MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	16

Docket: And-18-55

Argued: September	13,	2018

Decided: January	29,	2019

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

STATE	OF	MAINE

v.

CHRISTOPHER	W.	ROY

HUMPHREY,	J.

[¶1]	 	 In	 this	 appeal,	 we	 address	 the	 effect	 of	 technology	 on	 the	

constitutional	balance	between	the	particularity	and	timeliness	requirements	

of	a	search	warrant	and	the	ever-expanding	digital	space	into	which	that	search	

may	reach.

[¶2]		Christopher	W.	Roy appeals	from a	judgment	of	conviction	for	three	

counts	of	possession	of	sexually	explicit	material	of	a	minor	under	age	twelve	

(Class C),	 17-A	 M.R.S.	 §	 284(1)(C)	 (2017),	 entered	 in	 the	 trial	 court	

(Androscoggin	County,	MG	Kennedy,	J.) after	Roy	pleaded guilty conditioned	on	

his opportunity	to	appeal	the	denial	of	his	motion to	suppress.		M.R.U. Crim.	P.	

11(a)(2).		We	affirm	the	judgment.
2

I.		BACKGROUND

[¶3]		Viewing	the	evidence	in	the	light	most	favorable	to	the	court’s	order	

denying	 the	motion	 to	suppress,	 the	record	supports	 the following	 facts.		See

State	v.	Sasso,	2016	ME	95,	¶	2,	143	A.3d	124.		On	August	18,	2016,	a	detective	

with the	Maine	State	Police	Computer	Crimes	Unit	used	a	file-sharing	network

to	download	a	file	of	interest	in	child	pornography	investigations.		The	detective	

determined	that	this	file	was	made	available	by	a	device	connected	to	a	certain	

IP	address.1		The	detective	later	viewed	 the	file,	which included	 a video	of	a	

young girl, approximately	 three	 to	 five	 years	 of	 age,	 unclothed	 and being	

sexually	abused	by	an	adult.		

[¶4]	 	 The	 detective consulted	 with	 the	 United	 States Department	 of	

Homeland	 Security	 and	 learned	 that	 the	 IP	 address	 was	 registered	 to	 Time	

Warner	 Cable,	 a	 nationwide	 internet service	 provider.	 	On August	 22,	 2016,	

Time	Warner	informed	the	detective that	Roy	was	the	subscriber	of	the	account

associated	 with that	 IP	 address when	 the	 video	 file	 was	 downloaded and	

 1		An	IP	address	is	a	“unique	string	of	numbers	.	.	.	that	identifies	each	computer	using	the	Internet	

Protocol	 to	 communicate	 over	 a	 network.”	 	IP	 Address,	New	Oxford	 American	Dictionary	 (3d	 ed.	

2010).		According	to	Techopedia.com,	the	IP	address	is	a logical	numeric	address	that	is	assigned	to	

and	identifies	every	computer	or	other	device	that	connects	to	any	internet-based	communications	

network	and	is	the	“core	component	on	which	the	networking	architecture	is	built;	no	network	exists	

without	it.”		Internet	Protocol	Address,	Techopedia,	https://www.techopedia.com/definition/2435/

internet-protocol-address-ip-address (last	 visited	 Jan.	 24,	 2019).	 	 For	 additional	 discussion	 of	 IP	

addresses,	see	United	States	v.	Vosburgh,	602	F.3d	512,	527	(3d	Cir.	2010);	United	States	v.	Forrester,	

512	F.3d	500,	510	n.5	(9th	Cir.	2008).		
3

provided	 the	 detective	 with	 the	 account’s	 service	 address	 in	 Maine.	 	 The	

address	matched	that	of	Roy	on	file	with	the	Maine	Bureau	of	Motor	Vehicles.	

[¶5]		Based	on	this	information, the	detective prepared	an	affidavit	and	

request	for	a	search	warrant.		On	August	31,	2016—thirteen	days	after	learning

that	the	downloaded	file	appeared	on	the file-sharing network	by	way	of	Roy’s	

IP	address—the	detective sought	and	 the	court	issued	a	warrant	authorizing

(a)	 the search	 of	 Roy’s	 residence	 and	 property,	 outbuildings,	 vehicles,	 and	

persons	on	the	property	at	the	time	the	warrant	was to	be executed, and	(b) in	

relevant	 part, the	 seizure	 of	 the	 following	 items	 believed	 to “constitute	

instrumentalities”	 of	 the	 crimes	 of	 illegal	 possession	 and	 dissemination	 of	

sexually	explicit	depictions	of	minors,	17-A	M.R.S.	§§	283,	284 (2017):

1. Images	of	child	pornography,	in	any	form;	

2. Records	 or	 images	 in	 any	 form	 pertaining	 to	 the	

manufacture,	possession	or	receipt	of	child	pornography;

3. Records	or	images	in	any	form	relating	to	the	identity	of	the	

minors	depicted	in	any	seized	images;	

4. Records	 or	 images	 in	 any	 form	 reflecting	 personal	 contact	

with	any	of	the	minors	depicted	in	any	seized	images;

5. Records	 or	 images	 in	 any	 form	 reflecting	 access	 to,	 or	

payment	 for	 access	 to,	 websites	 containing	 or	 relating	 to	

child	pornography;	

6. Computers,	 portable	 electronic	 devices	 and	 digital	 storage	

media	 of	 any	 kind .	 .	 .	 . [A]ny electronic	 system	 or	 device	

capable	 of	 storing	 and/or	 processing	 data	 in	 digital	 form,	
4

including:	 central	 processing	 units;	 laptops	 or	 notebook	

computers;	 personal	 digital	 assistants;	 wireless	

communication	 devices	 such	 as	 telephone	 paging	 devices,	

beepers,	and	cellular	 telephones[;] peripheral	input/output	

[devices] such	 as	 keyboards,	 printers,	 scanners,	 plotters,	

monitors,	 and	 drives	 intended	 for	 remova[ble] media;	

related	 communications	 devices	 such	 as	modem[s],	 cables,	

and	 connections;	 storage	 media	 such	 as	 hard	 disk	 drives,	

floppy	 disks,	 thumb	 drive[s],	 magnetic	 tapes,	 and	 memory	

chips;	and	security	devices; [and]

7. Evidence	in	any	form	suggesting	a	sexual	interest	in	minors	

and	their	activities.		These	items	are	to	include	collections	of	

photographs	 or	 magazines	 containing	 images	 of	 children	

[and/or] adolescents	.	.	.	.

[¶6]		The	next	day,	September	1,	2016,	 the	police	executed	 the	search	

warrant	and	seized nearly	600	sexually	explicit	images	of	children	 that	were	

stored	 on	 a cellular	 telephone	 and	 a microSD	 card	(a	 small	 portable	 digital

media storage	device).		The	ages	of	the	children	depicted	in	the	images	seized	

ranged	from	under	one	year	to	nine	years.		

[¶7]		In	February	2017,	a	grand	jury	returned	an	indictment	charging	Roy	

with	eight	counts	of possession	of	sexually	explicit	material of	a	minor	under	

the	 age	 of	twelve.	 	 See 17-A	M.R.S.	 §	 284(1)(C).	 	 Roy	moved	 to	 suppress	 the	

evidence seized	pursuant	 to	 the	search	warrant.		After	holding	a	hearing,	 on	

December	7,	2017,	the	court	(Androscoggin County,	MG Kennedy, J.)	denied	his	

motion.		
5

[¶8]		In	February	2018,	Roy	pleaded	guilty,	conditionally, to	three	counts	

of	the	indictment and	the	State	dismissed the	remaining	five	counts.		Roy	timely	

appealed.

II.		DISCUSSION

[¶9]	 	 Roy	 argues	 that	 the	 court	 erred	 by	 not	 suppressing	 the	 seized	

evidence	 because	 the	 search	 warrant	 was	 stale,	 failed	 to	 describe	 items	

presumptively	 protected	 by	 the	 First	 Amendment	 with	 “scrupulous	

exactitude,”	and	otherwise	failed	to	describe	the	places	to	be	searched	and	the	

items	to	be	seized	with	sufficient	particularity.

A. Staleness

[¶10]	 	 Roy contends	 that	 the	 court	 erred	 by	 denying his	 motion	 to	

suppress because	 the	 circumstances described	 in	 the	 affidavit	 supporting	

probable	cause	 to	issue	a	 search	warrant—information	 that	the	downloaded

video	 file	 was	 from	 an	 IP	 address	 associated	 with	 Roy’s	 computer—were

thirteen	days	old when	the	warrant	was	issued, rendering	the foundation	for	

the	warrant	stale.	 As	a	result,	he	argues,	by	the	time	the	warrant	was requested	

and issued, the	affidavit	provided	no	basis	to	conclude	that	the	downloaded file	

was	still	in	the place	associated	with	Roy’s	IP	address.		
6

[¶11]		When	reviewing	the denial	of	a	motion	to	suppress	on	grounds that	

the	 information	 relied on	for	 issuing	 a	 search	warrant was	 stale,	 we	 review	

directly	 the	 finding	 of	 probable	 cause	 by	 the	 issuing	 judge,	 giving	 great	

deference	to	that determination, and	we must	draw all	reasonable	inferences	

that support	the	decision to	issue	the	warrant.	 State	v.	Wright,	2006	ME	13,	¶ 8,	

890	A.2d	703 (quotation	marks	omitted).		

[¶12]	 	 “Probable	 cause	 exists	 when,	 based	 on	 the	 totality	 of	 the	

circumstances,	there	is	a	fair	probability	that	contraband	or	evidence	of	a	crime	

will	 be	 found	 in	 a	 particular	 place.”	 	 State	 v.	 Samson,	 2007	 ME	 33,	 ¶	 12,	

916 A.2d 977 (quotation	marks	omitted).		To	meet	this	standard, the affidavit	

supporting	the	warrant	must	set	forth	some	“nexus”	between	the	information	

upon	which	 the	warrant	 relies	and	 the	location	 of	 the	property	 to	be	 seized.		

Id. ¶	15.		Whether	probable	cause	still	exists	at	the	time	a	warrant	is	requested	

is	 determined	 not	 by	 the	 mere	 passage	 of	 time	 between	 observation	 of	 the	

evidence	and	application	for	the	warrant	but	by	the	consideration	of	the	unique	

facts	and	circumstances	of	the	case	at	hand.	 See State	v.	Crowley,	1998	ME 187,

¶	 5,	 714	 A.2d	 834 (time	 between	 circumstances and request for search

warrant);	 State v. Willey, 363 A.2d 739, 742 (Me. 1976) (time	 between	

circumstances and issuance of search warrant).	 	 That	 timeframe, Roy	
7

acknowledges, does	not	lend	itself	to	a	per	se maximum	period	of	time	within	

which	a	search	warrant	must	be	sought.	 See Wright,	2006	ME	13,	¶	9	&	n.3,	

890 A.2d	703.	

[¶13]	 	 In	 Wright,	 we	 were	 presented	 with a	 similar	 challenge	 to	 the	

timeliness	 of	 a	 warrant	 in	 a	 child	 pornography	 investigation	 where	 at	 least	

eighty	days	had	elapsed between	the	occurrence	establishing	probable	cause	

and	the	issuance	of	the	warrant.		Id.	¶	7.		The affiant	cited the	opinions	of	experts	

in	 child	 pornography	 investigations to	 support	 his	 assertion	 that those who	

collect	 child	 pornography	 are	 “likely	 to	 retain	 the	 images” for	 long	 periods,

sometimes	“indefinitely,”	rather	than	disposing of	them.	 Id.	¶¶	7,	11. We	held	

that	in	the	context	of	a	child	pornography	investigation,	the	passage	of	eighty	

days	between	the	observation	of	a	crime	and	the	application	for	a	warrant	is	

not	 too	 long	 to	 render	 the	 information	 stale	 because	 of	 the	 demonstrated	

propensity	 of	 its	 consumers	 to	 retain	 the	 images	 for	 long	 periods	 of	 time.		

Id. ¶ 11;	 see	 also United	 States	 v.	 Seiver,	 692	 F.3d	 774,	 778	 (7th	 Cir.	 2012)

(noting	 that	 a	 central	 inquiry	 into	 staleness	 in	 a	 child	 pornography	

investigation requires	 a	 “realistic	 understanding	 of	 modern	 computer	

technology	and	the	usual	behavior	of	its	users”). Other	courts	have	held	that,	

in	 the	 context	 of	 a	 child	 pornography	 investigation, much	 longer	 periods	 of	
8

time—even	years—may	pass without	the	information	relied	on	for	a	warrant	

becoming	stale.2		

[¶14]		In	this	case,	the	detective’s affidavit describes	practices	by	which	

electronic	 forms	of	child	pornography	are	commonly	received,	collected,	and	

retained	 for	 considerable	 lengths	 of	 time,	 and	 the	 affidavit	 outlines	 the	

detective’s	 training	and	investigatory	experience	in	child	pornography	cases.		

As	in	Wright,	this	detailed	information	is	sufficient	to demonstrate	that,	given

the	 short	 time	 between	 the	 download	 on	 August	 18 and	 the	 request	 for	 a	

warrant on	August	31—only	thirteen	days—and considering the	nature	of	the	

contraband at	issue,	the	court	had	a	substantial	basis on	which to	conclude	that	

the	file	of	interest	identified	in	the	affidavit would	still	be	in	Roy’s	possession	

on	his	computer	or	accessible	by	his electronic	devices.		The	information	 the	

court	relied	on	was	not	stale	and the	court	did	not	err	in	so	ruling.		

 2		See, e.g.,	United	States	v.	Carroll,	750	F.3d	700,	704	(7th	Cir.	2014) (five	years);	United	States	v.	

Frechette,	 583	 F.3d	 374,	 378-79	 (6th	 Cir.	 2009) (sixteen	 months);	 United	 States	 v.

Morales-Aldahondo,	 524	 F.3d	 115,	 119	 (1st	 Cir.	 2008) (three	 years);	 United	 States	 v.	 Irving,	

452 F.3d 110,	115,	125	(2d	Cir.	2006) (two	to	five	years);	United States v. Hay, 231 F.3d 630, 636

(9th Cir. 2000) (six	months);	United States v. Horn, 187 F.3d 781, 786-87 (8th Cir. 1999) (three	

months);	United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997) (ten	months);	United States v.

Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 1993) (two	 to	 fifteen	 months);	 United	 States	 v.	 Coffin,	

No. 1:17-cr-00025-JAW,	2018	U.S.	Dist.	LEXIS	17183,	at	*2-4,	11-12	(D.	Me.	Feb.	2,	2018)(one	year);	

United States v. Albert, 195 F. Supp. 2d 267, 271-72 (D. Mass. 2002) (four	to	five	months).
9

B. Constitutional Adequacy

[¶15]	 	 Roy	 next	 argues that	 the	 search	 warrant	 was	 constitutionally	

deficient	in	that	(1)	it	did	not	describe	the	items	to	be	seized	with	scrupulous	

exactitude, resulting	 in	 the	 seizure	 of	 material	 protected	 by	 the	 First	

Amendment	for	the	ideas	they	contained, and	(2)	it	otherwise	failed	to	describe	

the	places	to	be	searched	and	the	items	to	be	seized	with	sufficient	particularity.		

“[A] decision	as	to	the	constitutional	adequacy	of	a	search	warrant	is	a matter	

of	 law” that	 we	 review	 de	 novo.	 	 State	 v.	 Pelletier, 673	 A.2d	 1327,	 1329	

(Me. 1996) (footnote	omitted).	

1. Scrupulous	Exactitude

[¶16]		The	Fourth	Amendment requires “the	most	scrupulous	exactitude”	

when	 the	First	Amendment	 protects	 the	things	 to	be	 seized,	 such	 as	images,	

books,	or	magazines,	“and	 the	basis	 for	 their	 seizure	is	 the	ideas	which	 they	

contain.”	 Stanford	v.	Texas,	379	U.S.	476,	485	(1965).		“First	Amendment	rights	

and	the scrupulous	exactitude	standard are	not	implicated,	however,	when	the	

materials to	be	seized	are	sought	as	evidence of	a	crime and	not	for	the	ideas	

which	 they	 contain.” State	 v.	 Lehman,	 1999	 ME	 124,	 ¶	 13,	 736	 A.2d	 256

(emphasis	added)(quotation	marks	omitted);	see	also	United	States	v.	Stelten,	

867	F.2d	446,	450-51	(8th	Cir.	1989).
10

[¶17]	 	 Roy	 argues	 that	 the	 warrant	 undermined	 these	 constitutional	

protections	because	it	did	not	sufficiently	limit	the	search	to	illegal	items.		He	

relies	 on	 a	 decision	 of	the	 Washington Supreme	 Court	 invalidating	 a	 search	

warrant	that	 authorized	 the	 seizure	 of “materials	 that	were	legal	 to	possess,	

such	 as	 adult	 pornography	 and	 photographs	 that	 did	 not	 depict	 children	

engaged	in	sexually	explicit	conduct.”		State	v.	Besola,	359	P.3d	799,	800,	803	

(Wash.	2015).		The	court	determined	that	neither	the	warrant’s	reference	to	the	

child	pornography	statute	nor	its	alleged	application	to	images	“material	to	the	

[child	 pornography]	 investigation”	 was sufficient to constitutionally	

circumscribe	the	scope	of	its authorization.		Id.

[¶18]		The	warrant	here	suffers	no	such	deficiency.		Based	on	the affidavit

supporting	 the	 application	 for	 issuance	 of	 a	 search	 warrant,	 the	 warrant	

authorized	 the	 seizure	of	certain	items	because	there	was	probable	cause	 to	

believe	they contained evidence	of	Roy’s	illegal	possession	and dissemination	

of	 sexually	 explicit	 depictions	 of	minors,	 not	 because	 of	 any	 particular	ideas

they	might	contain.		See Lehman,	1999	ME	124,	¶	14,	736	A.2d	256. The	search	

warrant’s	description	of	the	items	to	be	seized	and	the	purpose	for	their	seizure

did	not	implicate	the	heightened	“scrupulous	exactitude”	standard.
11

2. Sufficient	Particularity

[¶19]		Roy	also	contends	that,	even	if	the	scrupulous	exactitude standard	

does not	 apply, the	 warrant	 was	 overbroad	 and	 lacked	 the	 particularity	

required	by	the	United	States and	Maine	Constitutions	because (1)it	authorized

an	expansive	search	of	all	“computers,	portable	electronic	devices	and	digital	

media	of	any	kind” located	on	any	person or	at	any	place	on	Roy’s	property at	

the	 time	 of	 the	 search,	 and	 (2)	 it	 authorized	 a	 search	 for	 and	 seizure	 of	

“collections	of	photographs	or	magazines	containing	images	of	children	and	or	

adolescents.”	 	 “The	 issue	 of	 whether	 [a] search	 warrant	 lacks	 the	 required	

specificity	as	to	the	place	and	items	to	be	searched	is	an	issue	of	constitutional	

adequacy	that	we	review	de	novo.”		Id. ¶	7.

[¶20]		The	Fourth	Amendment	of	the	United	States	Constitution	requires	

that	a	search	warrant	must	“particularly	describ[e]”	the	places to	be	searched	

and	 the	 things to	 be	 seized.	 	 U.S.	 Const.	 amend.	 IV.	 	 Similarly,	 Maine’s	

Constitution	requires	that	the	warrant	make	a	“special	designation of	the	place	

to	be	searched,	and	the .	.	. thing	to	be	seized.”	 Me.	Const.	art.	I,	§	5.3		A warrant	

 3		Article	1,	section	5,	provides	that:		

The	people	shall	be	secure	in	their	persons,	houses,	papers	and	possessions	from	all	

unreasonable	searches	and	seizures;	and	no	warrant	to	search	any	place,	or	seize	any	

person	or	thing,	shall	issue	without	a	special	designation	of	the	place	to	be	searched,	
12

must	describe	the	property	with	“such	particularity”	that	the	executing	officer	

can	identify	the	item	to	be	searched	or	seized	“with	certainty”	and	is	left	with	

no	discretion as	to	what	is	to	be	taken.		Lehman,	1999	ME	124,	¶ 8,	736	A.2d 256

(quotation	marks	omitted).		

a. Description	of	Devices

[¶21]		We	have previously	considered	the	particularity	requirements	of	

warrants to	 search	 computer	 files	 in	 child	 pornography	 investigations.	 	 In

Lehman,	 we	 held	 that	 a	 warrant	 was	 sufficiently	 particularized when	 it	

authorized	 the	 search	 of	 “all	 computer	 equipment	 and	 computer	 related	

equipment” and	software	that Lehman	would	have	been	able	to	access	when he

was	alleged	to	have	taken	sexually	explicit	nude photographs	of	three	underage	

girls	with	a	digital	camera	and	downloaded	those	photographs	onto	a	computer	

in	his	home.4		Id. ¶¶ 2-3,	10.		We also rejected the	argument	that	the	warrant	

should	 have	 been	limited	to	one	 particular computer	in	 Lehman’s residence	

that	was	specifically	implicated	by	one	of	the	three	photographed	girls	because	

the	other	two girls	stated	that	the	images	were	downloaded	to	a	computer in	

 

and	the	person	or	thing	to	be	seized,	nor	without	probable	cause—supported	by	oath	

or	affirmation.

4		The	evidence	included	a	“detached	hard	drive	in	the	basement	of	Lehman’s	house.”		State	v.	

Lehman,	1999	ME	124,	¶	4,	736	A.2d	256.
13

his	home,	not	specifying	which	computer was	used.		Id. ¶	11.		We	concluded	that	

the nexus	 between	 the evidence	 sought	 and	 the	 places	 to	 be	 searched—all	

computers, computer-related	equipment,	and	software	in	the	home—was	“as	

specific	 as	 the	 circumstances” of	 the	 allegations	 and	“nature	 of	 the	 activity	

under	 investigation	 permit[ted].”	 	 Id. ¶ 10 (quoting	 Davis	 v.	 Gracey,	

111 F.3d 1472,	1478 (10th	Cir.	1997)).		

[¶22]		The	First	Circuit	applied	similar reasoning	when	it	considered the	

particularity	 of	 a	 warrant	 authorizing the	 search	 of	 “[a]ny	 and	 all	 computer	

software	and	hardware . .	.	.”	 United	States	v.	Upham,	168	F.3d 532,	535 (1st Cir.	

1999). There,	the	defendant	was	alleged	to	have	used a	computer	in	a	home to	

send	and	receive	files	containing	child	pornography	over	several	months.		Id. at	

533.	 	 The	 defendant	 argued	 that	 the	 warrant	 was	 too	 broad in	 both	 its	

authorization	of	places	to	search	(computer	hardware	and	software)	and	in	the	

scope	of	the	content	it	was	authorized	to	seize (“any image”	of	a	minor).	 Id.	at	

535,	536	n.1.		Rejecting	both	arguments,	the	court	concluded	that	the	scope	of	

the	warrant closely	tracked	the	probable	cause	determination	that	a	computer	

had	been	used	to	transmit	the	images, and	thus	“the	computer	and	all	available	

disks”	 were	 implicated by	 that	 determination.	 	 Id.	 at	 535.	 	 The	 court	 also	

concluded	 that,	despite	the	warrant’s	broad	authorization,	it	was	 sufficiently	
14

limited	 to	 depictions	 of	 minors	 “engaging	 in	 sexually	 explicit	 conduct [as	

defined	 by	 the	 statute].”	 Id. Given	 the	 basis	 for	 the	 probable	 cause

determination,	 the	 search	 was “about	 the	 narrowest	 definable	 search	 and	

seizure	 reasonably	 likely	 to	 obtain	 the	 images”	 and “not	 inherently	 more	

intrusive	than	the	physical	search	of	an	entire	house	for	a	weapon	or	drugs.”		Id.		

[¶23]		Here,	Roy	argues that	the	warrant is	unconstitutionally	broader	

than	 those	 in	 Lehman and	 Upham because	 it	 authorized	 the	 seizure	 of	 any	

“[c]omputers,	portable	electronic	devices	and	digital	storage	media	of	any	kind”	

located	on	 the property associated	with	 the	 IP	address,	on	 any	 person on	 the	

property,	and in	any	vehicle on	the	property.		We	disagree.

[¶24]		The	digital	world	is	not	a	static	place; advancements	in	computer	

technology	 continue	 to	 make obtaining	 and	 accessing illicit	 digital	 files

increasingly	 easy while	 making detection	 more difficult.	 	 See, e.g.,	 United	

States v.	 Johnson,	 221	 F.3d	 83,	 99	 (2d	 Cir.	 2000);	 United	 States	 v.	 Knowles,	

207 F. Supp. 3d	585,	591-92,	604	 (D.S.C.	2016); United	States	v.	Cunningham,	

680	F.	Supp.	2d	844,	856 (N.D.	Ohio	2010).		Thus,	when	considering the	nature	

and	 circumstances	 of	 Roy’s	 alleged	 illegal	 activity,	 and	 the	 increased	

sophistication and	 mobility	 of	 devices	 capable	 of	 downloading,	 storing, and	

transmitting	 child	 pornography in	 the	 years	 since Lehman and	Upham were	
15

decided,	the	warrant’s	description	of	electronic	devices	that	the	officers	were	

authorized	to	search	and	seize is	not overly	broad because	of	its authorization

to	 search	 Roy’s	 residence,	 property,	 and	 any	 persons	 and	 vehicles	 on	 his	

property	 at	 the	 time	 of	 the	 search,	 see	 Lehman,	 1999	 ME	 124,	 ¶¶ 10-11,	

736 A.2d	256	(acknowledging	the	inherent	mobility	of computer	equipment),	

or	because of its authorization to	seize various	electronic	devices	and	digital	

media,	see Upham,	168	F.3d	at	533, 535	(concluding	 that	 the	 transmission	of	

images	 depicting	 child	 pornography	 through	 the	 Internet	 from	 an	 account	

linked	to	the	defendant	established	probable	cause	demonstrating	a	“sufficient	

chance	of	finding	some	needles	in	the	computer	haystack”).		

[¶25]	 	 The	 warrant’s	 authorization	 was	 as	 specific	 and	 limited	 as	 the	

circumstances	 would	 allow and	 satisfied	 the	 constitutional	 requirement	 for	

particularity.		

b. Description	of	Photographs	and	Magazines

[¶26]		The	warrant	authorized	the	police	to	search	for	and	seize	specified	

items	 believed	 to	 “constitute	 instrumentalities”	 of	 the	 crimes	 of	 illegal	

possession	 and	 dissemination	 of	 sexually	 explicit	 depictions	 of	 minors,	

including

[e]vidence	in	any	 form	suggesting	a	sexual	interest	in	minors	and	

their	 activities.	 	 These	 items	 are	 to	 include	 collections	 of	
16

photographs	or	magazines	containing	images	of	children	[and/or]

adolescents	.	.	.	.		

In	 spite	 of	 this	 limiting	 language,	 Roy	 argues	that	 the	 warrant	 is	 overbroad	

because	some	photographs	and	magazines	 that	contain	images	of	minors	are	

not	evidence	of	criminal	conduct.		We	need	not	reach	this	argument.

[¶27]	 	 In	 the	 abstract,	 it is	 correct	 that	 possession	 of	 some	 types	 of	

photographs or	magazines depicting	a	minor	is	not	criminal	behavior	and	does	

not	have	evidentiary	value.		That	may	not	be	true,	however,	when	the	person	in	

possession	of	such	facially	benign	materials	is	also	engaging	in	criminal	conduct	

involving	 child	 pornography.	 	 On	 this	 appeal,	 we	 need	 not	 determine	 the	

location	of	that	line	because,	even	if	this	aspect	of	the	warrant	is	overbroad,	it

is	severable	from	the	remaining	portions	of	the	warrant,	which,	for	the	reasons	

explained	 above,	 are	 lawful.	 	 See	 State	 v.	 Simmons,	 2016	 ME	 103,	 ¶¶	 24-25,	

143 A.3d	819.		Electronic	devices	are	“readily	identifiable	and	distinguishable	

from”	photographs	and	magazines	with	images	of	minors,	and	the	information	

contained	 in	 the	 warrant	 about	 devices	 is	 the	 most	 significant	 part	 of	 the	

presentation.	 	These	 factors	 allow	 legal	 portions	 of	 a	 warrant	 to	 be	 severed	

from	any	illegal	parts	of	it.		See	id.

[¶28]		Further,	and	significantly,	the	inventory	of	items	seized	pursuant	

to	 the	 warrant,	 see	 M.R.U.	 Crim.	 P.	 41(g),	 which	 is	 included	 in	 the	 record	
17

presented	to	the	trial	court,	reveals	that	although	the	police	seized	a	number	of

devices	and	electronic	parts,	they	did	not	seize	any	photographs	or	magazines.		

This	factor	also	weighs	in	favor	of	severance.		See	Simmons,	2016	ME	103,	¶	26,	

143 A.3d	 819;	see	 also	United	 States	 v.	 Richards,	659	 F.3d	 527,	 537	 (6th	 Cir.	

2011) (stating	that	an	“[i]nfirmity	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”	(alteration	 omitted)	(emphasis	 added)	

(quotation	marks	omitted)).		Therefore,	overbreadth,	if	any, in	this	portion	of	

the	warrant	is	severable	from	the	remaining	aspects	of	the	warrant	and	would

not	require	suppression	of	the	evidence	 that	was	seized,	because	 the	seizure	

was	wholly	lawful.

[¶29]		The	court did	not	err	in	denying	the	motion	to	suppress.		

The	entry	is:

Judgment	affirmed.	
18

Tina	Heather	Nadeau,	 Esq. (orally),	 The	 Law	 Office	 of	 Tina	Heather	 Nadeau,	

PLLC,	Portland,	for	appellant	Christopher	W.	Roy

Andrew	S.	Robinson,	District	Attorney, and	Patricia	A.	Mador,	Asst.	Dist.	Atty.

(orally),	Lewiston,	for	appellee	State	of	Maine

Androscoggin	County	Unified	Criminal	Docket	docket	number	CR-2016-2917

FOR	CLERK	REFERENCE	ONLY