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State v. O'Donnell

Supreme Court of Maine

June 18, 2019

STATE OF MAINE
v.
KEVIN M. O'DONNELL

          Argued: October 12, 2017

          Reargued: October 23, 2018

          Adam P. Sherman, Esq. (orally), Sherman & Worden, P.A., Auburn, for appellant Kevin O'Donnell

          Andrew S. Robinson, District Attorney (orally), and Claire Gallagan Andrews, Asst. Dist. Atty., Office of the District Attorney, Farmington, for appellee State of Maine

          Janet T. Mills, Attorney General, and Paul Rucha, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for amicus curiae Attorney General

          Lawrence C. Winger, Esq., amicus curiae pro se

          Zachary L. Heiden, Esq., American Civil Liberties Union of Maine Foundation, Portland, for amici curiae American Civil Liberties Union of Maine, American Civil Liberties Union, Electronic Frontier Foundation, and Maine Association of Criminal Defense Lawyers

          Tina Heather Nadeau, Esq., Maine Association of Criminal Defense Lawyers, Portland, for amicus curiae Maine Association of Criminal Defense Lawyers

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

          HUMPHREY, J.

         [¶1] Kevin M. O'Donnell appeals from a judgment of conviction entered in the Unified Criminal Docket (Franklin County, Mullen,) following his conditional guilty pleas to burglary (Class B), 17-A M.R.S. § 401(1)(B)(4) (2018); stealing drugs (Class D), 17-A M.R.S. § 1109(1), (2)(B) (2018); and violation of a condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2018), entered pursuant to M.R.U. Crim. P. 11(a)(2) following the denial of his motion to suppress [Stokes, J.).

         [¶2] O'Donnell argues that the court erred when it denied his motion to suppress all evidence obtained as a result of the State's acquisition of his cell phone's location information. The court concluded that (1) the acquisition of O'Donnell's cellular phone location information did not constitute a search under the Fourth Amendment to the United States Constitution and was not excluded from evidence by Maine's Electronic Device Location Information Act (EDLIA), 16 M.R.S. §§ 647 to 650-B (2018); (2) the entry into and search of O'Donnell's residence were lawful; and (3) the fruit-of-the-poisonous-tree doctrine was inapplicable. We affirm the judgment.

         I. BACKGROUND

         [¶3] In its order denying the motion to suppress, the court found the following facts, which are supported by the record and viewed in the light most favorable to the motion court's order. See State v. Gerry, 2016 ME 163, ¶ 2, 150A.3d810.

         [¶4] On April 4, 2015, a sergeant from the Rangeley Police Department received a call reporting a burglary at the caller's apartment in Rangeley. The caller said that two flat-screen televisions, a PlayStation 3, medical marijuana, some ammunition, and several firearms-including a loaded handgun-had been taken from his residence.

         [¶5] The caller explained that a friend had alerted him to the burglary and stated that O'Donnell and Danielle Nelson were the perpetrators. The caller told the sergeant that he had ended a relationship with Nelson on April 3, 2015, and drove Nelson, her daughter, and their belongings to O'Donnell's residence in Lisbon. The caller and Nelson planned to meet at the Auburn Mall on April 4, 2015-the day of the burglary-so that the caller could return some paperwork to Nelson. The caller went to the mall, but Nelson never arrived.

         [¶6] The sergeant contacted the friend who had informed the caller about the burglary. The friend corroborated the caller's account and explained that he had heard about the burglary from an individual in Florida. The sergeant then spoke with that individual, who stated that O'Donnell had been in Florida with the individual for the past three weeks and that O'Donnell said he planned to move to Florida with Nelson and finance the move by stealing guns and money from the caller.

         [¶7] The sergeant then contacted the Franklin County and Androscoggin County dispatch centers. He learned that Nelson was currently on probation and O'Donnell was the subject of an outstanding arrest warrant for charges of eluding an officer and driving to endanger.

         [¶8] On April 5, 2015, the sergeant asked an officer from the Lisbon Police Department, who was familiar with O'Donnell and his residence from previous encounters, to check O'Donnell's home in Lisbon. The Lisbon officer went to O'Donnell's residence and, although he did not make contact with ...


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