MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019	ME	98

Docket: Fra-17-12

Argued: October	12,	2017

Reargued: October	23,	2018

Decided: June	18,	2019

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

STATE	OF	MAINE

v.

KEVIN	M.	O’DONNELL

HUMPHREY,	J.

[¶1]		Kevin	M.	O’Donnell	appeals	from	a	judgment	of	conviction	entered	

in	 the	 Unified	 Criminal	 Docket (Franklin	 County,	 Mullen,	 J.)	 following	 his	

conditional	 guilty	 pleas	 to burglary (Class	 B),	 17-A	 M.R.S.	 §	 401(1)(B)(4)	

(2018);	 stealing	 drugs (Class	 D),	 17-A	 M.R.S.	 §	 1109(1),	(2)(B)	 (2018);	 and	

violation	 of	 a	 condition	 of	 release (Class	 E),	 15	 M.R.S.	 §	 1092(1)(A)	 (2018),	

entered	pursuant	to	M.R.U.	Crim. P.	11(a)(2)	following	the denial	of	his	motion	

to	suppress (Stokes,	J.).		

[¶2]		O’Donnell	argues	that	the	court	erred	when	it	denied	his	motion	to	

suppress all	evidence	obtained	as	a	result	of	the	State’s	acquisition	of	his cell	

phone’s location	information.		The	court	concluded	that	(1)	the	acquisition	of	

O’Donnell’s	 cellular	 phone	 location	 information	 did	 not	 constitute	 a	 search	
2

under	 the	 Fourth	Amendment	to the	United	States	Constitution	and	was	 not	

excluded	from	evidence	by	Maine’s Electronic	Device	Location	Information	Act

(EDLIA),	 16	M.R.S.	§§	 647 to	650-B	 (2018);	 (2) the	 entry	into	 and	 search	 of	

O’Donnell’s	 residence	 were	 lawful;	 and	 (3)	 the fruit-of-the-poisonous-tree

doctrine	was	inapplicable.		We	affirm	the	judgment.

I.		BACKGROUND

[¶3]	 	In	its	 order	 denying	 the	motion	 to	 suppress,	 the	 court	 found	 the	

following	facts,	which	are	supported	by	the	record	and viewed in	the	light	most	

favorable	 to	 the	motion	 court’s	order.	 See	 State	 v.	 Gerry,	 2016	ME	 163, ¶ 2,	

150 A.3d	810.

[¶4]		On	April	4,	2015,	a	sergeant	from	the	Rangeley	Police	Department	

received	a	call	reporting	a	burglary	at	the	caller’s	apartment	in	Rangeley.		The	

caller	said	that	two	flat-screen	televisions,	a	PlayStation 3,	medical	marijuana,	

some	 ammunition,	 and	 several	 firearms—including	 a	 loaded	 handgun—had	

been	taken	from	his	residence.		

[¶5]		The	caller	explained	that	a	friend	had	alerted	him	to	the	burglary	

and	stated	that	O’Donnell	and	Danielle	Nelson	were	the	perpetrators.		The	caller	

told	the	sergeant	that	he	had	ended	a	relationship	with	Nelson	on	April	3,	2015,	

and	drove	Nelson,	her	daughter,	and	their	belongings	to	O’Donnell’s	residence	
3

in	 Lisbon.	 	 The	 caller	 and	 Nelson	 planned	 to	 meet	 at	 the	 Auburn	 Mall	 on	

April 4, 2015—the	day	 of	 the	burglary—so	 that	the	caller	could	 return	 some	

paperwork	to	Nelson.		The	caller	went	to	the	mall,	but	Nelson	never	arrived.		

[¶6]	 	 The	 sergeant	 contacted	 the	 friend	 who	 had informed the	 caller	

about the	burglary.		The	friend	corroborated	the	caller’s	account	and	explained	

that	 he	 had	 heard	 about	 the	 burglary	 from	 an	 individual	 in	 Florida.	 	 The	

sergeant	then	spoke	with	that	individual,	who	stated	that	O’Donnell	had	been	

in	Florida	with	the	individual	for	the	past	three	weeks	and	that	O’Donnell	said	

he	planned	 to	move	 to	Florida	with	Nelson and	finance the	move	by	stealing	

guns	and	money	from	the	caller.		

[¶7]		The	sergeant then contacted	the	Franklin	County	and	Androscoggin	

County	dispatch	centers.		He	learned	that	Nelson	was	currently	on	probation	

and	O’Donnell	was	the	subject	of	an	outstanding	arrest	warrant	for	charges	of	

eluding	an	officer	and	driving	to	endanger.		

[¶8]	 	On	 April	 5,	 2015,	 the	 sergeant	 asked	 an	 officer	 from	 the	 Lisbon	

Police	Department,	who	was	 familiar	with	O’Donnell	 and	 his	 residence	 from	

previous	encounters,	to	check	O’Donnell’s	home	in	Lisbon.		The	Lisbon	officer	

went	 to	 O’Donnell’s	 residence	 and,	 although	 he	 did	 not	 make	 contact	 with	
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anyone,	he	observed	that	the	interior	lights	were	on	and	he	saw	a	suitcase	in	

the	living	room.		

[¶9]		On	the	same	day,	using	phone	numbers	provided	by	the	sergeant,	

the	Androscoggin	County	dispatcher	prepared	and	submitted an	“emergency	

disclosure	form”	to	Verizon	Wireless	to	“ping”	the	cell	phones	of	O’Donnell	and	

Nelson	to	assist	law	enforcement	in	locating	them.

1 The	sergeant	testified	that	

he	wanted	to	locate	O’Donnell	and	Nelson	quickly	because	he	was	concerned	

about	 officer	 safety,	 and	 because O’Donnell	 had	 a	 history	 of	 eluding	 law	

enforcement	and	had	expressed	an	intention	to	leave	the	state.		

[¶10]	 	 The	 sergeant	 received	 the	 information from	 Verizon	 for	 both	

numbers.		The	data revealed	that	at	the	moment	the	cell	phones	were	pinged,	

they	were	located	in an	area	of	Lewiston	near	two	motels	and in	close	proximity	

to	one	another.		The	sergeant	relayed	 the information	 to	 the	Lewiston	Police	

Department.		

 1		The	parties	dispute	whether	the	request	to	Verizon	Wireless	included	a	request	for	Nelson’s	cell	

phone	 location	 information	 as	 well	 as	 O’Donnell’s.	 	 The	 sergeant	 testified	 that	 he	 provided	 the	

dispatcher	with	both	phone	numbers	and	that	Verizon	provided	location	information	for	both	cell	

phones;	however,	only	O’Donnell’s	number	appears	on	the	emergency	situation	disclosure	form	that	

was	admitted	in	evidence	at	the	hearing.		The	court	found,	however,	that	the	officers	received	cell	

phone	 location	 information	 for	 both	 O’Donnell	 and	 Nelson,	 supporting	 an	 inferred	 finding	 that

requests	were	made	for	location	information	for	both	of	their	cell	phones.		
5

[¶11]		By	this	time,	the	Lisbon	officer	had	left	O’Donnell’s	residence	and	

was	 directed	 by	 a	 dispatcher	 to	 search	 the	 area	 in	 Lewiston	 identified	 by	

Verizon.		In	 Lewiston,	 the	 Lisbon	officer	learned	 that	O’Donnell	had	checked	

into	 a	 particular	 motel.	 	 After	 obtaining	 a	 key	 to	 O’Donnell’s	 room	 from	 the	

manager	of	the	motel,	the	Lisbon	officer	and	backup	officers	forcibly	entered	

the	room, secured	O’Donnell	and	Nelson, and	placed	them	under	arrest.		

[¶12]		As	officers	escorted	Nelson	out	of	the	room,	O’Donnell	ordered	her	

not	to	“tell	[the	police]	shit.”		Nonetheless,	Nelson	spoke	with	the	officers	and	

accompanied	 them	 to	the residence	 in	 Lisbon	 where	 she	 and	 O’Donnell	 had	

been	staying.2		Nelson	gave	the	officers	permission	to	enter	the	residence	and	

helped	 them	 locate	 a	 PlayStation	 and	 two	 flat	 screen	 televisions	 inside	 the	

residence.		

[¶13]		In	May	2015,	a grand	jury	indicted	O’Donnell	on	charges	of	theft	

by	unauthorized	taking (Count 1),	17-A	M.R.S.	§	353(1)(B)(2) (2018);	burglary		

(Count	 2),	 17-A M.R.S. § 401(1)(B)(4);	 stealing	 drugs (Count	 3),	 17-A	

M.R.S. § 1109(1),	 (2)(B); and	 violation	 of	 a	 condition	 of	 release (Count	 4),	

15 M.R.S. § 1092(1)(A).

 2		The	Lisbon	officer	testified	that	he	had	known	Nelson	for	several	years	and	had	prior	contact	

with	her	at	this	residence.		
6

[¶14]		In	July	2015,	O’Donnell	filed	an	amended	motion	to	suppress	the	

cell	 phone	 location	 information	 provided	 by	 Verizon and	 “any	 evidence”

obtained	as	a	result	of	that	information.		After	an	evidentiary	hearing,	the	court	

(Franklin	County,	Stokes,	J.)	denied	the	motion.		

[¶15]		In	December	2016,	O’Donnell	entered	conditional	guilty	pleas on	

Counts	 2,	 3,	 and	 4 pursuant	 to	 M.R.U.	 Crim. P.	 11(a)(2).

3	 	 O’Donnell	 was	

sentenced	to	four	years’	imprisonment with all	but	four	months	suspended and

two	years	of	probation	for	Count	2,	thirty	days	for	Count	3,	and	thirty	days	for	

Count	4,	all	to	be	served	concurrently.		O’Donnell	timely	appealed.		M.R.	App.	P.	

2B(b).		

[¶16]		After	we	heard	oral	arguments	in	this	case	in	October	2017,	 the	

United	States	Supreme	Court	heard	oral	arguments in a	case	involving	“cell-site	

location	 information	 (CSLI)”4 and the	 issue	 of	 “whether	 the	 Government	

 3		The	State	dismissed	Count	1,	theft	by	unauthorized	taking,	17-A	M.R.S.	§	353(1)(B)(2) (2018).	

4		The	Supreme	Court	described	CSLI	as	follows:

Cell	phones	perform	their	.	.	.	functions	by	connecting	to	a	set	of	radio	antennas	called	

cell	sites.	.	.	.

Cell	 phones	 continuously	 scan	 their	 environment	 looking	 for	 the	 best	 signal,	

which	generally	comes	from	the	closest	cell	site.	.	.	.	Each	time	the	phone	connects	to	

a	cell	site,	it	generates	a	time-stamped	record	known	as	cell-site	location	information	

(CSLI).	.	.	.

Wireless	carriers	collect	and	store	CSLI	for	their	own	business	purposes	.	.	.	.
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conducts	a	search	under	the	Fourth	Amendment	when	it	accesses	historical	cell	

phone	 records	 that	 provide	 a	 comprehensive	 chronicle	 of	 the	 user’s	 past	

movements.”	 	 Carpenter v.	 United	 States,	 585	 U.S.	---,	 138	 S.	 Ct.	 2206,	 2211	

(2018).		We	stayed O’Donnell’s	appeal pending	the	Supreme	Court’s	decision.		

Carpenter was	decided	on	June	22,	2018.		Id. at	2206.5		We	called	for	additional	

briefing	and	reargument	in	light	of	the	Supreme	Court’s	decision,	and	invited	

amicus	briefs.		O’Donnell’s	case was	reargued	on October	23,	2018.		

II.		DISCUSSION

[¶17]		On	appeal,	O’Donnell	challenges	the	court’s	denial	of	his	motion	to	

suppress,	arguing	that	the	acquisition	of	his CSLI was	a	search	under	the	Fourth	

Amendment	and	a	violation	of	Maine’s	Electronic	Device	Location	Information	

Act,	16	M.R.S.	§§ 647 to	650-B.		“When an appellant challenges a court’s order

 

Carpenter	v.	United	States, 585	U.S.	---,	138	S.	Ct.	2206,	2211–12	(2018) (quotation	marks	omitted).		

5 In	Carpenter,	law	enforcement	had	investigated	a	string	 of	armed	 robberies	 of	stores	across	

multiple	states	and	acquired,	without	a	warrant, the	historical	CSLI of	one	of	the	suspects	in	order	to	

corroborate	his	proximity	to	the	stores	at	the	times	the	robberies	occurred.		See	id. at	2212-13.		This	

location	information	“clinched	the	case”	because	it	put	Carpenter	near	the	stores	at	the	times	they	

were	robbed.	 Id.	at	2213.

Carpenter addressed	whether,	for	Fourth	Amendment	purposes,	the	warrantless	acquisition	of	

“historical”	CSLI	was	constitutional	under	the	third-party-doctrine	exception	to	the	exclusionary	rule	

because	Carpenter	voluntarily	conveyed	his	phone’s	location	to	his	cellular	carrier, thereby	waiving

any	 expectation	 of	privacy	in	 the	 CSLI	 his	 phone	generated.	 	Id.	 at	2219-20.	 	The	 Supreme	 Court	

declined	to	extend	the	third-party	doctrine	to	historical	CSLI because,	unlike	other	forms	of	thirdparty	 disclosure,	 the	 automatic	 nature	 of	its	generation	and	 the	 sheer	 volume	 of	 data	 that	it	 can	

provide enable	the	government	to	compile	an	“exhaustive	chronicle”	of	a	phone	user’s	location	that	

is	“in	no	meaningful	sense”	voluntarily	disclosed.		Id.	at	2219-20.
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on a motion to suppress, we review the factual findings of the motion court for

clear error and the application of those facts to constitutional protections . . .

de novo.”		State v. Blier, 2017 ME 103, ¶ 7, 162 A.3d 829 (alteration in original)

(quotation marks omitted).

A. The	Fourth	Amendment

[¶18]		O’Donnell	contends	that	the	acquisition	of	his	CSLI was	a	search	

conducted	without	a	warrant	and	not	allowed	by	any	recognized	exception	to	

the	 warrant	 requirement	 and	 was,	 therefore,	 a	 violation	 of	 his	 Fourth	

Amendment	rights,	and	that	Carpenter supports	his	assertion.		He	argues	that	

because	 the	 acquisition	 of	 his	 phone’s location	 information	 was	 illegal,	 the	

motion	court	should	have	suppressed all	of	the	evidence	seized	from	the	motel	

room	 where	 he	 was	 arrested	 and	 any	 evidence	 derived	 from	 that	 entry—

including	evidence	seized	in	the	subsequent	search	of	his Lisbon	residence—as	

inadmissible	fruit	of	the	poisonous	tree.		See State	v.	Thibodeau,	2000	ME	52,	

¶ 6,	747	A.2d	596.		

[¶19]		As	noted	above,	law	enforcement	agents	had	substantial	reason	to	

believe	O’Donnell	and	Nelson	were	attempting	to	leave	the	state	together and	

also	 sought	 and	 obtained	 the	 CSLI	 of	 Nelson’s phone in	 an	 effort	 to	 locate	

O’Donnell.	 Because	Nelson	has	not	challenged	the	State’s	search	of	her	phone’s	
9

location	information,	which	led	 to	 the	same	evidence	 that	O’Donnell	seeks	 to	

suppress,	 we	 begin	 our	 analysis	 with	 the	 foundational	 question	 of	 whether	

O’Donnell	has	standing	to	seek	the	exclusion	of the	evidence	that	was	acquired	

by	way	of	Nelson’s	CSLI.		If	O’Donnell does	not	have	standing to	challenge	the	

acquisition	of	Nelson’s CSLI,	then the	lawfulness	of	the	acquisition	of	his CSLI	

matters	little to	the	outcome	of	his	efforts	to	suppress	evidence derived	from	

that	information.

[¶20]	 	 Whether	 a	 defendant	 has	 standing	 to	 challenge	 a	 search	 is	

“significantly	affected	by	the	unique	context”	of	his	claim.		State	v.	Lovett,	2015	

ME	7,	¶	8,	109	A.3d	1135 (quotation	marks	omitted).		The	defendant	has	the	

burden	of	showing	that	he	has	standing	to	challenge	a	search,	State	v.	Maloney,	

1998	ME	56,	¶	6,	708	A.2d	277,	meaning	 that	he	“must	demonstrate	 that	his	

own reasonable	expectation	of	privacy	was	violated	by	the	action	of	the	State.”		

Lovett,	2015	ME	7,	¶	8,	109	A.3d	1135 (quotation	marks	omitted);see	also Rakas	

v.	Illinois,	439	U.S.	128,	148	(1978).		Assuming without	deciding	that	acquiring	

an	individual’s	location	by	way	of	CSLI for	any	duration—whether	by	a	single	

ping	 or	 over	 an	 extended	 period	 of	 time—constitutes	 a	 search,

6 it	 is	

 6		In	Carpenter,	“[t]he	parties	suggest[ed] .	.	.	that	the	acquisition	of	CSLI	becomes	a	search	only	if	

it	extends	beyond	a	limited	period”	and	 the	Government	argued	 that	 “the	seven	days	of	CSLI	 [it]	

requested	from	Sprint [w]as	the	pertinent	period.”		Carpenter,	138	S.	Ct.	at	2217	n.3. However,	the	
10

well-established	that	Fourth	Amendment	rights	cannot	be	asserted	vicariously.	

Rakas,	439	U.S.	at	133-34; State	v.	O’Rourke,	2001	ME	163,	¶ 21	n.1,	792	A.2d	

262.		In	other	words,	a	defendant	cannot	assert	a	Fourth	Amendment	violation	

when	the	evidence	is	derived	from	a	search	of	property in	which	he	does	not	

have	a	constitutionally	sufficient	expectation	of	privacy.		See	Lovett,	2015	ME	7,	

¶	8,	109	A.3d	1135.		

[¶21]	 	 Courts	 have	 consistently	 held	 that	 defendants have standing	 to	

challenge	 a	 search	 of	 cell	 phones in	 which	 they	 have	 some	 ownership	 or	

possessory	interest, but do	not	have	 standing	 to	challenge	 the	acquisition	 of	

information	showing	a	phone’s	location	when	 the	defendant	has	no	property	

interest	or	expectation	of	privacy	in the particular	device subject	to	the	search.		

Compare United	States	v.	Woods,	336	F.	Supp. 3d	817,	826-27 (E.D.	Mich. 2018)	

(holding	that	a	defendant	has	standing	to	challenge	the	admissibility	of	his	own	

CSLI	 records), and Commonwealth	 v.	 Fredericq,	 97	 N.E.3d	 367,	 375	 (Mass.	

App. Ct.	2018)	(concluding	that the registered	owner	of	a	phone	has	standing	

regardless	of	its	use	by	others), with United	States	v.	Oakes,	320	F.	Supp.	3d	956,	

 

Court	determined	that	it	“need	not	decide	whether	there	is	a	limited	period	for	which	the	Government	

may	obtain	an	individual’s	historical	CSLI	free	from	Fourth	Amendment	scrutiny,	and	if	so,	how	long	

that	period	might	be.	 It	is	sufficient	for	our	purposes	today	to	hold	that	accessing	seven	days	of	CSLI	

constitutes	a	Fourth	Amendment	search.”	 Id.		
11

961	(M.D.	Tenn.	2018)	(“Carpenter has	not	changed	that,	before	[a]	Defendant	

can	assert	a	Fourth	Amendment	violation,	he	has	to	be	able	to	assert	a	personal	

connection	to	the . . . object	in	which	he	claims	a	privacy	right.”);	see	also State	

v.	Sexton,	2017	ME	65,	¶ 34,	159	A.3d	335 (holding	that	a	defendant	does	not	

have	standing	when	the	phone	at	issue	belongs	to	a	nonparty); Commonwealth	

v.	Estabrook,	38	N.E.3d	231,	237	n.9	(Mass.	2015)	(noting	that	a	defendant	has	

no	standing	to	challenge law	enforcement’s	acquisition	of the	CSLI	of	a	person	

who	is	not	a	party	to	the	appeal when	there	is	no	evidence that	the defendant	

used	that	person’s phone).		

[¶22]		In	State	v.	Sexton,	for	example,	law	enforcement	agents	located	a	

defendant	by	using	his	girlfriend’s	cell	phone	location	information.7		2017	ME	

65,	¶	34,	159	A.3d	335.		We	held	that the	defendant	lacked	standing	to	challenge	

the	acquisition	of	this	information	because	he	had	no	expectation	of	privacy	in	

her	phone	or	her	phone’s	records.	 Id.;	see	also Lovett,	2015	ME	7,	¶ 8,	109	A.3d	

1135.		

 7	 	 We	 acknowledge	 that	 Sexton	 referred	 generally	 to	 “cell	 phone	 location	 information,”	 not	

distinguishing	between	various	methods	of	geolocation,	such	as	CSLI,	GPS,	and	other	location	data.	

See	State	v.	Sexton,	2017	ME	65, ¶ 9,	159	A.3d	335.		The	only	location	method	at	issue	here	is	CSLI.		

The	proceedings	in	Sexton	occurred	before	Maine’s	EDLIA,	16 M.R.S.	§§	647 to	650-B (2018),	was	

enacted	in	2013.		Id.	¶	6	n.3.
12

[¶23]		O’Donnell	does	have	standing	to	challenge	the	State’s	acquisition	

of	his phone’s	CSLI, see	Woods,	336	F.	Supp. 3d	at	826-27;	Fredericq,	97	N.E.3d

at	375.		And we	recognize	that	law	enforcement	agents	did	acquire	information	

from	Verizon	that	O’Donnell’s	and Nelson’s	phones	were	in	close	proximity	to	

each	other	in	the	area	of	Lewiston	where	O’Donnell	and	Nelson	were	ultimately	

found.		Nonetheless,	O’Donnell	lacks	standing	 to	challenge	 the	legality	of	law	

enforcement’s	acquisition	of	Nelson’s CSLI,	or	any	evidence	obtained	as	a	result	

of	that	acquisition, on	Fourth	Amendment	grounds.	 Sexton, 2017	ME	65,	¶	34,	

159	A.3d	335.		Because	O’Donnell	lacks	standing to	challenge	evidence	obtained	

as	a	result	of	 the	acquisition	of	Nelson’s	CSLI,	which	is	 the	same	evidence	he	

seeks	to	exclude	based	on	the	acquisition	of	his	own	CSLI,	we	need	not	decide	

whether	 the	 acquisition	 of	 O’Donnell’s	 CSLI	 was	 a	 search	 under	 the	 Fourth	

Amendment.		

B. Maine’s	Electronic	Device	Location	Information	Act		

[¶24]	 	 O’Donnell	 next	 argues	 that	the	 court	 erred	 when	 it	 declined	 to	

grant	his	motion	to	suppress	because	the	State	violated EDLIA,	16	M.R.S.	§§ 647

to	650-B, which, he	asserts,	provides	protections	that	the	federal	Constitution	

does	not,	including	a	heightened	expectation	of	privacy	in	CSLI and	a	limitation	

on	the	 disclosure	 or	 admission	in	 evidence	of	location	information	 acquired	
13

from	 an	 electronic	 device	 without	 a	 warrant.	 	 Again,	 however,	 O’Donnell’s	

location	 was	 discovered	 as	 a	 result	 of	 law	 enforcement’s	 acquisition	 of	

information	from	both	O’Donnell’s	phone	and	from	Nelson’s	phone.		

[¶25]		Although	O’Donnell	argues	on	appeal that the motion	court	should	

have	 suppressed	 evidence	 of	 his	 CSLI	 because	 it	 was	 obtained	 by	 law	

enforcement	in	 violation	 of	“the	warrant	provisions	 of	 §	650-A,” he	does	not	

argue	that	the	acquisition	and	disclosure	of	Nelson’s CSLI,	and	evidence	derived	

from	that	information,	was	also	a	violation	of section	650-A(1).		Even	if	he	did,	

he	lacks	standing	to	challenge	that	acquisition	and	disclosure.		In	the	absence	

of	statutory	language conferring	standing,	a	defendant’s	standing	to	challenge

actions	taken by	the	state pursuant	to	a criminal	statute	is	“no	broader	than	the	

Fourth	Amendment	rule	of	standing.”		United	States	v.	Matsura,	129	F.	Supp.	3d	

975,	979	(S.D.	Cal. 2015);	see	also	United	States	v.	Ruggiero,	928	F.2d	1289,	1303	

(2d	Cir.	1991); United	States v.	Martin,	169	F.	Supp.	2d	558,	564	(E.D.	La.	2001);	

United	States	v.	Garcia,	No. 90 Cr. 724 (DNE), 1991	U.S.	Dist.	LEXIS	8464,	at	*3	

(S.D.N.Y.	 June	21,	1991);	Commonwealth	v.	Williams,	900	N.E.2d 871,	876	n.8	

(Mass.	2009).		

[¶26]		EDLIA	does	not	confer	upon	a	defendant standing	to	challenge	the	

admissibility	 of	evidence obtained	by	law	enforcement	 from	 the	warrantless	
14

acquisition	of	location	information	of	a	nondefendant	 third	party’s	electronic	

device.	 	 Compare 16 M.R.S. §§ 647 to	 650-B with 18 U.S.C.	 §§ 2510(11),	

2518(10)(a)	 (LEXIS	 through	 Pub.		L.	 116-19) (defining	 under	 federal	 law	

persons	 who	 have	 standing	 to	 challenge	 unlawful	 acquisition	 of	 electronic	

evidence).	 To	the	extent	that	EDLIA	confers	standing at	all,	it	merely	reiterates

the	constitutional	standing	of	the	“owner”	and	“user”	of	the	device	as	persons	

who	 have	 a	 property	 interest	 or	 expectation	 of	 privacy	 in	 the	 device as	 the	

owner	or	user	of	it.		See 16	M.R.S.	§ 647(7),	(9).		

[¶27]	 	 As	 we	 previously	 noted,	 Fourth	 Amendment rights	 cannot	 be	

asserted	vicariously,	Rakas,	439	U.S.	at	133-34; O’Rourke,	2001	ME	163,	¶	21	

n.1, 792	A.2d	262,	and	a	defendant	“must	demonstrate	that	his	own reasonable	

expectation	of	privacy	was	violated	by	the	action	of	the	State.”		Lovett,	2015	ME	

7, ¶	 8,	 109	 A.3d	 1135 (quotation	 marks	 omitted).	 	 Here, O’Donnell has

presented	 no	 evidence	 that	 he	 owned or	 used	 Nelson’s	 phone,	 or	 that	 the	

acquisition	and	disclosure	of	Nelson’s	CSLI	violated	his expectation	of	privacy.		

He	 therefore lacks	 standing	 to challenge	 the	 acquisition	 and use	 of	Nelson’s	

CSLI	 and	 evidence	 derived	 from	 that	 acquisition	 under	 EDLIA.		

See Commonwealth	v.	Lugo,	120 N.E.3d	1212,	1224-26	(Mass.	2019);	Estabrook,	

38	 N.E.3d	 at	 237	 n.9.	 	 Because	 O’Donnell	 lacks	 standing	 under	 EDLIA	 to	
15

challenge	the	evidence	obtained	as	a	result	of	the	acquisition	of	Nelson’s	CSLI—

which	 is	 precisely	 the	 same	 evidence	 he	 seeks	 to	 suppress	 based	 on	 the	

acquisition	of	his	own	CSLI—whether	the	State	violated	his	rights	under	EDLIA	

when	it	 obtained	 his	location	information	without	 a	warrant	is irrelevant	 to	

whether	the	court	erred	in	denying	his	motion	to	suppress.		

C. Consent	to	Enter	and	Search	O’Donnell’s	Residence

[¶28]	 	 Finally,	 O’Donnell	 argues	 that	 the	 trial	 court	 erred	 when	 it	

determined	that	the	police	had	an	objectively	reasonable	belief	that	Nelson,	as	

an	occupant	of	O’Donnell’s	residence	in	Lisbon,	had	authority	to	consent	to	the	

entry	and	search	of	the	premises.		

[¶29]		“A	court’s	factual	findings addressing	the	existence	of	consent	are	

reviewed	for	clear	error.		The	ultimate	question	of	whether	the	facts,	as	found,	

establish	 that	an	individual	consented	 to	 the	ensuing	 search	and	 seizure	is	 a	

distinctly	legal	question	that	we	will	review	de	novo.”	 State	v.	Nadeau,	2010	ME	

71,	 ¶	 18,	 1	 A.3d	 445 (citation	 omitted).	 	 Because	 the	 court’s	 findings	 are	

supported	by	the	record	and	reflect	no	errors,	we	review	de	novo	whether	it	

was	 objectively	 reasonable	 for	 the	 police	 to	 believe	 that	 Nelson	 had	 the	

authority	to	consent	to	the	search.	 Id.	¶	18	n.4.		
16

[¶30]	 	 It	 is	 well-settled	 that	 law	 enforcement	 may	 enter	 and	 search	 a	

residence	 upon the	 voluntary	 consent	 of	 the	 owner	 or	 a	 person	 who	 jointly	

occupies	 and	 has	 common	 authority	 over	 the	 premises.	 	 See	United	 States v.	

Matlock,	415	U.S.	164,	171	(1974);	State	v.	Carton,	2016	ME	119,	¶	17,	145	A.3d	

555.		The	United	States	Supreme	Court	has	considered	whether	“a	warrantless	

entry	is	valid	when	based	upon	the	consent	of	a	third	party	whom	the	police,	at	

the	time	of	the	entry,	reasonably	believe	to	possess	common	authority	over	the	

premises,	but	who	in	 fact	does	not	do	so.”		Illinois	v.	Rodriguez,	497	U.S.	177,	

179	 (1990) (emphasis	 added).	 	 The	 Supreme	 Court’s	 decision in	 Rodriguez	

instructs	that	a	“determination	of	consent	to	enter	must	be	judged	against	an	

objective	 standard:	 would	 the	 facts	 available	 to	 the	 officer	 at	 the	

moment . . . warrant	 [an	 officer]	 of	 reasonable	 caution	 in	 the	 belief	 that	 the	

consenting	 party had	 authority	 over	 the	 premises?”	 	 Id.	 at	 188	 (emphasis	

added)	(quotation	marks	omitted).		

[¶31]		Under	the	circumstances	presented	here,	we	conclude	that,	at	the	

time	of	entry,	the	police	officers’ belief	that	Nelson	had	common	authority	over	

the	premises	was	objectively	reasonable.		The	sergeant	had	learned	from	the	

caller	 and	 the	 individual	 in	 Florida	 that	 Nelson	 had	 returned	 with	 her	

belongings	 and	 her	 daughter	 to	 O’Donnell’s	 residence	 in	 Lisbon	 on	 April	 3,	
17

2015.		The	Lisbon	officer	testified	that	he	had	encountered	Nelson	many	times	

before	 and	 knew	that	 “[s]ince	 I’ve	 been	 dealing	 with	 Danielle	 Nelson,	 since	

2011,	she’s	resided	at	[O’Donnell’s	residence]	in	Lisbon.”		He	also	testified	that	

Nelson	 had	 previously	 returned	 to	 O’Donnell’s	 Lisbon	 residence	 after	 she	

alleged	 that	 O’Donnell	 assaulted	 her	 and,	 as	 a	 result,	 O’Donnell	 was	 not	

permitted	 to	 return	 to	 the	 residence	 because	 Nelson	 was	 living	 there.	 	 The	

Lisbon	officer	testified	further	that,	when	he	transported	Nelson	to	the	Lisbon	

residence,	she	“let	[the	officers]	into	her	home”	and	retrieved	the	contraband	

from	a	hidden	place	behind	a	wall	and	from	an	attic	space in	the	garage.		Based	

on	 the	 information	 available	 to	 the	 officers who	 accompanied	 Nelson	 to	 the	

Lisbon	 residence,	at	 the	 time	 of	entry,	 their	collective	belief	 that	Nelson	had	

common	authority	over	the	premises	was	objectively	reasonable.8		

The	entry	is:

Judgment	affirmed.	

 8	 	We	 are	 not	 persuaded	 by	 O’Donnell’s	 additional	 argument	 that	 his	 statement	 to	 Nelson	 on	

April 5,	2015,	as	the	police	escorted	her	out	of	the	hotel	room	that	she	should	not	“tell	[the	police]	

shit”	revoked	any	authority	Nelson	had	over	his	residence.		O’Donnell’s	order	to	Nelson	not	to	speak	

with	the	police	did	not	amount	to	a	specific	revocation	of	her	apparent	common	authority	over	the	

shared	premises.		
18

Adam	P.	Sherman,	Esq. (orally),	Sherman &	Worden,	P.A.,	Auburn,	for	appellant	

Kevin	O’Donnell

Andrew	S.	Robinson,	District	Attorney (orally), and	Claire	Gallagan	Andrews,	

Asst.	Dist.	Atty.,	Office	of	the	District	Attorney,	Farmington, for	appellee	State	of	

Maine

Janet	T.	Mills,	Attorney	General,	and	Paul	Rucha,	Asst.	Atty.	Gen. (orally),	Office	

of	the	Attorney	General,	Augusta,	for	amicus	curiae	Attorney	General

Lawrence	C.	Winger,	Esq.,	amicus	curiae pro	se

Zachary	L.	Heiden,	Esq.,	American	Civil	 Liberties	Union	of	Maine	Foundation,	

Portland,	 for	amici curiae	American	Civil	Liberties	Union	of	Maine,	American	

Civil	Liberties	Union,	Electronic	Frontier	Foundation,	and	Maine	Association	of	

Criminal	Defense	Lawyers	

Tina	 Heather	 Nadeau,	 Esq.,	 Maine	 Association	 of	 Criminal	 Defense	 Lawyers,	

Portland,	for	amicus	curiae	Maine	Association	of	Criminal	Defense	Lawyers

Franklin	County	Unified	Criminal	Docket	docket	number	CR-2015-407

FOR	CLERK	REFERENCE	ONLY