the possession of the vast majority of

individuals,8 where cell phone information can sometimes be obtained without

a search warrant,9 and where Maine judges routinely hear evidence that

individuals have planned or coordinated criminal activities through the use of

cell phones,10 the inference made by the judge here was entirely reasonable. In

short, the affidavit set forth facts that allowed the issuing judge to infer from


   8     See Riley v. California, 573 U.S. 373, 395 (2014) (“[M]any of the more than 90% of American
adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives
. . . .”).
   9 See 18 U.S.C.S. § 2703 (LEXIS through Pub. L. No. 116-39) (authorizing certain disclosures of

wire or electronic communications information without a warrant); see also State v. Pagnani,
2018 ME 129, ¶ 19, 193 A.3d 823 (holding that exceptions to the warrant requirement apply to cell
phone information).
   10See, e.g., State v. Journet, 2018 ME 114, ¶ 4, 191 A.3d 1181; State v. Lopez, 2018 ME 59, ¶ 8,
184 A.3d 880; State v. Lemay, 2012 ME 86, ¶ 7, 46 A.3d 1113.
14

the totality of the circumstances that Warner’s cell phone account data would

produce evidence of Warner’s involvement in the Tobey’s Grocery burglary.

      [¶25] The affidavit was replete with detailed facts that linked Warner to

the burglary at Tobey’s Grocery.       Warner was identified as one of the

individuals at Cumberland Farms where evidence from the crime was

discarded, and Warner had a Volkswagen Passat that matched both the

description of the car at the burglary and the description of the car observed in

the video surveillance from Cumberland Farms. Warner also had a long

criminal history, including a history of committing burglaries. See State v.

Arbour, 2016 ME 126, ¶ 15 n.11, 146 A.3d 1106 (“‘An affiant’s knowledge of the

target’s prior criminal activity or record clearly is material to the probable

cause determination.’” (quoting United States v. Taylor, 985 F.2d 3, 6 (1st Cir.

1993)) (citing State v. Gallant, 531 A.2d 1282, 1284 (Me. 1987))). Warner was

identified as one of three individuals at Cumberland Farms where evidence of

the crime was discovered, not long after at least two individuals burglarized

Tobey’s Grocery.

      [¶26] Because the crime was alleged to have been committed by more

than one individual, the issuing judge could reasonably infer that the

individuals conferred about the crime and that their cell phone account data
                                                                              15

would contain evidence of the crime. Cf. Riley v. California, 573 U.S. 373, 385

(2014) (observing that cell phones are “such a pervasive and insistent part of

daily life that the proverbial visitor from Mars might conclude they were an

important feature of human anatomy”). From the totality of these facts—the

multiple individuals seen together near the hours of the crime, all with criminal

histories, with one of them owning a vehicle matching both the description of

the car at the scene of the crime and the description of the car observed at a

location where discarded evidence of the crime was found—the judge could

reasonably determine that Warner’s cell phone account data would produce

evidence—for instance, text messages, voicemail messages, call history, and

location information—that could demonstrate his involvement in the crime.

Drawing all reasonable inferences in favor of probable cause, we conclude that

the issuing judge had a substantial basis to issue the warrant.

      [¶27] In reaching this conclusion, we emphasize its limited scope. The

warrant at issue sought specifically identified aspects of Warner’s cell phone

records, covering a defined period, from the wireless provider. The detective

did not seek—and the court did not issue a warrant for—the seizure of

Warner’s cell phone itself. As the Supreme Court has explained, a cell phone

provides a wide-open window into a person’s life. Id. at 386, 395. “Cell phones
16

. . . place vast quantities of personal information literally in the hands of

individuals.” Id. at 386. “[M]any of the more than 90% of American adults who

own a cell phone keep on their person a digital record of nearly every aspect of

their lives—from the mundane to the intimate.” Id. at 395.

      [¶28] The extraordinary breadth and sensitivity of information that

people may store on their cell phones creates a qualitatively different factual

context in which to consider the constitutionality of a warrant to search an

entire cell phone, compared to the factual context for the warrant issued in this

case, where the information sought from the wireless service provider was

much more circumscribed. This case therefore does not call for us to consider

whether the issuance of a warrant for the search of a suspect’s cell phone itself

would be proper if it were based merely on information that more than one

person was involved in committing the crime, the suspect was one of those

people, and the suspect owned a cell phone. See Commonwealth v. White,

59 N.E.3d 369, 371-72, 376-77 (Mass. 2016) (concluding that those

circumstances were insufficient to support a determination of probable cause);

see also United States v. Ramirez, 180 F. Supp. 3d 491, 495 (W.D. Ky. 2016)

(same); Stevenson v. State, 168 A.3d 967, 981-86 (Md. 2017) (Adkins, J.,

concurring) (same). And we express no view on that issue today.
                                                                             17

      [¶29]    The court also suppressed evidence obtained through the

September 14, 2015, search warrant to search Shultz’s cell phone account data.

Ordinarily, an individual lacks standing to challenge the search of another

person’s property unless the individual has a reasonable expectation of privacy

in that property. See State v. Lovett, 2015 ME 7, ¶ 8, 109 A.3d 1135; State v.

Filion, 2009 ME 23, ¶ 11, 966 A.2d 405; State v. Maloney, 1998 ME 56, ¶ 6,

708 A.2d 277. Warner argues, however, that he had standing to challenge the

admissibility of evidence discovered in the Shultz search because it was

through an illegal search of his own account data that law enforcement

obtained some of the information that it provided in the affidavit seeking

Shultz’s data. See State v. Johndro, 2013 ME 106, ¶ 21, 82 A.3d 820 (“[A]ny

evidence obtained through the exploitation of police illegality must be excluded

as fruit of the poisonous tree.”).

      [¶30] Based on our conclusion that there was no illegality in the search

of Warner’s data, and given that Warner has not otherwise asserted any

reasonable expectation of privacy in Shultz’s data, we conclude that Warner

lacks standing to challenge the search of Shultz’s data. Accordingly, we also

vacate the court’s suppression of the evidence obtained through that search.

We need not, and do not, reach any of the State’s remaining arguments.
18

        The entry is:

                           Order suppressing evidence obtained through
                           the September 9, 2015, and September 14, 2015,
                           warrants vacated.      Remanded for further
                           proceedings.



Maeghan Maloney, District Attorney, Prosecutorial District 4, Augusta;
Jonathan Liberman, District Attorney, Prosecutorial District 6, Rockland; and
Stephanie Anderson, District Attorney, and Carlos Diaz, Asst. Dist. Atty. (orally),
Prosecutorial District 2, Portland, for appellant State of Maine

Christopher R. Guillory, Esq. (orally), Saco, for appellee Michael J. Warner II


Cumberland County Unified Criminal Docket docket number CR-2015-5750
Kennebec County Unified Criminal Docket docket number CR-2015-2508
Knox County Unified Criminal Docket docket number CR-2016-145
FOR CLERK REFERENCE ONLY
