MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 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.	Ro y 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)	 (201 7 ) , entered	 in	 the trial	 c ourt (Androscoggin	County, MG	Kennedy,	J .) after Roy	plea d ed guilty conditioned	on
his opportunity to	ap peal	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	Polic e	Computer	Crimes	Unit	used a	file

- sharing	network to	download	a	file	of	interest	in	child	pornography	investigations. The	d etective determined	that	this	file	was	made	available	by	a	device	connected	to	a	certain
IP	address. 1 The	d etective 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	 U nited S tates 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 w as	the	subscriber	of	the account associated	 with that	 IP	 address when	 the video	 file	 was download ed 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 logi cal	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.” Inter net	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	o n	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 c ourt 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 believe d	 to “constitute instrumentalities”	 of	 the	 crimes	 of	 illegal	 possession	 and	 dissemination	 of sexually	explicit	depictions	of	minors , 17

- A	M.R.S.	§§	283,	284 (201 7 ) : 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	image s ; 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, beeper s,	and	cellular	 telephones [;] peripheral	input/output [ devi c es ] 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	 su ch	 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	 mag azines	 containing	 images	 of	 children [ and /or] adolescents	.	.	.

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

warrant and seiz ed 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,	 o n December	7,	2017,	the c ourt	( 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	dismiss ed 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	an d	the items	to	be	seized	with	sufficient	particularity.
A. S taleness [¶1 0 ]	 	 Roy contends	 that	 the	 court erred	 by	 denying his	 motion	 to
suppress because	 the circumstance s described in the affidavit	 supporting probable	cause	 to	issue	a	 search	warrant

— information	 that the	download ed
video	 file was from	 an	 IP	 address	 associated	 with	 Roy’s	 computer

— w ere 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	download ed file

was still in the place	associated	with	Roy’s	IP addres s .6 [¶1 1 ] When	reviewing the denial	of	a	motion	to	suppress	on	ground s 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	th at determination , and we must draw all	reasonable	inferences

t hat support	the	decision to	issue	the	warrant

. State v.	Wright ,	2006	ME	13,	¶ 8, 890	A.2d	703 (quotation	marks	omitted). [¶1 2 ] “ 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

. W hether	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	an d	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, Roy7 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

. [¶1 3 ] 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 t he warrant

. Id

. ¶	7

. The affiant cited the	opinions	of	experts in	 child	 pornography	 investigation s to	 support	 his	 assertion	 that those who collect	 child	 pornography	 are	 “ likely	 to	 retain	 the	 images” for	 long	 periods, sometimes	“indefinitely,”	r ather than	disposing of	them. Id .	¶¶	7,	11. W e 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”)

. O ther	courts	have	held	that, in	 the	 context	 of	 a	 child	 pornography	 investigation , much	 longer	 periods	 of8 time

— even	years — may	pass without	the	information	relied	on	for	a	warrant becoming	stale. 2 [¶1 4 ] In	this	case, the	detective’s affidavi t 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, t his	detailed	information	is	sufficient	to demonstrate	that, given the	 short time	 between	 the	 download on	 August	 1 8 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 .		T he 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 7 81, 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 [¶1 5 ] Roy	 next	 argu es 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 [¶1 6 ]		The	Fourth	Amendment require s “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)

. “ F irst A mendment	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,	45 0

- 5 1	(8th	Cir.	198 9 )

.10 [¶1 7 ]	 	 Roy	 argues	 that	 the	 warrant undermined these	 constitutional protections because it	did	not	sufficiently	limit	the	search	to	illegal	items. H e 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)

. T he court determined that	neither	the	warrant’s	re ference	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

. [¶1 8 ]		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	the y contain ed evidence of	Roy’s illegal possession and dissemination of	 sexually	 explicit	 depictions	 of	minors ,	 not	 because	 of	 any	 particular	idea s they might contain

. See Lehman ,	1999	ME	124,	¶	14,	736	A.2d	256

. T he	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	Particularit y [¶1 9 ]		Roy also contends	that ,	even	if the scrupulous	exactitu de standard
does not	 apply , the	 warrant	 was	 overbroad and	 lacked	 the	 particularity required	by	the United	States and	Maine	Constitutions because (1) it	authoriz ed 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	pr operty 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	place s 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	seiz ed. ” M e .	Const. a rt.	I,	§	5. 3 A warrant

3 Article	1,	section	5,	provides	that: The	people	shall	be	secure	in	their	persons,	hous es,	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 ,	19 9 9	ME	124,	¶ 8,	736	A.2d 256 (quotation	marks	omitted).

a. Description	of	Devices [¶ 2 1]		W e	have previously	considered the	particularity requirements	of

warrant s to	 search computer	 files	 in	 child	 pornography	 investigation s . I n 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 reject ed 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	t wo girls	stated	that	the	images	were	downloaded	to a	computer in

and	the	person	or	thing	to	be	seized,	nor	witho ut	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,	147 8 (10th	Cir.	1997) ). [¶ 22 ] The	First	Circuit applied similar reasoning when it consider ed the particularity	 of a	 warrant	 authoriz ing the	 search	 of	 “[a]ny	 and	 all	 computer
software	and	hardware

. .	.	.” United	States	v.	Upham , 1 68	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,	t he	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 sufficiently14 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 t he	warrant is unconstitutionally broader
than	 those	 in Lehman and Upha m b ecause 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 ] T he digital	world	is	not	a	static	place ; advancements	in computer technology continue	 to	 make obtaining	 and	 accessing illicit	 digital	 files increasingly eas y 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 ,	w hen	c onsidering 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 were15 decided, the warrant ’s description	of	electronic	devices	that	the	officers	were
authorized	to	search	and	seize is not overly	broad because of it s authoriz ation

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 it s authoriz ation to seiz e 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	 sp ecific	 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	 collec tions	 of16 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 ] I n	 the	 abstract ,	 it is	 correct that possession	 of some types	 of photograph s or	magazine s 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	 appe al,	 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,
14 3 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 presentatio n. These	 factors	 allow	 legal	 portions	 of	 a	 warrant	 to	 be	 severed from	any	illegal	parts	of	it. See	id. [¶ 28 ] Further,	and	s ignificantly,	the	inventory	of	items	seized	pursuant to	 the	 warrant, see M.R.U.	 Crim.	 P.	 41(g),	 which	 is	 included	 in	 the	 record17 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 , 14 3 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	n ot	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 ] T he	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 F OR C LERK R EFERENCE O NLY