MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	140

Docket: Kno-18-220

Argued: February	5,	2019

Decided: August	29,	2019

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

STATE	OF	MAINE

v.

MICHAEL	J.	WARNER	II

SAUFLEY,	C.J.

[¶1]		The State appeals	from the	combined order of	the	Superior	Court	

(Cumberland,	 Kennebec,	 and	 Knox	 Counties,	 Murphy,	 J.)	 granting	 Michael	

J. Warner II’s motion	 to	suppress	evidence	obtained	pursuant	 to (1) a	search	

warrant	 for	 Warner’s	 cell phone account	 data authorized	 by	 Judge	 Dow on	

September	9,	2015,	and	(2)	a	search	warrant	for	codefendant	Taylor	Shultz’s	

cell phone account data	authorized by	Justice	Mills	on	September	 14,	2015.1

The	State	argues that	Warner	lacked	standing	to	challenge	the	warrant	issued	

to	 search	 Shultz’s	 account data	 and that	 the	 court (Murphy,	 J.) erred	 in	

determining	that	 neither search	 warrant	 was supported	 by	 probable	 cause.		

 1		Neither	Taylor	Shultz	nor	Charles	York,	another codefendant,	is	a	party	to	this appeal.
2

Because	we conclude	that	(1)	the	affidavit	for	the	September	9,	2015, warrant

to	 search	 Warner’s	 account data was	 supported	 by	 probable	 cause, and	

(2) Warner	lacked standing	 to	challenge	 the	September	14,	2015,	warrant to	

search	 Shultz’s	 account data, we	 vacate	 the	 order to	 the	 extent	 that	 it	

suppresses the	evidence	obtained	through	those	two warrants.

I.		BACKGROUND

[¶2]		The	 following	 facts	are	drawn	 from	the affidavit	in	 support	 of	an	

application, dated	 September	 9,	 2015, for	 a	 warrant to	 search	Warner’s	 cell

phone	account data.		See	State	v.	Nunez,	2016	ME	185,	¶	20,	153	A.3d	84.

[¶3]		On	July	30,	2015,	a	deputy	of	the	Kennebec	County	Sheriff’s	Office	

responded	 to	 a	 reported	 burglary	 at	 Tobey’s	 Grocery	 in	 China,	 Maine.	 	 An	

employee	at	Tobey’s	Grocery	showed	the	deputy video	surveillance	footage	of	

the	 store	at	 the	 time	 of	 the	burglary.		 The footage	 showed two	men	 running	

from	a	park-and-ride near	Tobey’s	Grocery to	propane	tanks	next	to	the	store.		

One	 individual was	 wearing	 dark	 pants, a	 dark	 hooded	 sweatshirt,	 gloves,	 a	

camouflage	face mask	and	hat,	and dark	shoes	with	white	on	the	sides of	the	

soles. That individual pried	open	a	back	door	to	the	store, kicked the office	door	

open,	found	cash,	took	it,	and	then	left.		During	this	time,	the	surveillance	video	
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showed	 a	 small, dark-colored, four-door	 car,	 believed	 to	 be	 a	 Volkswagen,	

moving through	the	Tobey’s	Grocery	parking	lot.

[¶4]		A Maine	State Police trooper and	his	partner arrived	at	the	scene	to	

assist	the	deputy,	and one	of	them noted	the	similarity	between	the	burglary	at	

Tobey’s	 Grocery	 and	 a	 number	 of	 other	 commercial	 burglaries	 that	 had	

occurred	in	the	area.

[¶5]		Later	that	day,	the	same	trooper received	a	report	from	a	manager	

at	Tobey’s	Grocery	that	an	employee	of	Cumberland	Farms	in	Brunswick	had	

reported finding	a	blue	money	bag	with	checks	written	out	to	Tobey’s	Grocery	

in	the	dumpster	near	the	gas	pumps.		The	trooper and	his	partner went	to	the	

Cumberland	 Farms	 store,	 collected	 the	 money	 bag,	 and	 watched	 the	 store’s	

video	 surveillance footage.		In	 that	 footage,	a	Volkswagen	sedan	pulled up	in	

front	of	the	store	at	12:54	a.m. on	July	30,	2015.		Three	men	exited	the	vehicle.		

Two	 of	 the	men	walked	into	 the	store	while	 the	driver	 removed	some	items

from	 the	 trunk,	 walked	 to a	 dumpster	 near	 the	 gas	 pumps, and	 returned	

without	the	items	in	his	hands.		The	driver	then	walked	into	the	store. From	

the	video,	the	trooper was	able	to	identify	the	driver	as	Warner.		Before leaving	

Cumberland	 Farms,	 the	 trooper and	 his	 partner checked	 the	 dumpster	 and	
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found	 a	 second	 money	 bag,	 a	 size-13	 black	 sneaker,	 and	 a	 blue	 hooded	

sweatshirt.

[¶6]		The	 trooper forwarded	 photographs	 of	 the	 other	 two	individuals	

from	 the	 Cumberland	 Farms	 surveillance	 footage	 to	 the	 Biddeford	 Police	

Department.		The Biddeford	police were	able	to	identify	one	of	the	individuals	

as	Shultz.

[¶7]	 	 The	 trooper	 then learned	 through	 a	 motor	 vehicle	 check	 that	

Warner	had	a	four-door,	2003	Volkswagen	Passat	registered	in	his	name	“that	

matche[d] the	description	 of	 the	Volkswagen	 seen	 at	 the	Cumberland	 Farms	

store	and	at	Tobey’s	Grocery	during	 the	burglary.” On	 July	22,	2015,	shortly

before	 the	 crimes	 at	 issue	 here,	 a	 Biddeford	 police	 officer	 had	 conducted	 a	

motor	 vehicle	 stop	 of	 Warner, who	 had	 been driving	 a	 green	 Volkswagen	

Passat.		At	that	time, Warner and	the	third suspect2 had	been on	probation	for	

burglary	and	theft, and	Shultz	had	been the	subject	of an	active	arrest	warrant	

for	failure	to	appear	and	had	been subject	to conditions	of	release.		In	addition,	

Warner	had prior	convictions	in	2004,	2005,	and	2011,	for	aggravated	criminal	

 2		The affidavit identified this	 third	suspect	as	someone	other	 than	Charles	York, but	evidence	

discovered	later	resulted	in	the	charges	being	brought	against	York.
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mischief,	 possession	 of	 burglary	 tools,	 burglary,	 unlawful	 trafficking	 in	

scheduled	drugs, and	possession	of	scheduled drugs.

[¶8]		The	investigating	trooper learned	Warner’s	cell phone	number	from	

Warner’s probation	 officer.	 	 On	 September	 9,	 2015,	 the	 Biddeford	 officer

conducted	 a	 second	 motor	 vehicle	 stop	 of	 the	 same vehicle, owned	 and	

operated	 by	Warner, at	which	 time	Warner	 gave	the	 officer the	 same	 phone	

number	that	Warner’s	probation	officer	had provided	to	the	trooper.

[¶9]		Based	 on	 the	above	 facts,	on	September	9,	2015,	pursuant	 to	 the	

Stored	Communications	Act,	18	U.S.C.S.	§	2703(a),	(b)(1)(A),	(c)(1)(A)	(LEXIS	

through	 Pub.	 L.	 No.	 116-39), and	 16	 M.R.S.	 §§	 642(1)	 and	 648	 (2015),3 in	

accordance	with	15	M.R.S.	 §	55	 (2015),4 a	 detective of the	Kennebec	County	

Sheriff’s	Office	applied for	a	warrant	to	obtain	and	search	records	from wireless	

provider AT&T	Mobility	that	were associated	with	Warner’s	cell phone	account

from	July	30, 2015,	to	September	9,	2015—including,	among	other	things,	voice	

mail,	 text,	 and	multimedia	messages; text	messaging	logs,	including	the	date	

and	 time	 of	 messages; text	 content; the	 telephone	 numbers	 associated	 with	

 3		Title	16 M.R.S.	§§	642(1)	and	648 have since	been	amended,	though	the	amendments	are	not	

relevant	in	 the	 present	 case.	 	 See	P.L. 2017,	 ch.	 144,	 §§	 4,	 5 (effective	 June	 8,	2017)	(codified	 at	

16 M.R.S.	§§	642(1), 648 (2018)).

4	 	Title	15 M.R.S.	 §	55	has	 since	 been	 amended,	 though	 the	 amendment	is	not	 relevant	in	 the	

present	case.		See	P.L. 2017,	ch.	144,	§	2 (effective	June	8,	2017)	(codified at 15	M.R.S.	§	55	(2018)).
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incoming	 and	 outgoing text	 messages	 and telephone	 calls;5 and	 “PING”	

information	 to	 assist	 in	 identifying	 the	 device’s	 location.	 	 A	 judge	 (Dow,	 J.)

issued	the	search	warrant.

[¶10]	 	On	 September	 14,	 2015,	the	 investigating	 Maine	 State	 Trooper

applied	for a warrant	to obtain	and search	records	from	Verizon	Wireless	that	

contained	the	 same	 types	 of	information	 associated with	 Shultz’s	 cell phone	

account from	July	1,	2015, to	September	14,	2015.		The affidavit	was	largely	

identical	to	the affidavit seeking	to	search	Warner’s	data,	supplemented	with

some	additional	facts,	most	of	which	were	based	on	evidence	obtained	through

the	search	of	Warner’s	account data. A	judge (Mills,	J.)	issued	the	warrant	as	

requested	by	the	State.

[¶11]		On	September	24,	2015,	Warner	was	charged	by	complaint	with	

receiving	stolen	property	(Class	B),	17-A	M.R.S.	§	359(1)(B)(1)(2018).		Warner	

was	then	indicted	on	a	total	of	thirty-three	crimes	allegedly	committed	across	

three	different	counties.6

 5		Although	some	of	the	listed	information,	such	as	 the	numbers	associated	with	incoming	and	

outgoing	 telephone	 calls,	 may	 have	 been	 obtainable without	 a	 warrant,	see	 Johnson	 v.	 Duxbury,	

No. 18-2098,	2019	U.S.	App.	LEXIS	22426,	at	*9-13	(1st	Cir.	July	29,	2019),	this	consideration	is	not

material	to	our	analysis,	and	we	do	not	discuss	the	issue	further.

6		Specifically,	on	December	11,	2015,	Warner	was	charged	by	indictment in	Cumberland	County	

with	five	counts	of	burglary	(Class	B),	17-A	M.R.S.	§	401(1)(B)(5)	(2018); six	counts	of	aggravated	

criminal	mischief	(Class	C),	17-A	M.R.S.	§	805(1)(A),	(2)(2018); three	counts	of	theft	by	unauthorized	
7

[¶12]		About	a	year	later,	in September 2016,	Warner,	Shultz, and	York

filed	motions to	suppress	certain	evidence,	including	all	evidence	obtained	as	a	

result of the	search	warrants	issued	on September	9,	2015,	 for	Warner’s	cell

phone	account	data	and on September	14,	2015,	for	Shultz’s	cell phone	account	

data, arguing	that	the	warrants	were	not	supported	by	probable	cause.		Warner,	

Shultz,	and	York also	requested	that, if	the	court	determined that	the affidavits

presented	 to	search	the account	data were supported	by	probable	cause, the	

court	conduct	a	Franks	v.	Delaware hearing	to	determine	whether	the	detective

or	the	trooper	deliberately or	with	reckless	disregard	for	the	truth	made	false	

statements	in	his affidavit.		438	U.S.	154,	171-72	(1978).

[¶13]	 On	 December	 14,	 2016,	 the	 Superior	 Court	 (Murphy,	 J.)	 held	 a	

nontestimonial	 hearing	 and,	 after	 determining	 that	 the	 defendants	 made	 a	

sufficient	preliminary	showing	to	justify a	hearing, held	a	three-day hearing	for	

 

taking	(Class	B),	17-A	M.R.S.	§	353(1)(B)(1)	(2018); and	one	count	of	theft	by	unauthorized	taking	

(Class	C),	17-A	M.R.S.	§	353(1)(B)(4)	(2018).

On	December	17,	2015,	Warner	was	charged by	indictment	in	Kennebec	County	with	two	counts	

of	 burglary	 (Class	C),	17-A	M.R.S.	 §	 401(1)(A)	 (2018); one	 count	 of	 theft	 by	 unauthorized	 taking	

(Class B),	17-A	M.R.S.	§	353(1)(B)(1);	one	count	of	theft	by	unauthorized	taking	(Class	C),	17-A	M.R.S.	

§ 353(1)(B)(4); one	count	of	aggravated	criminal	mischief	(Class	C),	17-A	M.R.S.	§	805(1)(A),	(2); and	

one	count	of	criminal	mischief	(Class	D),	17-A	M.R.S.	§	806(1)(A),	(2) (2018).

On	February	3,	2016,	Warner	was	charged	by	indictment in	Knox	County	with	two	counts	of	theft	

by	unauthorized	taking	(Class	B),	17-A	M.R.S.	§	353(1)(B)(1); two	counts	of	theft	by	unauthorized	

taking	 (Class	 C),	 17-A	 M.R.S.	 §	 353(1)(B)(4); four	 counts	 of	 burglary	 (Class	 B),	 17-A	 M.R.S.	

§ 401(1)(B)(5); and	four	counts	of	criminal	mischief	(Class	D),	17-A	M.R.S.	§	806(1)(A),	(2).
8

purposes	of	both	the Franks	issue	and	the	motions	to	suppress on	February	8,	

April	 28,	 and	 May	 19,	 2017.	 	 In	 an	 order	 dated	 March	 15,	 2018,	 the	 court	

rejected	all claims	for	relief	under	Franks	v.	Delaware,	finding	that	the	affiants	

had not	intentionally	or	recklessly	disregarded the	truth	in	their	affidavits.

[¶14]	 	 The	 court	 also	 ruled	 on	 the	 motions	 to	 suppress	 in	 the	

March 15, 2018,	 order.	 	 The	 court	 held	 that Warner	 had a	 reasonable	

expectation	of	privacy	in	his	cell phone	account data.		Although	the	State argued	

that	 Warner	 lacked	 standing	 to	 challenge	 the	 warrant	 issued	 for	 Shultz’s	

account data,	the	court	concluded	that	he	did	have	standing	to	challenge	that	

warrant because	information	gathered	 from	Warner’s	own	account	data was	

included	 in	 the	 affidavit	 supporting	 the application	 for	 a	 warrant	 to	 search

Shultz’s	account	data.

[¶15]	 	 The	 court	 determined that	 both	 warrants	 were	 defective	 and	

invalid	because	they	failed	to	articulate	the	nexus	between	the	crime	and	the	

place	to	be	searched—i.e.,	the	cell	phone	records—stating that	“there	was	not	

information	 sufficient	 for	 a	 finding	 of	 probable	 cause	 to	 believe	 that	

particularized	evidence	[of	a	crime]	could	be	found	on	Warner	or	Shultz’s	cell	

phones.” See State	v.	Gurney,	2012	ME	14,	¶	33,	36	A.3d	893.
9

[¶16]		The	State	filed	a	motion	to	clarify,	for	further	findings	of	fact	and	

conclusions	 of	 law,	 and	 for	 reconsideration	 of	 the	 decision	 to	 suppress	

evidence.		See	M.R.U.	Crim.	P.	41A(d).		In	clarifying	its	original	analysis,	the	court	

confirmed	its	holding	and	found	certain	other	facts	that	Warner	asserted	in	his	

response	to	the	State’s	motion	for	further	findings	of	facts.		It	also	clarified	that,	

because it	 found that the	 warrants	 were	 “facially	 deficient,” the	 good	 faith	

exception	to	the	exclusionary	rule	did not	apply.

[¶17]		With	the	written	approval	of	the	Attorney	General,	the	State	timely	

appealed.		15	M.R.S.	§	2115-A(1)	(2018);	M.R.	App.	P.	2B(b)(1),	21(b).

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II.		DISCUSSION

[¶18]	 	 The	 State	 argues	 that	 the	 court	 erred	 by	 failing	 to	 show	

appropriate	 deference	 to	 the judge	 who	 issued	 the	 search	 warrant	 dated	

September	9,	2015,	for	Warner’s	cell phone	account data.		When	reviewed	with	

proper	deference,	the	State	argues,	the affidavit	provides a	substantial	basis	for	

the	 warrant	 judge’s	 findings	 that	 there	 was	 probable	 cause	 to	 believe	 that	

Warner’s cell phone	account data	contained	evidence	of	a	crime.

 7		Although interlocutory, “[a]n	appeal	may	be	taken	by	the	State	in	criminal	cases	on	questions	of	

law	.	.	.	[f]rom	an	order	of	the	court	prior	to	trial	which	suppresses	any	evidence,	including,	but	not	

limited	to,	physical	or	identification	evidence	or	evidence	of	a	confession	or	admission,” as	long	as	

the	Attorney	General	provides	written	approval. 15	M.R.S.	§	2115-A(1),	(5)(2018).		Warner does	not	

argue that	this	appeal	is	either	unripe	for	appellate	review	or	untimely.
10

[¶19]	 	 The	 Fourth	 Amendment	 to	 the	 United	 States	 Constitution	 and	

article	 1,	 section	 5	 of	 the	 Maine	 Constitution	 require	 a	 showing	 of	 probable	

cause,	 as	 supported	 by	 oath	 or	 affirmation,	 before	 a	 search	warrant	may	 be	

issued.		Gurney,	2012	ME	14,	¶	31,	36	A.3d	893;	State	v.	Reese, 2010	ME	30,	¶ 11,	

991	A.2d	806.		“[T]he	term	‘probable	cause,’	according	to	its	usual	acceptation,	

means	less	than	evidence	which	would	justify	condemnation	.	.	.	.	 It	imports	a	

seizure	made	under	circumstances	which	warrant	suspicion.”		Illinois	v.	Gates,	

462	 U.S.	 213,	 235 (1983) (quotation marks	 omitted).	 	 Probable	 cause	 is	

satisfied	 when,	 based	 on	 the	 totality	 of	 the	 circumstances,	 the	 warrant	

application	“set[s]	forth	some	nexus	between	the	evidence	to	be	seized	and	the	

locations to	be	searched.”		Gurney,	2012	ME	14,	¶ 33,	36	A.3d	893 (quotation	

marks	 omitted).	 	 “The nexus	 need	 not,	 and	 often	 will	 not,	 rest	 on	 direct	

observation,	but	rather	can	be	inferred from	the	type	of	crime,	the	nature	of	the	

items	 sought,	 the	 extent	 of	 an	 opportunity	 for	 concealment	 and	 normal	

inferences	as	 to	where	a	criminal	would	hide	[evidence	 of	a	crime].”		Nunez,	

2016	 ME	 185,	 ¶	 25,	 153	 A.3d	 84 (alteration	 in	 original)	(emphasis	 added)

(quotation	marks	omitted).

[¶20]		The	“totality	of	the	circumstances”	test	applicable	when	evaluating	

whether	 there	 is	 probable	 cause	 for	 a	 search	 “requires	 a	 practical,	
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common-sense	decision	whether,	given	all	 the	circumstances	set	 forth	in	 the	

affidavit	.	.	.	including	the	veracity	and	basis	of	knowledge	of	persons	supplying	

hearsay	information,	there	is	a	fair	probability	that	contraband	or	evidence	of	

a	 crime	 will	 be	 found	 in	 a	 particular	 place.”	 	 Gurney,	 2012	 ME	 14,	 ¶	 32,	

36 A.3d 893 (quotation	marks	omitted).		The	test, as set	forth	by	the	Supreme	

Court of	 the	 United	 States in	Illinois	 v.	Gates, requires	 a	 jurist	 considering	 a	

warrant	affidavit	to “deal with	probabilities.” 462	U.S.	at 231 (quotation	marks	

omitted).	 Assessing	 probabilities is “not	 technical”	 but	 rather	 calls for	

consideration	 of the “factual	and	practical	considerations	 of	everyday	life	 on	

which	 reasonable	 and	 prudent	 [people],	 not	 legal	 technicians, act.” Id.

(quotation	 marks	 omitted);	 see	 State	 v.	 Mariner,	 2017	 ME	 102,	 ¶	 13,	

162 A.3d 241.

[¶21]		When	the	State	appeals from the	suppression	of	evidence	seized	

pursuant	to	a	search	warrant,	we	review	directly	the	finding	of	probable	cause	

made	by	the	issuing	judge or	magistrate.		State	v.	Simmons,	2016	ME	103,	¶ 11,	

143	A.3d	819. The	Supreme	Court	of	the	United	States	has	established that	

after-the-fact	 scrutiny	 by	 courts	 of	 the	 sufficiency	 of	 an	 affidavit	

should	 not	 take	 the	 form	 of	 de	 novo	 review.	 	 A	 magistrate’s	

determination	of	probable	cause	should	be	paid	great	deference	by	

reviewing	 courts.	 	 A	 grudging	 or	 negative	 attitude	 by	 reviewing	

courts	 towards	 warrants	 is	 inconsistent	 with	 the	 Fourth	

Amendment’s	strong	preference	for	searches	conducted	pursuant	
12

to	 a	 warrant;	 courts	 should	 not	 invalidate	 warrant[s] by	

interpreting	 affidavit[s] in	 a	 hypertechnical,	 rather	 than	 a	

commonsense,	manner.

Gates,	 462	 U.S.	 at	 236 (citations	 omitted)	 (quotation	 marks	 omitted).		

Accordingly,	our	review of	probable	cause is	“limited	to	determining	whether	

the	issuing	magistrate	had	a	‘substantial	basis’	to	issue	the	warrant,	drawing	all	

reasonable	inferences	in	favor	of	probable cause.”	 Nunez,	2016	ME	185,	¶	30,	

153	A.3d	84. This	review	is	confined	exclusively	to	the	information	within	the	

four	corners	of	the	affidavit,	and	it	is	not	a	de	novo	review. Id. ¶¶ 18,	20,	30.

[¶22]		In	this	case,	the	detective	submitted	an	affidavit	in	support	of	his	

request	for	a	search	warrant	for	Warner’s cell phone account data that	did	not	

explicitly	articulate the direct	link	between	Warner’s	cell phone	account data

and	a	crime—in	other	words,	the	detective	did	not	explain	in	the	affidavit	why	

the	 cell phone	 data	 had	 evidentiary	 value.	 	 There	 is	 essentially	 no	 dispute,	

however, that	the	affidavit	provided	probable	cause	to	believe	that	(1) Warner	

and Schultz	had	engaged	in	a	burglary with	another	person; (2) Warner	and	

Schultz had	 coordinated	 their	 movements	 and	 activities	 in	 committing	 the	

burglary;	(3) Warner	had	an	identified	cell phone	number; and	(4) Warner	had	

multiple	prior	convictions,	several	of	which	related	to	burglaries.
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[¶23]	 	What	 the	 affidavit	lacked	was	 an	 explicit statement	 that,	 in	 the	

experience	of	law	enforcement,	cell phones	are	often	used	to arrange meetings	

or	 to	 coordinate	 or	 plan a	 multi-person	 burglary, and	 that	 the	 cell phone	

records	may	therefore	contain	evidence	 of	 that	contact	and	 of	 the	suspected	

burglars’	whereabouts	when	the	crimes occurred.

[¶24]	 	 Accordingly,	 our	 role	 on	 appeal	 is	 to	 determine	 whether	 that	

connection	between	the	cell phones	and	the	suspected	criminal	conduct	could	

reasonably	be	inferred	by	the	judge	issuing	the	search	warrant.		See	id. ¶	30.		In	

a	 world	 where	 cell phones	 are	 in	 the	 possession	 of	 the	 vast	 majority	 of	

individuals,8 where	cell phone	information	can	sometimes	be	obtained	without	

a	 search	 warrant,

9 and	 where	 Maine	 judges	 routinely	 hear	 evidence	 that	

individuals	have	planned	or	coordinated criminal	activities	through	the	use	of	

cell phones,

10 the	inference	made	by	the	judge	here	was	entirely	reasonable.		In	

short,	the	affidavit	set	forth facts	that allowed the	issuing	judge	to	infer	from	

 8		See Riley	v.	California,	573	U.S.	373,	395	(2014) (“[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

.	.	.	.”).

9		See	18	U.S.C.S.	§	2703	(LEXIS	through	Pub.	L.	No.	116-39) (authorizing	certain	disclosures	of	

wire	 or	 electronic	 communications	 information	 without	 a	 warrant);	 see	 also	 State	 v.	 Pagnani,	

2018 ME	129,	¶	19,	193	A.3d 823 (holding	that	exceptions	to	the	warrant	requirement	apply	to	cell

phone	information).

10		See,	e.g.,	State	v.	Journet,	2018	ME	114,	¶	4,	191	A.3d	1181; State	v.	Lopez,	2018	ME	59,	¶	8,	

184 A.3d	880;	State	v.	Lemay,	2012	ME	86,	¶	7,	46	A.3d	1113.
14

the	totality	of	the	circumstances	that	Warner’s	cell phone	account data	would	

produce	evidence	of	Warner’s	involvement	in	the	Tobey’s	Grocery	burglary.

[¶25]		The	affidavit	was	replete	with	detailed facts that linked	Warner	to	

the	 burglary	 at	 Tobey’s	 Grocery.	 	 Warner	 was	 identified	 as	 one	 of	 the	

individuals	 at	 Cumberland	 Farms	 where	 evidence	 from	 the	 crime	 was	

discarded, and	 Warner	 had	 a	 Volkswagen	 Passat	 that	 matched	 both	 the	

description	of	the	car	at	the	burglary	and	the description	of	the car	observed in	

the	 video	 surveillance	 from	 Cumberland	 Farms.	 	 Warner	 also	 had	 a	 long	

criminal	 history,	 including	 a	 history	 of	 committing	 burglaries.	 	 See	 State	 v.	

Arbour,	2016	ME	126,	¶	15	n.11,	146	A.3d	1106 (“‘An	affiant’s	knowledge	of	the	

target’s	 prior	 criminal	 activity	 or	 record	 clearly	 is	 material	 to	 the	 probable	

cause	determination.’”	(quoting	United	States	v.	Taylor, 985	F.2d	3,	6	(1st	Cir.	

1993))	(citing State	v.	Gallant,	531	A.2d	1282,	1284	(Me.	1987))). Warner was	

identified	as	one	of	three individuals	at	Cumberland	Farms where	evidence	of	

the	crime	was	discovered, not	long	after	at	least	two	individuals	burglarized	

Tobey’s	Grocery.

[¶26]		Because	the	crime	was	alleged	to	have	been	committed	by	more	

than	 one	 individual, the	 issuing	 judge	 could	 reasonably	 infer	 that	 the	

individuals	conferred about	 the	crime and	 that	 their cell phone account data
15

would	contain	evidence	of	the	crime.		Cf.	Riley	v.	California,	573	U.S.	373,	385	

(2014) (observing	that	cell phones	are	“such	a	pervasive	and	insistent	part	of	

daily	life	 that	 the	 proverbial	 visitor	 from	Mars	might	 conclude	 they	were	 an	

important	 feature	of	human	anatomy”).	 From	 the	totality	of	 these	facts—the	

multiple	individuals	seen	together	near	the	hours	of	the	crime,	all	with	criminal	

histories,	with	one	of	them	owning	a	vehicle	matching	both	the	description	of	

the	car	at	 the	scene	of	 the	crime and	the	description	of	 the car	observed	at	a	

location	where	 discarded	 evidence	 of	 the	 crime	was	 found—the	judge	 could	

reasonably	 determine	that	Warner’s	 cell phone	 account	 data would	 produce	

evidence—for	 instance,	 text	 messages,	 voicemail	 messages,	 call	 history,	 and	

location	 information—that	 could	 demonstrate his	 involvement	 in	 the	 crime.

Drawing	all	reasonable	inferences	in	favor	of	probable cause, we	conclude	that	

the	issuing	judge had	a	substantial	basis	to	issue	the	warrant.

[¶27]		In	reaching	this	conclusion,	we	emphasize	its	limited	scope.		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	has	explained,	a	cell	phone	

provides	a	wide-open	window	into	a	person’s	life.		Id. at	386,	395.		“Cell	phones
16

.	 .	 .	 place	 vast	 quantities	 of	 personal	 information	 literally	 in	 the	 hands	 of	

individuals.”		Id. at	386.	 “[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.”		Id. at	395.

[¶28]	 	 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.		This	case	therefore	does	not	call	for	us	to	consider	

whether the	issuance	of a	warrant	for	the	search	of a	suspect’s	cell phone	itself	

would	be	proper	if	it	were based	merely	 on	information	 that	more	 than	 one	

person	 was	 involved	 in	 committing	 the	 crime,	 the	 suspect	 was	 one	 of	 those	

people,	 and	 the	 suspect	 owned	 a	 cell phone.	 	 See	 Commonwealth	 v.	 White,	

59 N.E.3d	 369,	 371-72,	 376-77 (Mass.	 2016) (concluding	 that	 those	

circumstances	were	insufficient	to	support	a determination of	probable cause);	

see	 also	United	 States	 v.	 Ramirez,	 180	 F. Supp.	 3d	 491,	 495	 (W.D. Ky.	 2016)

(same);	 Stevenson	 v.	 State,	 168	 A.3d	 967,	 981-86	 (Md.	 2017) (Adkins,	 J.,	

concurring) (same).		And	we	express	no	view	on	that	issue	today.
17

[¶29]	 	 The	 court	 also	 suppressed	 evidence	 obtained	 through the	

September	14,	2015,	search	warrant	to	search Shultz’s	cell phone	account	data.		

Ordinarily,	 an	 individual	 lacks	 standing	 to	 challenge	 the	 search	 of	 another	

person’s property unless	the	individual	has	a	reasonable	expectation	of	privacy	

in	 that	property.		See State	v.	Lovett,	2015	ME	7,	¶	8,	109	A.3d	1135; State	v.	

Filion,	 2009	 ME	 23,	 ¶	 11,	 966	 A.2d	 405;	 State	 v.	 Maloney, 1998	 ME	 56,	 ¶ 6,	

708 A.2d	277.		Warner	argues,	however,	that	he	had standing	to	challenge	the

admissibility	 of	 evidence	 discovered	 in	 the	 Shultz search	 because it	 was	

through	 an	 illegal	 search	 of	 his	 own	 account	 data	 that	 law	 enforcement	

obtained	 some	 of	 the information	 that	 it	 provided	 in	 the	 affidavit	 seeking	

Shultz’s	 data. See	 State	 v.	Johndro,	 2013	ME	 106,	 ¶	 21,	 82	 A.3d	 820 (“[A]ny

evidence	obtained	through	the	exploitation	of	police	illegality	must	be	excluded	

as	fruit	of	the	poisonous	tree.”).

[¶30]		Based	on	our	conclusion	that	there	was	no	illegality	in	the	search	

of	 Warner’s	 data,	 and given	 that	 Warner	 has	 not	 otherwise	 asserted	 any	

reasonable	 expectation	 of	 privacy	in	 Shultz’s	 data,	we	 conclude	 that	Warner

lacks	 standing	 to	challenge	 the	 search	 of	Shultz’s	data.	 Accordingly,	we	also	

vacate	 the	court’s	 suppression	 of	 the evidence obtained	 through	 that	 search.

We	need	not,	and	do	not, reach any	of the	State’s	remaining	arguments.
18

The	entry	is:

Order	 suppressing evidence	 obtained	 through	

the	September	9,	2015, and	September	14,	2015,	

warrants vacated.	 Remanded	 for	 further	

proceedings.

Maeghan	 Maloney,	 District	 Attorney,	 Prosecutorial	 District	 4,	 Augusta;

Jonathan	Liberman,	District	Attorney,	Prosecutorial	District	6, Rockland; and	

Stephanie	Anderson,	District	Attorney,	and	Carlos	Diaz,	Asst.	Dist.	Atty.(orally),	

Prosecutorial	District	2,	Portland,	for	appellant	State	of	Maine

Christopher	R.	Guillory,	Esq. (orally),	Saco,	for	appellee	Michael	J.	Warner II

Cumberland	County	Unified	Criminal	Docket	docket	number	CR-2015-5750

Kennebec	County	Unified	Criminal	Docket	docket	number	CR-2015-2508

Knox	County	Unified	Criminal	Docket	docket	number	CR-2016-145

FOR	CLERK	REFERENCE	ONLY