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State v. Marble

Supreme Court of Maine

November 7, 2019

STATE OF MAINE
v.
DAVID W. MARBLE JR.

          Argued: October 10, 2019

          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

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

          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. §§ 2Ol(1)(A) (2018), 1158-A(1)(B) (2015), [1] entered by the trial court (Cumberland County, Murphy, /.) 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.

         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 of 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 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 testimonial hearing[5] 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 ...


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