MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2019	ME 98 Docket: Fra

- 17

- 12 Argued: October	12,	2017 Reargued: October	2 3 ,	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	pursu ant	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 a ll 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	 search2 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	 (201 8 ) ;	 (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 view ed in	the	light	most favorable	 to	 the	motion	 court’s order

. See	 State	 v.	 Gerry ,	 2016	ME	 163, ¶ 2, 150 A.3d	810. [¶ 4 ] O n	April	4,	2015,	a s ergeant	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	 ammunitio n,	 and several	 firearms

— including	 a	 loaded	 handgun

— had been	taken	from	his	residence. [¶ 5 ] T he	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 s ergeant	tha t	he	had	ended	a	relationship	with	Nelson	on	April	3,	2015, and	drove	Nelson,	her	daughter,	and	their	belongings	to	O’Donnell’s	residence3 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 ] T he s ergeant	 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

s ergeant	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 s ergeant then contacted	the	Franklin	County	and	Androscoggin County d ispatch c enters. 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 s ergeant	 asked	 an o fficer	 from	 the	 Lisbon Police	Depa rtment,	who	was	 familiar	with	O’Donnell	 and	 his	 residence	 from previous	encounters,	to	check	O’Donnell’s	home	in	Lisbon.		The	Lisbon o fficer went	 to	 O’Donnell’s	 residence and, although	 he did	 not	 make	 contact	 with4 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 s ergeant , the Androscoggin	County	dispatcher prepared	and submit ted 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 s ergeant	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. [¶1 0 ]	 	 The s ergeant	 received	 the	 information from	 Verizon	 for	 both numbers .		The	data revealed	that	at	the	moment the	cell	phones	were pinged, they	we re	located in an	area	of	Lewis t on	near	two	motels	and in	close	proximity to	one	another. The s ergeant relayed	 th e 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	o n	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 request s	were	m ade	for location	information	for	both	of	their	cell	phones.5 [¶1 1 ]		By	this	time,	the	Lisbon o fficer	had left O’Donnell’s	residence	and was	 directed	 by	 a	 dispatcher	 to	 search the area	 in	 Lewiston i dentified	 by
Verizon. I n	 Lewiston,	 the	 Lisbon o fficer	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 o fficer	and	backup	officers forcibly	entered the room , secured	O’Donnell	and	Nelson , and	placed	them	under	arrest. [¶1 2 ] 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. [¶1 3 ] 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 [¶1 4 ] 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. [ ¶1 5 ] In	December	2016,	O’Donnell	entered conditional guilty	plea s 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). [¶1 6 ] A fter	we	heard	oral	argument s in this	case in October	2017,	 the United States	Supreme	Court	heard	oral	argument s 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 c ontinuously	 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).	.	.	.
W ireless	carriers	collect	and	store	CSLI	for	the ir	own	business	purposes	.	.	.	.7 conducts	a	search	under	the	Fourth	Amendment	when	it	accesses historical	cell phone	 records	 that	 provide	 a	 compr ehensive	 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 2 3 , 2018.
II.		DISCUSSION [¶1 7 ]		On	appeal,	O’Donnell	challenges	the	court’s	denial	of	his	mo tion	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	ne ar	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	C SLI because,	unlike	other	forms	of	third

party	 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	meaningf ul	sense”	voluntarily	disclosed. Id .	at	2219

- 20.8

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 (a lteration in original ) (quotation marks omitted).
A. The	Fourth	Amendment [¶1 8 ]		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	c ourt	should	have suppress ed 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. [¶1 9 ] 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 o f Nelson’s phone in	 an effort to	 locate O’Donnell

. Because	Nelson	has	not	challenged	the	State’s search of	her	phone’s9 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 exclu sion	of the evidence that	was	acquired by way of	Nelson’s	CSLI. I f 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	w ay	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	 t he	Government argued	 that	 “ the	seven	days	of	CSLI	 [it] requested	from	Sprint [w] as	the pertinent	perio d

. ” Carpenter ,	138	S.	Ct.	at	2217	n.3. However,	the10 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. [¶ 2 1]	 	 Courts	 have	 consistently	 held	 that	 defendant s ha ve 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	showi ng a	phone’s	location	when	 the	defendant	has	no	property interest	or	expectation	of	privacy	in the particular devic e 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	F ourth	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

. ”) ; s ee	also State v.	Sexton, 2017	ME	65, ¶ 34,	159	A.3d	335 ( holding that	a	defendant	does	not have standing	whe n the phone at	issue belongs	to	a	nonparty) ; Commonwealth v.	Estabrook ,	38	N.E.3d	231,	237	n.9	(Mass.	201 5 )	( 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	C SLI. 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 doe s have	standing	to	cha llenge	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	l aw	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 CSL I , or	any evidence	obtained	as	a	result of	that	acquisition, on	Fourth	Amendment	grounds

. Sexton , 2017	ME	65,	¶	34, 159	A.3d	33 5. 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	Ac t [¶ 24 ]	 	 O’Donnell next argues	 that the	 court	 erred	 when	 it declined	 to grant his	motion	to	suppress	because the	State violat ed EDLIA ,	16	M.R.S. §§ 647
to 6 50

- 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	 acquired13 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	argue s	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. I n	the	absence of	statutory	language conferring	standing ,	a	defendant’s	standing	to	challenge
action s 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.	20 0 1); 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	warrantless14 acquisition	of location	information	of a	nondefendant	 thir d party’s electronic device. Compare 16 M.R.S. §§ 647 to 650

- B with 18 U.S.C.	 § § 25 10(11), 25 18(10)(a)	 (LEXIS	 through	 Pub. L.	 116

- 1 9 ) (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	 note d , 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	 owne d 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	 to15 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	locati on	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 author ity	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	o f	consent	to	enter	must	be	judged	against	an objective	 standard:	 would	 the	 facts	 available	 to	 the	 officer at	 the

moment

. . . warrant [ a n	 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 s ergeant	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 o fficer testified	that	he had	encountered	Nelson	many	times bef ore	 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	 assa ulted	 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	r etrieved	the	contraband from	a	hidden	place	behind	a	wall	and	from an attic	space in	the	garage

. Based on	 the	 information	 available	 to	 the o fficer s who	 accompanied	 Nelson	 to	 the Lisbon	 residence , at	 the	 time	 of	entry,	 their	collective	belief	 that	Nelson	h ad 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	esc orted	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	autho rity	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 a micus c uria e	Attorney	General Lawrence	C.	Winger,	Esq., a micus c uriae pro	se Zachary	L.	Heiden,	Esq.,	American	Civil	 Liberties	Union	of	Maine	Foundation, Portland,	 for a mic i c uriae	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 a micus c uriae	Maine	Association	of	Criminal	Defense	Lawyers

Franklin	County	Unified	Criminal	Docket	docket	number	CR

- 2015

- 407 F OR C LERK R EFERENCE O NLY