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State v. Warner

Supreme Court of Maine

August 29, 2019


          Argued: February 5, 2019

          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

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

          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 IIs motion to suppress evidence obtained pursuant to (1) a search warrant for Warners cell phone account data authorized by Judge Dow on September 9, 2015, and (2) a search warrant for codefendant Taylor Shultzs 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 Shultzs account data and that the court (Murphy, J.) erred in determining that neither search warrant was supported by probable cause. Because we conclude that (1) the affidavit for the September 9, 2015, warrant to search Warners account data was supported by probable cause, and (2) Warner lacked standing to challenge the September 14, 2015, warrant to search Shultzs 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 Warners 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 Sheriffs Office responded to a reported burglary at Tobeys Grocery in China, Maine. An employee at Tobeys 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 Tobeys 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 showed a small, dark-colored, four-door car, believed to be a Volkswagen, moving through the Tobeys 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 Tobeys 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 Tobeys Grocery that an employee of Cumberland Farms in Brunswick had reported finding a blue money bag with checks written out to Tobeys 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 stores 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 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 Tobeys 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 suspect[2] 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 mischief, possession of burglary tools, burglary, unlawful trafficking in scheduled drugs, and possession of scheduled drugs.

         [¶8] The investigating trooper learned Warners cell phone number from Warners 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 Warners 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 Sheriffs Office applied for a warrant to obtain and search records from wireless provider AT&T Mobility that were associated with Warners 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 incoming and outgoing text messages and telephone calls;[5] and "PING" information to assist in identifying the devices 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 Shultzs cell phone account from July 1, 2015, to September 14, 2015. The affidavit was largely identical to the affidavit seeking to search Warners data, supplemented with some additional facts, most of which were based on ...

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