MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2022 ME 59

Docket: Ken-21-328

Argued: July	6,	2022

Decided: December	6,	2022

Panel: STANFILL,	C.J.,	and MEAD,	JABAR,	HORTON,	CONNORS, and	LAWRENCE, JJ.

STATE	OF	MAINE

v.

JARED	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	 smartphone1 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	term	“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	Phone,	Webster’s	
2

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 affirm	Jandreau’s	

conviction.

New	World	College	Dictionary	(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	search	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,	he	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	keenly	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	courtroom	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	complied	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]		Viewed	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	record.”

(quotation	marks	omitted)).

some	of	which	had	contained	emojis	that	did	not	appear	in	the	admitted	text	messages because	the	

State’s	data	extraction	program	could	not	reproduce	emojis.	 “An	original	writing .	.	.	is	required	in	

order	 to	prove	its	content	unless	[the	Maine	Rules	 of	Evidence] or	a	 statute	provides	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	

between	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,	does	not	necessarily	infringe	upon

a	defendant’s	right to	require	the	State	to	prove	its	allegations	at	trial.		“It	is	to	be	expected	that,	on	

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	likely	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	discussion.
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	smartphone. On September	8,	2017, the	police	

applied for	a warrant	 to	 search the	 cell	phone.	 	The	affidavit	 supporting	 the	

warrant	 request	 included,	 in	 pertinent	 part, the	 following	 supporting	

information:

• The	alleged	victim of	the	sexual	assault	said	that	she	had	met	Jandreau

on	match.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	was	sexual	in	nature.

• The	alleged	victim	said	that	after	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	asking him	to	have	sex	with	her.”

[¶4]	 	The	 same	 day,	 the	 court	issued 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.]

Communication	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	extracted	material and	found	two	

images of	a	child,	one	of	which he	believed	constituted child	pornography.

[¶6]		The	prosecutor	reported	the	images 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.		The	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 reaccess	

the	 data that	 had	 been	 extracted 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	 child	 as	 the	 photos	

identified	by	the	prosecutor	in	December	2017.

[¶8]		On	January 24, 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,	the	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,	 and	 (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	January	2018	search	warrant,	although	

the September	 2017	 search	 warrant	 and supporting affidavit were	 also	

admitted	as	exhibits.		The	court	denied	the	motions to	suppress	and	dismiss	in	

a	written	order, determining 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	committing	a	crime,	that	

the	warrants	failed	to	establish	a	nexus	between	the	place	searched	
8

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	conclusory	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	which	were	fully	briefed.

[¶10]	 	 The	 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

[¶11]		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	 timely	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

[¶12]	 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’s7 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

[¶13]	 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,	 our	 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	cause	shown,	the	court	may	entertain	[a	motion	to	suppress]	

at	a	time	beyond	that	provided	in	Rule	12(b)(3).”).
10

A. Legal	Overview

[¶14]		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	Court	

has	explained,

[t]he	 manifest	 purpose	 of	 this 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	justifications,	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,	84-85 (1987) (quotation	marks	and	footnote	

omitted).
11

[¶15]	 	 We	 review	 with	 deference	 a	 judicial	 officer’s	 determination	 of	

probable	cause	supporting	the	issuance	of	a	search	warrant. See 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.	Rarick,	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.	 See 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	warrant	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	

particularity	 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

[¶16]	 	Although	 courts	 generally	 apply	traditional	 Fourth	 Amendment	

principles	when	considering	searches	of	computers and	cell	phones,	searches	

of	these	objects	present	unique	concerns.		See,	e.g., Riley	v.	California,	573	U.S.	

373,	 393-98	 (2014);	 Commonwealth	 v.	 Dorelas,	 43	 N.E.3d	 306,	 312	 (Mass.

2016).

[¶17]		Neither	we	nor	the	United	States	Supreme	Court	have	considered	

the	particularity	requirement	in	the	context	of	warrants	to	search	cell	phones,	

although	 we	 have	 addressed	 the	 requirement	 in	 the	 context	 of	 searches	 of	

computers and	data	from	cell	phone providers.		See,	e.g., State	v.	Warner,	2019	

ME	140,	216	A.3d	22.

[¶18]		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	smartphone

incident	to	lawful	arrest	without	first	obtaining	a	warrant.		573	U.S.	at	403.		The	

Court	expounded	the	reasons	that	cell	phones	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	 far	
13

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	date	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	 reconstruct	 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	394-97	(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	obtain	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

[¶19]		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	phones given	the	breadth	

of	information	contained	on	cell	phones:

The	 warrant	 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	phones	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	 wireless	 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,	should	
15

be	defined	by	the	showing	of	probable	cause	made	in	the	affidavit	supporting	

the	warrant	request.	 Warner,	2019	ME	140,	¶	27,	216	A.3d	22.

[¶21]	 	 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	(7th 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	phrase	“raised	and	preserved”	signifies	that	it	

is	not	sufficient	for	a	party	to	raise	an	issue	in	the	trial	court	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.		However, the	motion	did	not	differentiate	among	the	

four	 warrants,	 did	 not	 quote	 or	 refer	 to	 any	 specific	 portion of	 any	 of	 the	
16

warrants,	and	did	not	link	its	boilerplate	recitations	of	law	and	citations	to	cases	

to	any	specific	portion	of	any	of	the	four	warrants 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	those arguments	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	 arguments 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	 issues of	
18

overbreadth and	 lack	 of	 particularity 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. The	 trial	 court’s	 admission	 of	 the	

exhibit	was	the	subject	of	Jandreau’s	argument	to	us	on	the	best	evidence	rule	

and	did	not	involve	the	September	2017	warrant.

[¶27]	 	 We	 conclude	 that	 the	 motion	 court	 correctly	 determined	 that	

Jandreau’s	 arguments regarding	overbreadth	 and	lack	 of	 particularity	in	 the	

September	 2017	 warrant	 were 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	that	
19

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

FOR	CLERK	REFERENCE	ONLY

10		Jandreau’s	brief	on	appeal	does	not	contend	that,	if	we	affirm	the	trial	court’s	refusal	to	consider	

Jandreau’s	 particularity	 and	 overbreadth	 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	direct	

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.