MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision: 2019 ME 157
Docket:   Cum-18-485
Argued:   October 10, 2019
Decided:  November 7, 2019

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



                                       STATE OF MAINE

                                                  v.

                                    DAVID W. MARBLE JR.


GORMAN, J.

         [¶1] David W. Marble Jr. appeals from a judgment of conviction of two

counts of intentional or knowing murder, 17-A M.R.S. §§ 201(1)(A) (2018),

1158-A(1)(B) (2015),1 entered by the trial court (Cumberland County,

Murphy, J.) after a jury trial.2 Marble argues that the court erred in denying his

motion to suppress evidence of his cell site location information because the

information was obtained through a search warrant issued without probable

cause. We affirm the judgment.



   1 Title 17-A M.R.S. § 1158-A has since been repealed and replaced. See P.L. 2019, ch. 113, §§ A-1,
A-2 (effective May 16, 2019) (to be codified at 17-A M.R.S. § 1504.)
   2 Marble was also convicted of illegal possession of a firearm by a prohibited person (Class C),
15 M.R.S. § 393(1)(C) (2015), after waiving his right to a jury trial on that count. See P.L. 2015,
ch. 470, § 1 (effective July 29, 2016 (amending 15 M.R.S. § 393(1), but not in any way relevant to this
appeal). Marble does not challenge this conviction on appeal.
2

                               I. BACKGROUND

      [¶2] On December 26, 2015, a detective investigating two apparent

homicides applied for a search warrant for the historical cell site location

information (CSLI) of seven telephone numbers, including Marble’s, that were

in contact with the cell phone of one of the victims in the hours before he was

killed. The detective’s affidavit supporting the warrant application averred the

following facts relevant to the existence of probable cause to justify a search

Marble’s cell phone records. See State v. Nunez, 2016 ME 185, ¶¶ 18-20, 153

A.3d 84.

      [¶3] At approximately 3:30 a.m. on December 25, 2015, a woman called

9-1-1 reporting that she had been shot. The police were able to track the 9-1-1

call to the area of Summerhaven Road in Manchester, Maine; when the police

arrived, they found the bodies of one male victim and one female victim in a car

they later learned belonged to the male victim. No gun was found at the scene,

but a cell phone was found in the female victim’s lap. This cell phone—which

belonged to the male victim—was the phone used to make the 9-1-1 call.

      [¶4] Marble was a drug dealer operating in Maine and the male victim

worked for him. Two days before the murders, the male victim was supposed

to collect money from another drug dealer and bring it to Marble but he did not
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do so. That same day, Marble obtained two handguns. On December 24, eight

calls were made to the male victim’s home phone from Marble’s cell phone

number. Just hours before the murders, the male victim and some friends broke

into Marble’s apartment while Marble was not there and stole televisions,

backpacks, guns, and drugs. Sometime after the male victim left Marble’s

apartment but while the friends were still there, the male victim sent one of the

friends a text message that read “leave.” Marble’s cell phone was used to call

the male victim’s cell phone at 2:14 a.m. on December 25, just eighty minutes

before the 9-1-1 call.

       [¶5] Based on the affidavit, a judge (Kennebec County, Dow, J.) issued a

search warrant authorizing the seizure of records associated with seven cell

phone numbers, including Marble’s.3 The police executed the warrant and

obtained, from Marble’s cell phone service provider, Marble’s CSLI.

       [¶6] On February 18, 2016, Marble was indicted on two counts of

intentional or knowing murder, 17-A M.R.S. §§ 201(1)(A), 1158-A(1)(B), for

both deaths.4 Marble moved to suppress the evidence of his CSLI. After a


   3  In addition to the location information, the search warrant authorized the police to obtain
Marble’s cell phone content, such as text messages, voice mails, and call logs. Marble challenges only
the seizure of his CSLI.
   4  Marble was indicted in Kennebec County, but the case was transferred to Cumberland County
after the court (Murphy, J.) granted Marble’s motion to change venue.
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testimonial hearing5 held in July of 2018, the court (Cumberland County,

Murphy, J.) denied Marble’s motion, concluding that the affidavit established

“sufficient probable cause to believe that Mr. Marble was involved in these

homicides and further that evidence of the crimes of homicide could be located

in his phone.”

        [¶7] Two weeks later, the court conducted an eight-day jury trial.

Viewing the evidence in the light most favorable to the jury’s verdict, the jury

rationally could have found the following facts. See State v. McBreairty, 2016

ME 61, ¶ 2, 137 A.3d 1012.

        [¶8] Marble was involved in drug trafficking in the Augusta area and the

male victim worked for him. In the early morning hours of December 25, 2015,

the male victim and some friends decided to burgle Marble’s Augusta

apartment. When Marble returned to the apartment, he discovered that the

apartment had been burgled and expressed a belief that the male victim was

responsible. Along with two associates, Marble drove with the victims out to

Summerhaven Road, where Marble shot and killed each of them.




    5 At the commencement of the hearing, the court made clear that its determination of whether
the search warrant was supported by a showing of probable cause would be based on the information
contained within the four corners of the affidavit. The court took testimony, however, on some
terminology used in the affidavit.
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      [¶9] At the end of the trial, the jury found Marble guilty of both murder

counts. On November 9, 2018, the court sentenced Marble to a term of life

imprisonment for the murder of the female victim and a concurrent term of

seventy-five years in prison for the murder of the male victim. Marble timely

appealed from the resulting judgment. See 15 M.R.S. § 2115 (2018); M.R.

App. P. 2B(b)(1).

                                II. DISCUSSION

      [¶10] Marble argues that the judge who issued the warrant permitting

the officers to obtain his CSLI erred in determining that there was probable

cause supporting the warrant’s issuance. When a trial court denies a motion to

suppress evidence obtained pursuant to a search warrant, we “review directly

the finding of probable cause made by the judicial officer who issued the

warrant, affording that finding great deference.” State v. Samson, 2007 ME 33,

¶ 11, 916 A.2d 977. Our inquiry is limited to the question of “whether there

was a substantial basis for the single required finding of probable cause,” State

v. Nickerson, 574 A.2d 1355, 1356 (Me. 1990), and we “must give the affidavit a

positive reading and review the affidavit with all reasonable inferences that

may be drawn to support the magistrate’s determination,” State v. Johndro,

2013 ME 106, ¶ 9, 82 A.3d 820 (quotation marks omitted).
6

        [¶11]       Since 2013, in Maine, law enforcement officers seeking

information about the location of an electronic device like a cell phone have

been required to obtain a warrant. 16 M.R.S. § 648 (2018).6 Recently, the

United States Supreme Court held that law enforcement’s acquisition of seven

days’ worth of an individual’s historical cell site location information from

wireless carriers constituted a search for Fourth Amendment purposes.7

Carpenter v. United States, 138 S. Ct. 2206 (2018). In reaching its decision, the

Court reasoned that an individual has a “legitimate expectation of privacy in the

record of his physical movements as captured through CSLI.” Id. at 2217. The

officers investigating these murders complied with Carpenter and with

16 M.R.S. § 648 when they sought a warrant to obtain Marble’s CSLI; our role is

to determine whether there was a substantial basis for the court’s finding that

the affidavit they presented in requesting that warrant established “probable




    6 Title 16 M.R.S. § 648 has since been amended, but not in any way relevant to this appeal. See
P.L. 2019, ch. 489, § 13 (effective Sept. 19, 2019) (to be codified at 16 M.R.S. § 648); P.L. 2017, ch. 144,
§ 5 (effective June 8, 2017) (codified at 16 M.R.S. § 648 (2018)).
    7 The Supreme Court left open the question of whether accessing less than seven days of CSLI
constitutes a search under the Fourth Amendment. Carpenter v. United States, 138 S. Ct. 2206, 2217
n.3 (2018) (“[W]e need not decide whether there is a limited period for which the Government may
obtain an individual’s historical CSLI free from Fourth Amendment scrutiny, and if so, how long that
period might be.”). Here, because law enforcement obtained a search warrant for Marble’s CSLI, we
do not address that aspect of the Carpenter decision.
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cause to believe that the grounds for the search exist[ed],” such as that the

records would “constitute[] evidence of the commission of a crime.” M.R.U.

Crim. P. 41(c), (f)(1); see Nickerson, 574 A.2d at 1356.

      [¶12] “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 . . . evidence of a crime will be found in a particular

place.” State v. Simmons, 2016 ME 103, ¶ 11, 143 A.3d 819 (quotation marks

omitted); see also Illinois v. Gates, 462 U.S. 213, 238 (1983) (setting forth the

“totality-of-the-circumstances” test for probable cause). To support probable

cause, a warrant affidavit must “set forth some nexus between the evidence to

be seized and the locations to be searched.” Johndro, 2013 ME 106, ¶ 10,

82 A.3d 820. Thus, an application to search an individual’s CSLI typically must

establish some connection between the individual and the crime for which the

individual’s whereabouts may constitute evidence; that connection, however,

need not be expressly articulated in the warrant application. State v. Warner,

2019 ME 140, ¶¶ 23-26, --- A.3d ---.

      [¶13] Here, the information in the affidavit was sufficient to support the

judge’s determination that there was probable cause to believe that Marble was

involved in both homicides and that his CSLI would contain or constitute
8

evidence relevant to that crime. From the facts in the affidavit, the judge who

issued the warrant could infer that Marble knew the victims and was in close

and very recent contact with them—the male victim worked for Marble in the

local drug trade, and Marble had called him nine times over the course of the

prior two days, including one call just over an hour before the murders; that

Marble had the ability to commit the crime—he had recently acquired two

guns; and that Marble likely had a motive—the male victim appeared to owe

Marble money and had also burgled Marble’s apartment just hours before the

murders. Taken together, these facts are sufficient to support the judge’s

determination that there was a “fair probability” that Marble’s historical CSLI

would contain evidence of the murders.8 Johndro, 2013 ME 106, ¶ 10, 82 A.3d

820.

        The entry is:

                       Judgment affirmed.




    8We are also unpersuaded by Marble’s argument that the trial court erred by instructing the jury
on accomplice liability; the evidence at trial was sufficient to support a conviction based on either
principal or accomplice liability. See 17-A M.R.S. § 57(3)(A) (2018); State v. Pheng, 2002 ME 40, ¶ 9,
791 A.2d 925; State v. Wright, 662 A.2d 198, 202 (Me. 1995).
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Tina Heather Nadeau, Esq. (orally), The Law Office of Tina Heather Nadeau,
PLLC, Portland, for appellant David Marble Jr.

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine


Cumberland County Unified Criminal Docket docket number CR-2017-2176
FOR CLERK REFERENCE ONLY
