M AINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 2 ME 59 Docket: Ken

- 21

- 328 Argue d: July	6,	2022 Decided: December	6,	2022
Panel: STANFILL ,	C.J.,	and MEAD ,	JABAR ,	HORTON , CONNORS , and	LAWRENCE, JJ.

STATE	OF	MAINE

v. J ARED	D. JANDREAU

HORTON ,	J. [¶1] Jared	 D.	 Jandreau	 appeals	 from	 a	 judgment	 convicting	 him	 of seventeen	 counts	 of	 sexual	 exploitation	 of	 a	 minor	 under	 the	 age	 of	 twelve (Class	A), 17

- A M.R.S.	§	282(1)(C)	(2022) ,	five	counts	of	unlawful	sexual	contact (Class	B), 17

- A	M.R.S.	§	255

- A(1)(E

- 1)	(2022) ,	and	one	count	of	solicitation	to commit	 gross	 sexual	 assault	 (Class	 B), 17

- A	 M.R.S.	 §	 253(1)(C)	 (2022) ;

see 17

- A M.R.S.	 §	 153(1)(B)	 (2022) ,	 entered	 by	 the	 trial	 court ( Kennebec County, Stokes, J. )	 after	 a	 jury	 trial.	 	 Jandreau	 raises	 several arguments	 on	 appeal: that (1) a	 search of	 his smartphone 1 authorized	 by a

1 The	term	“smartphone”	is	defined	as	“a	cellular	phone	equipped	with	various	additional	features and	services,	as	text	messaging,	information	storage,	and	internet	access.” Smartphone ,	Webster’s New	World	College	Dictionary	(5th	ed.	2016).		The	broader	ter m	“cell	phone , ” used at	times	in	this opinion, encompasses	 both	 smartphones	 and	 other	 phones	 that	 provide	 service	 through	 cellular networks	but	that	do	not	include	the additional features	of	smartphones. See	Cell P hone ,	Webster’s2 warrant	 violated	 his	 Fourth	 Amendment	 rights	 because	 the	 warrant was unconstitutionally	 broad	and lacked	 particularity ; 2 (2)	 the	 court	 violated	 his constitutional	right	to	a	public	trial ; (3)	the	court	erred	in	admitting	an	exhibit because	 it	 violated	 the	 best	 evidence	 rule, M.R.	 Evid.	 1002 ; and	 (4)	 several aspects	 of	 his	 sentence	 were	 illegal	 or	 improper

. Of	 Jandreau’s	 four contentions,	only	the	first	merits	extended	discussion. 3 We af firm	Jandreau’s

conviction

.

New	World	College	Diction ary	(5th	ed.	2016)(“[A]	kind	of	mobile	radio	telephone	used	in	a	cellular communications	system.”).

2 “Although	related, overbreadth and lack	of	particularity are	distinct	legal	concepts. Overbreadth is	 present	 when	 probable	 cause	 is	 absent	 as	 to	 some	 or	 all	 of	 the	 items	 targeted	 for	 seizure. Particularity	pertains	to	the	requirement	that	a	warrant	be	sufficiently	particularized	on	its	face	to provide	the	necessary	guidelines	for	the	searc h	by	the	executing	officers. ” United	States	v.	Redzepagic , No.	 17

- CR

- 228	 (DRH),	 2020	 U.S.	 Dist.	 LEXIS	 160241,	 2020	 WL	 5232066,	 at	 *22	 n.4	 (E.D.N.Y. Sept. 2, 2020) (citation	and	quotation	marks	omitted)

.

3 Jandreau’s	other	three	arguments	lack	merit	and	call	for only	summary consideration. First,	h e	claims	that	the	court	violated	his	right	to	a	public	trial	during	jury	selection	by	closing	the courtroom	to	a	member	of	the	public. See Roberts	v.	State ,	2014 ME	125,	¶	19,	103	A.3d	1031 (“The Sixth	Amendment’s	public	trial	guarantee	is	for	the	benefit	of	the	accused;	that	the	public	may	see	he is	fairly	dealt	with	and	not	unjustly	condemned,	and	that	the	presence	of	interested	spectators	may keep	his	triers	ke enly	alive	to	a	sense	of	their	responsibility	and	to	the	importance	of	their	functions.” (quotation	marks	omitted))

. However,	Jandreau’s	claim	fails	based	on	the	undisputed	facts.		The	one member	of	the	public	who	Jandreau	claims	was	excluded	from	the	cou rtroom	was not	an	“interested spectator”	but a	defendant	in another criminal case scheduled	for	jury	selection who	told	a	judicial marshal	 that	 he	 had	 come	 into	 the	 courtroom to	 locate his	 lawyer.	 	 His	 lawyer	 was	 not	 in	 the courtroom

. The marshal	told	the	man	that	he	would	locate the	lawyer and	bring	the	lawyer	to	him and	asked	the	man	to	wait in	the	hall, where	he	and	his	lawyer	could	have	a	private	conversation. The	man	readily	comp lied	without	any	objection or	other	indication	that	he	wished	to	remain

. No door	 to	 the	 courtroom	 was	 locked,	 no	 “interested	 spectator”	 was	 excluded , and	 no	 violation of Jandreau’s	rights occurred. Second, Jandreau’s argument	asserting	the best	evidence rule	is	based	on	the	court’s	admission	of several	hundred	text	messages	that the	evidence	indicated Jandreau	had	deleted	from	his cell phone ,3
I.		BACKGROUND [¶ 2 ] View ed in	the	light	most	favorable	to	the	trial	court’s	order	denying Jandreau’s	 motion	 to	 suppress, the	 record	 supports	 the	 following	 facts

. See State	v.	Sasso ,	2016	ME	95,	¶ ¶ 2 ,	19 ,	143	A.3d	124 ( explaining	that	when neither	party	moves	 for	 further	 findings of	 fact in	 the	context	of	a	motion	 to suppress,	we	“infer	that	the	court	 found	all	the	 facts	necessary	to	support	its judgment	if	those	inferred	findings	are	supportable	by	evidence	in	the	recor d

. ” (quotation	marks	omitted) )

.

some	of	which	had	contained	emojis	that	did	not	appear	in	the	admitted text	messages because	the State’s data	extr action program	could	not	reproduce	emojis. “ A n	original	writing

.	.	. is	required	in order	 to	prove	its	content	unless [the	Maine	Rules	 of	Evidence] or	a	 statute	provide s otherwise

. ” M.R. Evid. 1002

. Rule	1004(a) ,	however, permits other	evidence	of	 the content	of	a	writing to	be admitted in	place	of	the	original	if	“[a]ll	the	originals	are	lost	or	destroyed,	and	not	by	the	proponent acting	in	bad	faith.” M.R.	Evid. 1004(a). “We	review	the	court’s	application	of	the	best	evidence	rule for	 an	 abuse	 of discretion.” State	 v.	 Legassie ,	 2017	 ME	 202,	 ¶	 29,	 171	 A.3d	 589

. Here,	 because Jandreau,	not	the	State,	had	deleted	the	original	text	messages,	the	court	did	not	abuse	its	discretion in	granting	the	State’s	request	to	admit	the	messages	without	emojis	as the	best	available	evidence of	their	content. Finally, Jandreau	objects	to	his	sentence	on	several	grounds,	including	that	the	sentence	imposed constitutes	an	unconstitutional	penalty	for	his	exercise	of	his	right	to	trial. He	points	to	the	difference b etween	the	sentence	he	was	offered	during	plea	negotiations	and	the	sentence	imposed	after	trial and	also	to	the	difference	between	his	sentence	and	the	more	lenient	sentence	another	participant	in the	same	criminal	activity	received	after	pleading	guilty. The	imposition	of	a	sentence	after	trial	that is	greater	than	the	one	offered	during	plea	negotiations,	however, doe s	not	necessarily infringe	upon a	defendant’s	right to	require	the	State	to	prove	its	allegations	at trial. “ It	is	to	be	expected	that,	o n the	whole,	 defendants	who	 plead	 guilty	 to	 criminal	 offenses	 receive	more	lenient	 sentences	 than defendants	who	go	 to	 trial.

.	 .	 . Remorse	and	acceptance	of	responsibility	are	 factors	 to	look	at	in sentencing,	and	defendants	who	plead	guilty	are	more	like ly	to	demonstrate	sincere	remorse	than defendants	who	do	not	plead	guilty.” State	v.	Winslow ,	2007	ME	124,	¶	31,	930	A.2d	1080 (citations omitted).		This	and	Jandreau’s	other	objections	to	his	sentence	and	probation	conditions	do	not	merit further	discuss ion.4 [¶ 3 ] A woman told police on	August	29,	2017, that	Jandreau	had	sexually
assaulted	her earlier	that	day .		The	police arrested Jandreau on	August	30	and seized	his	Samsung	Galaxy	S8 smart phone

. On September	8,	2017 , the	police applied for	a warrant	 to	 search the cell phone

. The	affidavit	 supporting	 the warrant	 request	 i ncluded ,	 in	 pertinent	 part, the	 following	 supporting
information:

• The alleged	victim of	the	sexual	assault said that she	had met	Jandreau on m atch.com

.

• The	alleged	victim said	that	she had met Jandreau in	person once	prior to	August 29, 2017

.

• The	alleged	victim said	that	she had	spoken	to	Jandreau	once	over	the phone but that their	primary	means	 of	communication	was via text message
.

• The	alleged	victim	showed the	officers text	messages between her	and Jandreau , none	of which w as sexual	in	nature

.

• The alleged	victim	said	that	a fter she arrived	at	 Jandreau’s	home	on August 29, 2017,	he	repeatedly	and	violently	assaulted	her	and	forced her	to	engage	in	sexual	acts

.

• When	 police	 spoke	 to	 Jandreau	 in	 the	 early	 morning	 of August 30 , 2017,	Jandreau initially denied	knowing	the alleged	victim , but	 later stated	 that	 he	 “had	 sex	 with	 [ her],” that	 “she	 came	 over looking	 for	 sex,”	 and	 that	 the	 alleged	 victim had	 sent	 him	 text messages “repeatedly	as king him	to	have	sex	with	her. ” [¶ 4 ] The	 same	 day,	 t he court issue d a	warrant permitting a search	 of Jandreau’s cell phone for	the	following:5 Any	 files,	 documents,	 or	 software	 related	 to	 the	 crime	 of Gross	 Sexual [Assault] ,	 including	 but	 not	 limited	 to	 text messages,	phone	numbers,	photographs,	videos, emails,	and contact	information	including	but	not	limited	to	[the	alleged victim]. Records	 in	 any	 form	 regarding	 searches	 for	 information regarding	sexual	assaults. Communication	in	any	form	regarding	sexual	assault	and/or [the	alleged	victim.]
Communic ation	in	any	form	between	[the	alleged	victim]	and Jandreau[.] Records,	images,	videos	and	recording	in any form	regarding sexual	assaults	or	[the	alleged	victim]. [¶ 5 ] After	the	warrant was issued,	the police electronically	extracted the
cell phone’s	data and	returned the cell phone to Jandreau in	November	2017.
In	December 2017, a	prosecutor reviewed	the	extract ed	material and	found two images of	a	child ,	one	of	which he	believed constituted child	pornography. [¶ 6 ] The prosecutor reported	the	image s to the Maine	State	Police

. In January	 2018, a	 state	 police detective sought	 and	 obtained	 an additional
warrant	 to	 search Jandreau’s	 home and	 property	 for	 any	 electronic	 devices

. When the	detective executed	the	January	2018	warrant,	Jandreau voluntarily gave	the	police	access	to	the	contents	of	his cell phone

. Th e	subsequent search of	the	cell	phone did	not	uncover	any	sexually	explicit	depictions	of	minors

.6 [¶ 7 ] The	detective then sought	and obtained	another	warrant	to re access
the data that	 had	 been extract ed pursuant	 to the	 September	 2017	 warrant

. Upon	 execution	 of	 that	 warrant,	 police	 discovered	 additional	 photos	 and	 a video	 that	 were	 sexually	 explicit	 and	 depicted	 the	 same	 chil d	 as	 the	 photos identified	by	the	prosecutor	in	December	2017. [¶ 8 ] On	January 2 4 , 2020,	the	State	charged	Jandreau	by	indictment	with twenty	counts	of	sexual	exploitation	of	a	minor	under the	age	of twelve,	 five counts	of	unlawful	sexual	contact,	and	one	count	of	solicitation	to	commit	gross
sexual	 assault. 4 Jandreau	 filed	 a	 motion	 to suppress	 evidence,	 a	 motion	 to dismiss,	and	a	second	motion	to	suppress	that	included	a	request	for	a Franks hearing. 5 The	court	held	a	pre

- Franks hearing	on	April	5,	2021,	related	to	the September	 2017	warrant ,	and	 then	 denied	 the	 request	 for	a Franks hearing. The	court	( Cole,	A.R.J. )	then	held	a	hearing	on	both	the	motion	to	suppress	and the	motion	to	dismiss	on	May	28,	2021. The testimony presented	at	the	hearing

4 The	State	also	brought	charges	against	the	mother	of	the	child	depicted	in	the	photos	and	video on	Jandreau’s	smartphone.		The	mother	of	the	child	is	not	the	alleged	victim	of	the	August	29,	2017, assault.		No	charges	were	brought	against	Jandreau regarding	the	reported	assault	that	gave	rise	to the	September	2017	warrant.

5 A Franks hearing	is	an	evidentiary	hearing	at	which	a	defendant	may	challenge	the	truthfulness of	statements	made	in	an	affidavit	to	support	a	search	warrant. See Franks v. Delaware , 438 U.S. 154, 155

- 56 (1978). To	determine	whether	to	convene	a Franks hearing,	t he	court	may	hold	a	pre

- Franks hearing	at	which	a	defendant	must	make “ a	substantial	preliminary	showing	that:	(1)	the	affidavit	to obtain	 a	 warrant	 included	 intentional	 and	 knowing	 misstatements	 or	 misstatements	 made	 in reckless	 disregard	 for	 the	 truth,	 a nd	 (2) that the	 misstatements	 were	 necessary	 for	 a	 finding	 of probable	cause." State v. Hamel , 634 A.2d 1272, 1273 (Me. 1993)

.7 focused	solely	on	the execution	of	the Janua ry	2018	search	warrant,	although
the September	 2017 search	 warrant	 and supporting affidavit were	 also
admitted as	exhibits

. The	court	denied	the	motion s to	suppress and	dismiss in
a	written	order , determin ing that Jandreau	had	consented	to the	January	2018 search	of	his	smartphone: [Jandreau]’s	arguments	 focus	on	his	cell	phone,	which	would	not have	any	bearing	on	 the	 first	warrant	issued	in	his	[Gross	Sexual Assault]	[(GSA)]	case,	which	sought	only	evidence	of	GSA and	DNA in	his	home. [Jandreau]’s	 arguments	 as	 to	 the	 warrants	 fail	 because	 he consented	 to	 the	 search.	 .	 .	 .	 The	 evidence	 [Jandreau]	 seeks	 to suppress	are	the	files	police	found	on	his	cell	phone.		The	recording of	[Jandreau]’s	conversation	with Detective	Armstrong	satisfies	the court	 that	 [Jandreau]	 freely	 and	 voluntarily	 gave	 police	 the password	to	his	phone	when	asked,	manifesting	consent	to	a	search of	the	phone’s	contents. [¶ 9 ] The	court’s	finding	of	consent	plainly	applies	only	to	the execution of	the	January	2018	warrant , and	the	court’s	order	did	not	address	the	validity of	the	September	2017	warrant	specifically.		However,	in a	footnote referring to	 Jandreau’s	 overbreadth	 argument	 as	 to	 the	 four	 warrants	 generally ,	 the

court ’s	order stated: [Jandreau]’s	motion	also	argues	that	the	police	exceeded	the	scope of	the	warrants,	that	the	searches	were	unreasonable	in	light	of	the privacy	implications	 of	 searching	a	 cell phone,	 that	 the	warrants did	not	establish	that	the	defendant	was	commi tting	a	crime,	that the	warrants	failed	to	establish	a	nexus	between	the	place	searched8 and	the	crime	allegedly	committed	and	that	the	warrants	failed	the inventory	requirement	of	the	Maine	Rules	of	Criminal	Procedure. These	arguments	are	advanced	in	a	co nclusory	manner,	and [ the ] defendant	 does	 not	 connect	 the	 facts	 of	 this	 case	 to	 these arguments	 to	 explain	 why	 they	 should	 result	 in	 suppression	 of evidence.		The	court	will	therefore	disregard	these	arguments	and direct	its	attention	to	the	arguments	whic h	were	fully	briefed. [¶1 0 ]	 	 T he	 court ( Stokes,	 J. ) held	 a	 four

- day	 jury	 trial	 between July 19 and 22,	2021. During	the	trial,	Jandreau moved	to	suppress evidence	of text	 messages	 exchanged	 between	 Jandreau	 and	 the	 mother	 of	 the	 child depicted	in	 the photos	and	 video

. The	 court	 denied his	motion

. The State ’s
evidence that	was subsequently	admitted	included sexually	explicit	photos	of
the	child ,	a	sexually	explicit	video	of the child,	and the text	messages	between Jandreau	and	the	mother	of	the child	depicted	in	the	photos	and	video

. The	jury returned	a	verdict	of	guilty	on	all	charges that	went	to	trial

. 6 [¶1 1 ] After	holding	a	sentencing	hearing,	the court	entered	a	judgment on	 the	 verdict	 and	 sentenced	 Jandreau	 on	 one	 of	 the	 counts	 of sexual exploitation	of	a	minor	to	eighteen	years	of	incarceration	with	all	but	ten	years suspended	 and	 ten	 years	 of	 probation.	 	 For	 the	 remaining	 counts,	 the	 court imposed	 sentences concurrent	 to	 the	 sentence	 for	 sexual	 exploitation	 of	 a

minor

. Jandreau	 t imely	appealed

. See 15	M.R.S.	 §	2115 (2022) ;	M.R.	App.	P.

6 The	State	dismissed	three	counts	of	the	indictment	before	trial.9 2B(b)(1). Jandreau	 also	 timely	 filed	 an	 application	 for	 leave	 to	 appeal	 his sentence,	 which the	 Sentence	 Review	 Panel granted. See 15 M.R.S.	 §	 2151 (2022) ;	M.R.	App. P.	2B(b)(1),	20 (b)

. II. DISCUSSION [¶1 2 ] On	appeal, Jandreau contends that	the	court	erred	in declining	to reach	 his	 argument that	 the September	 2017 warrant was	 overbroad	 and
violated	 the	 Fourth	 Amendment’s 7 particularity requirement	 and maintains
that	the	court	should have	granted	his	motion	to	suppress

. The	scope	of	our review	of	the	denial	of	a	motion	to	suppress	is	limited	to	the	record	upon	which
the	court	decided	the	motion. See State	v.	Tribou ,	488	A.2d	472,	475	(Me.	1985) (“Only	 evidence	 presented	 to	 the	 motion Justice	 is	 considered	 in	 deciding whether	the	record	supports	the	motion	Justice’s	determination.”). 8 [¶1 3 ] Our	 analysis	 begins	 with	 an	 overview	 of	 the	 law	 regarding

warrants

.

7 Because	Jandreau	relies	on only the	Fourth	Amendment	of	the	United	States	Constitution, we	do not	address whether	the	warrants	and	searches	comported	with the	Maine	Constitution. See State	v. Chan ,	2020	ME	91,	¶	18	n.10,	236	A.3d	471

.

8 When	 a	 motion	 to	 suppress	 is	 renewed	 at	 trial,	 o ur	 review	 extends	 to include the	 record developed	on	 the	renewed	motion. See State	v.	Annis ,	2018	ME	15,	¶	16	n.3,	178	A.3d	467 (“Our review	.	.	.	is limited to the record before	the suppression court	at	the	time	of	its	order	.	.	.

. ” ).		Although motions	to	suppress	are	to	be	filed	on “ the	next	court	day	following	the	dispositional	conference,” M.R.U.	Crim.	P. 12(b)(3)(A),	they	may	be	renewed	or	even	initiated	after	that	point	for	good	cause. See M.R.U.	Crim. P.	41A(b)	(“For	good	caus e	shown,	the	court	may	entertain	[a	motion	to	suppress] at	a	time	beyond	that	provided	in	Rule	12(b)(3). ”).10
A. Legal Overview [¶1 4 ] The	Fourth	Amendment	protects	against	unreasonable	searches and	seizures	and	provides	that	warrants	must	be	based	on	probable	cause	and must	 “particularly	 describ[e]	 the	 place	 to	 be	 searched,	 and	 the	 persons	 or things	to	be	seized.”		U.S.	Const.	amend.	IV. “[T]he	central	concern	underlying the	Fourth	Amendment	[is]	the	concern	about	giving	police	officers	unbridled discretion	 to	 rummage	 at	 will	 among	 a	 person’s	 private	 effects.”
Arizona v. Gant ,	556 U.S. 332,	345	(2009)

. As	the	United	States	Supreme	Cour t has	explained, [t] he	 manifest	 purpose	 of	 th is particularity	 requirement	 was	 to prevent	general	searches.		By	limiting	the	authorization	to	search to	the	specific	areas	and	things	for	which	there	is	probable	cause	to search,	 the	requirement	ensures	 that	 the	search	will	be	carefully tailored	to	its	jus tifications,	and	will	not	take	on	the	character	of	the wide

- ranging	 exploratory	 searches	 the	 Framers	 intended	 to prohibit.		Thus,	the	scope	of	a	lawful	search	is	defined	by	the	object of	 the	 search	and	 the	 places	in	which	 there	is	 probable	 cause	 to believe that	it	may	be	found.		Just	as	probable	cause	to	believe	that a	stolen	lawnmower	may	be	 found	in	a	garage	will	not	support	a warrant	to	search	an	upstairs	bedroom,	probable	cause	to	believe that	undocumented aliens are	being	transported	in	a	van	will	not justify	a	warrantless	search	of	a	suitcase. Maryland	v.	Garrison ,	480	U.S.	79,	8 4

- 85 (1987) (quotation	marks	and	footnote omitted).11 [¶1 5 ]	 	 We	 review	 with	 deference a	 judicial	 officer’s determination	 of probable	cause supporting the	issuance	of	a	search	wa rrant

. S ee State	v.	Nunez , 2016	ME	185,	¶¶	18,	30,	153	A.3d	84 .		What	particular	things	and	locations a warrant	 may	 authorize	 to	 be	 searched based	 on	 probable	 cause	 is	 a
fact

- intensive	inquiry	that	must	be	resolved	based	on	the	unique	circumstances in	each	 case,	including	 the	information	in	 the	affidavit	and	 the	 nature	 of	 the alleged crime

. See , e.g. , Commonwealth	 v.	 Snow ,	 160	N.E.3d	 277,	 288	 (Mass. 2021) ; United	States	v.	Rar ick ,	636	F.	App ’ x	911,	914	(6th	Cir.	2016)

. 9 However, whether	a	search	warrant	satisfies	the	constitutional	particularity	requirement is	ultimately	a	question	of	law	that	we	determine	de novo
. S ee State	v.	Lehman , 1999	ME	124,	¶	7,	736	A.2d	256

.

9 Probable	cause	and	particularity	cannot	be	separated	entirely	for	purposes	of	review	because	a search	 warrant	 is	 particular	 if	 probable	 cause	 exists	 to	 search	 the	 places	 listed	 in	 the	 warrant. See State	v.	Samson ,	2007	ME	33,	¶	13,	916	A.2d	977 (“A	warr ant	authorizing	a	search	of	more	than one	building	will	not	fail	for	lack	of	particularity	of	location	if	the	affidavit	sets	forth	probable	cause to	search	each	location.”). Accordingly,	although	a	challenge	to	a	search	warrant	based	on	lack	of particular ity	 is	 distinct	 from	 a	 challenge	 based	 on	 lack	 of	 probable	 cause, in	 addressing	 the particularity	of	a	search	warrant, courts	often	consider	the	scope	of	probable	cause	shown. See,	e.g. , Burns	v. United	States ,	235	A.3d	758,	773	(D.C.	2020) ; Commonwealth v.	Johnson ,	240	A.3d	575,	586 (Pa.	 2020) (“[I]t	is	impossible	 to	 consider	 an	 overbreadth	 challenge	 to	 a	 search	warrant	without taking	probable	cause	into	account.”); United	States	v.	Griffith ,	867	F.3d	1265,	1275

- 76	(D.C.	Cir.	2017) (“[T]he	requirement	of particularity	is	closely	 tied	 to	 the	requirement	of	probable	cause.		When	a warrant	describes	the	objects	of	the	search	in	unduly	general	terms,	it	raises	the	possibility	that	there does	not	exist	a	showing	of	probable	cause	to	justify	a	search	for	them.” (quotation	marks	and	citation omitted));	2	Wayne	R.	LaFave, Search	&	Seizure:	A	Treatise	on	the	Fourth	Amendment §	4.5	(6th	ed.), Westlaw	(database	updated	Dec.	2021)	(“[T]he	requirement	of	particularity	is	related	to	the	probable cause	 requirement,	 in	 that

— at	 least	 under	 some	 circumstances

— the	 lack	 of	 a	 more	 specific description	will	make	it	apparent	that	there	has not	been	a	sufficient	showing	to	the	magistrate	that the	described	items	are	to	be	found	in	a	particular	place.”).12 [¶1 6 ] Although	 courts	 generally	 apply traditional	 Fourth	 Amendment principles	when	considering	searches	of	computer s and cell phone s,	searches of	these	objects present	unique concerns. See,	e.g. , Riley	v.	California , 5 73	U.S. 373,	 393

- 98	 (2014) ; Commonwealth	 v.	 Dorelas ,	 43	 N.E.3d	 306,	 312	 (Mass. 2016). [¶1 7 ]		Neither	we	nor	the	United	States	Supreme	Court	have	considered the	particularity	requirement	in	the	context	of warrants	to	search cell phone s , although	 we	 have	 addressed	 the requirement	 in	 the	 context	 of	 searches	 of
computers and data	from cell phone provider s
. See ,	e.g. , State	v.	Warner ,	2019 ME	140,	216	A.3d	22. [¶1 8 ] The	United	States	Supreme	Court	applied	the	Fourth	Amendment

to cell phone searches	in Riley	v.	California ,	where	the	Court	held	that,	absent extenuating	circumstances,	police	cannot	search	the	contents	of	a smart phone
incident	to	lawful	arrest	without	fir st	obtaining	a	warrant. 573	U.S. at 403 .		The Court	expounded	the	reasons	that cell phone s	are	distinct	from	other	objects	in
the	context	of	the	Fourth	Amendment: The	storage	capacity	of	cell	phones	has	several	interrelated consequences	for privacy.		First,	a	cell	phone	collects	in	one	place many	 distinct	 types	 of	 information

— an	 address,	 a	 note,	 a prescription,	a	bank	statement,	a	video

— that	reveal	much	more	in combination	 than	 any	 isolated	 record. Second,	 a	 cell	 phone’s capacity	 allows	 even just	 one	 type	 of	 information	 to	 convey	 far13 more	than	previously	possible. The	sum	of	an	individual’s	private life	can	be	reconstructed	through	a	thousand	photographs	labeled with	dates,	locations,	and	descriptions

.	.	. Third,	the	data	on	a	phone can	dat e	back	to	the	purchase	of	the	phone,	or	even	earlier

.	.	.	.

.	.	. . Although	 the	 data	 stored	 on	 a	 cell	 phone	 is	 distinguished from	physical	records	by	quantity	alone,	certain	types	of	data	are also	 qualitatively	 different.	 	 An	 Internet	 search	 and browsing history,	 for	 example,

.	 .	 . could	 reveal	 an	 individual’s	 private interests	or	concerns

.	.	. Data	on	a	cell	phone	can	also	reveal	where a	 person	 has	 been.	 	 Historic	 location	 information	 is	 a	 standard feature	 on	 many smart phones	 and	 can	 reconstruc t	 someone’s specific	movements	down	to	the	minute,	not	only	around	town	but also	within	a	particular	building.

.	.	. .

.	 .	 . [A]	 cell	 phone	 search	 would	 typically	 expose	 to	 the government	far	more	than	the	most	exhaustive	search	of	a	house: A	phone	not only	contains	in	digital	 form	many	sensitive	records previously	 found	 in	 the	 home;	 it	 also	 contains	 a	 broad	 array	 of private	information	never	found	in	a	home	in	any	form	.	.	.	.
Id. at	39 4

- 97	(citations and	emphasis omitted).		With	this	detailed	explanation, the	Court	underscored	the	significant	Fourth	Amendment	concerns	presented by cell phone searches. Id. Riley ’s	 utility	 for	 present	 purposes	 ends	 here, however,	because	the	Court	simply	held	that	police	must	obtai n	a	warrant	to
search	 the cell phone and	 did	 not further	 explain	 the	 meaning	 of	 the particularity	 requirement	 in	 the	 context	 of	 warrants to	 search	 cell	 phones

. Id. at	403.14 [¶1 9 ] In	a 2019 opinion, in	upholding	 the	validity	of	a	search	warrant aimed	at	obtaining	phone	data,	not	from	the	cell	phone	itself	but	from	a	wireless provider, we	echoed	concerns about searches	of	cell	phone s given the	breadth
of	information	contained	on cell phone s :
The	 warran t	 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 [in Riley ] has	 explained,	 a	 cell	 phone provides	a	wide

- open	window	into	a	person ’ s	life. “ Cell	phones	.	.	. place	vast	quantities	of	personal	information	literally	in	the	hands of	individuals. ” “ [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. ” The	 extraordinary	 breadth	 and	 sensitivity	 of	 information that	people	may	store	on	their	cell	p hones	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	 wirel ess	 service	 provider	 was	 much	 more circumscribed.

Warner ,	2019	ME	140,	¶¶	27

- 28,	216	A.3d	22	(citing Riley ,	573	U.S.	at	386,	395). [¶ 20 ]	 	 In	 noting	 that	 the	warrant we	 upheld in Warner was	limited	 to “specifically	 identified	 aspects	 of	 Warner ’ s	 cell	 phone	 records,	 covering	 a defined	period,”	we	plainly	endorsed	the	principle	that a warrant	authorizing	a
search	of cell	phone	information,	even	in	the	form	of	provider	records,	should15
be	de fined	by	the	showing	of	probable	cause	made	in	the	affidavit	supporting the	warrant	request. Warner ,	2019	ME	140,	¶	27,	216	A.3d	22. [¶ 2 1]	 	 Other	 courts	 have reached	 and	 discussed overbreadth	 and particularity	in	the	context	of	search	warrants for	cell	phones ,	reaching	varying

outcomes. Compare Burns	v.	United	States ,	235	A.3d	758,	773

- 74	(D.C.	2020) , with United	States	v.	Bishop ,	910	F.3d	335,	337

- 38	(7 th Cir.	2018)

. B. Jandreau’s Overbreadth	 and Particularity	 Argument in	 the	 Trial Court [¶ 22 ] “An	issue	is	raised	and	preserved	if	there	was	a	sufficient	basis	in the	record	 to	alert	 the	court	and	any	opposing	party	 to	 the	existence	of	 that
issue.” Warren	 Constr.	 Grp.,	 LLC	 v.	 Reis ,	 2016	 ME	 11,	 ¶	 9,	 130	 A.3d	 969 (quotation	marks	omitted). The	phra se	“raised	and	preserved”	signifies	that	it is	not	sufficient	for	a	party	to	raise	an	issue	in	the	trial	cou r t	if	the	issue	is	not preserved. In	 his	 brief,	 Jandreau	 contends	 that	 “defense	 counsel	 raised	 the [particularity	 and	 overbreadth]	 argument	 in	 the motion	 to	 suppress,	 at	 the suppression	hearing,	and	again	at	trial.” [¶ 23 ] Jandreau’s	written	motion to	suppress included	a	section on what he	asserted	 to	 be	 the	 overbreadth	and	lack	 of	 particularity	 of	all	 four	 of	 the
search	warrants	issued

. H owever, the	motion	did	not	differentiate	among	the four	 warrants,	 did	 not	 quote	 or	 refer	 to	 any specific	 portion of	 any of	 the16

warrant s , and	did	not	link	its	boilerplate	recitations	of	law	and	citations	to	cases to	any	specific	portion	of	any	of	the	four	w arrants or	affidavits

. The	fact	that the	September	2017	warrant authorizes	a	search	of	Jandreau’s	cell	phone	for five	 separate	 categories	 of	 records	 and	 materials renders problematic Jandreau’s	 failure	 to	 discuss in	 his	 written	 motion any	 specific provision	 or
category

. When	 a	 search	 warrant	 contains	 multiple	 provisions ,	 each authorizing	a	separately	defined	search ,	our	jurisprudence	calls	for	examining the	validity	of	each provision ,	because	a	valid authorization to search that	is
severable	 from	 an	 overbroad , insufficiently	 particular , or	 otherwise	 invalid
authorization may	be	upheld. See	State	v.	Roy ,	2019	ME	16,	¶¶	27

- 28,	201	A.3d
609; State	 v.	 Simmons , 2016 ME 103, ¶¶ 24

- 25, 143 A.3d 819. See also
United States v. Richards , 659 F.3d 527, 537 (6th Cir. 2011) (“Infirmity due to
overbreadth does not doom the entire warrant; rather, it requires the suppression of evidence seized pursuant to that part of the warrant, but does

not require the suppression of anything described in the valid portions of the
warrant.” (quotation marks and alterations omitted)). The	 court’s
characterization	 of Jandreau’s written overbreadth	 and	 particularity
arguments as	“conclusory” is appropriate.17 [¶ 24 ]		At	 the	outset	of	 the	motion	hearing, the	State	asked Jandreau to outline	the	grounds	within	his multifarious motion	to	suppress	that	he actually intended	 to	 press

. Jandreau identified	 the	 issue to	 be	 explored	 at the evidentiary hearing	as	being that	Jandreau	did	not	consent	to	the	search	of	his
cell phone that	 occurred	 after the	 police	 seized	 it	 for	 the	 second	 time , in January 2018. He	also	mentioned what	he	called	“four	corners	arguments,”	but did	not	identify	which	warrant	or	warrants	th ose a rguments	related	to and	did
not	 indicate	 that they	 involved	 any	 factual	 issues that	 would	 require	 the presentation	 of	 evidence. Accordingly,	 the only	 testimony	 presented	 at	 the suppression	 hearing related	 to the	 execution	 of	 the	 January 2018	 search

warrant. [¶ 25 ] After	 the	 presentation	 of	 evidence, Jandreau	 and	 the	 State presented	 closing	 argument s on	 the	 motion. During	 Jandreau’s	 closing,	 he made	a	passing	reference to	the	September	2017	warrant	at issue	in	this	appeal as	having	allowed an overbroad search	of	Jandreau’s cell phone , but he did	not identify	 any	 particular	 warrant	 provisions	 as	 being overbroad and	 did	 not
relate the	facts	set	forth	in	the	affidavit	to	the	scope	of	the	search

. In	sum, both Jandreau’s motion and	the	motion

- hearing	record support	the	motion	court’s ruling	 that	 Jandreau	 did	 not effectively raise	 and preserve the	 issue s of18
overbreadth and	 lack	 of	 par ticularity with	 respect	 to	 the	 September	 2017

warrant

. [¶ 26 ] Jandreau’s motion	 during	 trial did	 nothing	 to	 clarify matters
because	 the	 renewed	 motion did	 not	 relate	 to any	 overbreadth	 or lack	 of particularity in the	September	2017	warrant. The	motion sought the	exclusion
of an	exhibit	containing 343	text	messages between	Jandreau	and	the	mother of	the	child	on	the	ground	that	the	exhibit	failed	to	reproduce emojis	that	had
been part	 of the	 original	 text	 messages

. Th e	 trial	 court’s	 admission	 of	 the
exhibit was	the	subject	of Jandreau’s argument	to	us	on	the best	ev idence	rule and	did	not	involve	the	September	2017	warrant. [¶ 27 ]	 	 We	 conclude	 that the	 motion	 court	 correctly determined that Jandreau’s argument s regarding overbreadth	 and lack	 of	 particularity in	 the September	 2017 warrant w ere raised	 perfunctorily	 but	 never	 developed. Despite	 the	 trial	 court’s	 clear	 decision	 to	 “disregard	 these	 arguments”	 for purposes	of	 Jandreau’s	motion,	 Jandreau	did	not	seek	 to revisit	 the	issues	or
otherwise rectify	the	deficiency	at	any	time	in	the trial	court

. We	conclude	that19
the	 issues	 of lack	 of particularity	 and	 overbreadth in	 the	 September	 2017

warrant were abandoned , and we do	not	address	them	further

. 10 The	entry	is: Judgment affirmed

.

Rory	A.	McNamara,	Esq. (orally) ,	Drake	Law	LLC,	York,	 for	appellant	 Jared	D. Jandreau Aaron	M.	Frey,	Attorney	General , and	Paul	Rucha,	Asst.	Atty.	Gen. (orally) ,	Office of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Kennebec	County	Unified	Criminal	Docket docket	number	CR

- 2020

- 119 F OR C LERK R EFERENCE O NLY

10 Jandreau’s	brief	on	appeal	does	not	contend	that,	if	we	affirm	the	trial	court’s	refusal	to	consider Jandreau’s	 particularity	 and	 overbre adth	 arguments,	 we	 should	 nonetheless	 review	 for	 obvious error. Assuming,	without	deciding,	that	such	review	is	nonetheless	appropriate	when	a	suppression argument	that	was	not	developed	and	therefore	not	considered	in	the	trial	court	is	raised	in	a	direc t appeal, after	a	 review	 of the	 entire	 record we	 conclude that	 the	 denial	 of	 Jandreau’s	motion	was proper	and	did	not	constitute	obvious	error.