MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 157 Docket: Cum

- 18

- 485 Argued : October	10,	2019 Decided: November	7,	2019 Panel: ALEXANDER , MEAD, GORMAN,	JABAR , HJELM, and HUMPHREY, JJ.

STATE	OF	MAINE

v. DAVID	W.	MARBLE	JR.

GORMAN ,	J. [¶1] David	W.	Marble	Jr. appeals	from a	judgment	of	conviction	o f two counts	 of intentional	 or	 knowing murder,	 17

- A	 M.R.S.	 § § 201(1)(A) (2018) , 1158

- A(1)(B)	 (201 5 ), 1 entered	 by	 the	 trial	 court	 (Cumberland	 County, Murphy, J. ) after a	jury	trial. 2 Marble	argues	that	the	court	erred	in	denying	his motion	 to	suppress evidence	of	his cell	site	location	information	because	 the information	was	obtained	 through	a	search	warr ant	issued	without	probable

cause .		We	affirm	the	judgment.

1 Title	17

- A	M.R.S.	§	1158

- A	has	since	been	repealed	and	replaced. See P.L.	2019,	ch.	113,	§§ A

- 1, A

- 2	(effective	May	16,	2019)	(to	be	codified	at	17

- A	M.R.S.	§	1504.)

2 Marble	was	also	convicted	of	illegal	possession	of	a	firearm	by	a	prohibited	person	(Class	C), 15 M.R.S.	 §	 393(1)(C)	 (201 5 ) , after	waiving	 his	 right	 to	 a	jury	 trial	 on	 that	 count. See P.L.	 2015, ch. 470,	§	1	(effective	July	29,	2016	(amending	15	M.R.S.	§	393(1),	but	not	in	any	way	relevant	to	this appeal). Marble	does	not	challenge	this	conviction	on	appeal.2 I.		BACKGROUND [¶ 2 ] On	 December	 2 6,	 2015,	 a	 detective	 investigating two	 apparent homicides applied	 for	 a	 search	 warrant	 for	 the	 historical	 cell site	 location information	(CSLI)	of	seven	telephone numbers , including	Marble’s , that	were in	contact	with the cell	phone of	one	of	the	victims in	the	hours	before he was killed.		The	detective’s	affidavit	supporting	the	warrant	application	averred	the following	 facts relevant	 to	 the	existence	of	probable cause	 to justify	a search Marble’s	cell	phone	records

. See	State	v.	Nunez ,	2016	ME	185,	¶ ¶	18

- 20,	153 A.3d	84. [¶ 3 ] At	approximately	3:30	a.m.	on	December	25,	2015,	a	woman	called
9

- 1

- 1	reporting	that	she	had	been	shot.		The	police	were	able	to	track	the 9

- 1

- 1 call	to	the	area	of	Summerhaven	Road in	Manchester,	Maine ;	when	the	police arrived , they	found the	bodies	of	one	male	victim	and	one	female	victim	in	a	car they	later	learned	belonged	to	the	male	victim

. No	gun	was	found	at	the	scene , but a cell	ph one was	found in the	female	victim’s lap

. This cell	phone

— which belonged	to	the	male	victim

— was	the	phone	used	to	make	the	9

- 1

- 1	call. [¶ 4 ] Marble	was	a	drug	dealer operating	in	Maine and the	male	victim worked	for him

. Two	days	before	the	murder s , the male	victim was supposed

to collect money	from	another	drug	dealer and	bring	it to	Marble	but he did	not3 do	so. That	same	day ,	Marble obtained two	handguns. On	December	24,	eight calls	 were	 made	 to the	 male	 victim’s home	 phone	 from Marble’s cell phone

n umber

. Just	h ours	before	the	murders, the	male	victim and	some	friends	brok e into	 Marble’s	 apartment	 while Marble was	 not	 there	 and	 stole	 televisions, backpacks,	 guns,	 and	 drugs. Sometime	 after the	 male	 victim left	 Marble’s apartment but	while	the	friends	were	still	there , the	male	victim sent	one	of	the friends	a	text	message	that	read	“leave.” Marble’s cell phone was	used	to call the	male	victim’s cell	phone at	2:14	a.m.	on	December	25,	just eighty minutes before	the	9

- 1

- 1	call

. [¶ 5 ] Based	on	the	affidavit , a	judge ( Kennebec	County, Dow,	J. ) issued a search	warrant authorizing	 the	 seizure	 of	 records	associated	with	 seven	cell phone	 numbers ,	 including Marble’s

. 3 The	 police	 executed	 the	 warrant	 and obtained,	from	Marble’s	cell	phone	service	provider, Marble’s	CSLI

. [¶ 6 ] On	 February	 18,	 2016, Marble	 was	 indicted	 on	 two counts of intentional	 or	 knowing	murder,	 17

- A	M.R.S.	 § § 201(1)(A),	 1158

- A(1)(B),	 for both deaths. 4 Marble	 moved	 to	 suppress the evidence	 of	 his CSL I .	 	 A fter	 a

3 In	 addition	 t o	 the	 location	 information,	 the	 search	 warrant	 authorized	 the	 police	 to	 obtain Marble’s	cell	phone	content,	such	as	text messages ,	voice	mails,	and	call	logs

. Marble	challenges	only the seizure of	his	CSLI.

4 Marble	was	indicted	in	Kennebec	County,	but the	case	was	transferred	to	Cumberland	County after	the	court ( Murphy,	J. ) granted	Marble’s	motion	to	change	venue.4 testimonial	 hearing 5 held	 in	 July	 of	 2018 , the court	 ( Cumberland	 County, Murphy,	J. )	 denied Marble’s	motion , concluding that the	 affidavit	 established

“ sufficient	 probable	 cause to	 believe	 that	 Mr. Marble	 was involved	 in	 these homicides	and	further	that	evidence	of	the	crimes	of	homicide	could	be	located in	his	phone.” [¶ 7 ] T wo	 weeks	 later,	 t he court	 conducted	 an	 eight

- day	 jury	 trial

. Viewing	the	evidence	in	the	light	most	favorable	to	the jury’s	verdict ,	the	jury rationally	could	have	found	the	following	facts. See State	v.	McBreairty ,	2016 ME	61,	¶	2,	137	A.3d	1012. [¶ 8 ] Marble	was	involved	in	drug	trafficking	in	the	Augusta	area	and the male	victim worked	for	him. In	the	early	morning	hours of	December	25,	2015, the	 male	 victim and	 some	 friends	 decided	 to burgle Marble’s	 Augusta apartment. When	Marble	 returned	 to	 the	apartment,	he	discovered	 that t he apartment had	been burgled and	expressed	a	belief	 that the	male	victim was responsible. Along	with	two	associates,	Marble	drove	with the	victims out	to Summerhaven	Road,	where	Marble	shot	and	k illed	each	of	them.

5 At	the	commencement	of	the	hearing,	the	court	made	clear	that	its	determination	of	whether the	search	warrant	was	supported	by	a	showi ng	of	probable	cause	would	be	based	on	the	information contained	within	 the	 four corners	 of	 the	 affidavit.	 	 The	 court	 took	 testimony,	 however,	 on	 some terminology	used	in	the	affidavit.5 [¶ 9 ] At	the	end	of	the	trial,	the	jury	found	Marble	guilty	of	both	murder counts.	 	On	November	 9,	 2018,	 the	 court	 sentenced	Marble	 to	 a	 term	 of	life
i mprisonment for	 the	murder	 of the	 female	 victim and	 a	concurrent	 term	 of seventy
- fi ve	years	in	prison	for	the	murder	of the	male	victim .		Marble	timely appealed from the	 resulting	 judgment

. See 15 M.R.S.	 §	 2115	 (2018);	 M.R. App. P.	2B(b)(1).
II.		DISCUSSION [¶1 0 ] Marble	argues	that the judge who	issued	the	warrant	permitting the	 officers	 to	 obtain	 his	 CSLI erred	in	 determining	 that	 there	was probable

cause supporting the	warrant ’s	issuance

. When	a	trial	court	denies	a	motion	to suppress	evidence	obtained	pursuant	to	a	search	warrant,	we	“revi ew	directly the	 finding	 of	 probable	 cause	 made	 by	 the	 judicial	 officer	 who	 issued	 the warrant,	affording	that	finding	great	deference.” State	v.	Samson ,	2007	ME	33, ¶	1 1 ,	916	A.2d	977. Our	inquiry	is	limited	 to the	question	of	“ whether	 there was	a	substa ntial	basis	for	the	single	required	finding	of	probable	cause , ” State v.	Nickerson ,	574	A.2d	1355,	1356	(Me.	1990), and	we “must	give	the	affidavit	a positive	 reading	 and	 review	 the	 affidavit	with	 all	 reasonable	inferences	 that may	 be	 drawn	 to	 support	 the magistrate’s	 determination , ” State	 v.	 Johndro , 2013	ME	106,	¶	9,	82	A.3d	820 (quotation	marks	omitted).6 [¶1 1 ] Since	 2013,	 in	 Maine,	 law	 enforcement	 officers	 seeking information	 about	 the	location	 of	 an	 electronic	device	like	a	cell	phone	have been	 requir ed	 to	 obtain	 a	 warrant .	 	 16	 M.R.S.	 §	 648	 (2018). 6 R ecently, the United	States Supreme	Court held	that law	enforcement’s	acquisition of seven days ’ worth	 of an	 individual’s	 historical	 cell site	 location	 information from wireless	 carriers constituted	 a search	 for Fourth	 Amendment purposes . 7 Carpenter	v.	United	States ,	138	S. Ct.	2206 (2018).		In	reaching	its	decision,	the Court	reasoned	that an	individual	has	a	“legitimate	expectation	of	privacy in	the record	of	his	physical	movements	as	captured	through	CSLI

. ” Id. at 221 7. The officers	 investigating	 these	 murders	 complied	 with Carpenter and	 with
16 M.R.S.	§	648	when	they	sought	a	warrant	to	obtain	Marble’s	CSLI; our	role	is to	determine	whether there	was	a	substantial	basis	for	the	court’s	finding	that the	affidavit	they	presented	in	requesting	that	warrant	established “probable

6 Title	16	M.R.S.	§	648	has	since	been	amended,	but	not	in	any	way	relevant	to	this	appeal. See P.L.	2019,	ch.	489,	§	13	(effective	Sept.	19,	2019)	(to	be	codified	at	16	M.R.S.	§	648);	P.L.	2017,	ch.	144, §	5	(effective	June	8,	2017)	(codified	at	16	M.R.S .	§	648	(2018)).

7 The	Supreme	Court left	open	 the	question	of	whether	accessing less than	seven	days	of	CSLI constitutes	a	search	under	the	Fourth	Amendment. Carpenter v.	United	States ,	138	S. Ct. 2206, 2217 n.3 (2018) (“ [ W ] e	need	not	decide	whether	the re	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.”). Here , because law	enforcement	obtained	a	search	warrant	for	Marble’s	CSLI ,	we do	n ot	address	that	aspect	of	the Carpenter decision

.7 cause	 to	 believe	 that	 the	 grounds	 for	 the	 search	 exist [ed] ,”	 such	 as that the records would “constitute [] evidence	 of	 the	 commission	 of	 a	 crime.”	 	 M.R.U.
Crim. P. 41(c),	(f)(1) ; see	Nickerson ,	574	A.2d	at	1356. [¶1 2 ] “ A	 finding	 of	 probable	 cause	 rests	 on	 a	 practical,	 commonsense determination	whether,	given	 all	 the	circumstances	 set	 forth	in	 the	affidavit, there	is	a	fair	probability that	.	.	.	evidence	of	a	crime	will	be	found	in	a	particular place.” State	v.	Simmons , 2016	ME	103,	¶	11,	143	A.3d	819	(quotation	marks omitted); see	also Illinois	v.	Gates ,	462	U.S.	213 ,	238 (1983) ( setting	 forth the “totality

- of

- the

- circumstances”	test	for	probable	cause). To	support	probable

cause,	a warrant	affidavit must	“set	forth	some nexus	between	the	evidence	to be	 seized	 and	 the	 locations	 to	 be	 searched

. ” Johndro ,	 2013	 ME	 106,	 ¶	 10,
82 A.3d	820

. T hus,	a n	application to search an	individual’s	CSLI typically must establish some	connection	between	the	individual and	the	crime for	which	the individual’s	whereabouts may constitute	evidence ;	that	connection,	however, need	not	be expressly articulated	in	the	warrant	application

. State	v.	Warner , 2019	ME	140,	¶¶ 2 3

- 26,

--- A.3d

--- . [¶1 3 ] Here,	the information in	the	affidavit was	sufficient	to	support the judge’s determination that	there	was probable	cause to	believe that	Marble	was involved	 in both	 homicides and	 that	 his CSLI would	 contain or	 constitute8 evidence relevant	to	that	crime

. From	the	facts	in	the	affidavit,	the judge	who issued	the	warrant could	infer	that	Marble	knew	the	victims	and	was	in close and	very	recent contact	with	them

— the	male	victim worked	for	Marble	in	the local	drug	trade,	and	Marble had	called him nine	times	ov er	the	course	of	the prior	 two	days,	including	one	call just	over	an hour	before	 the	murders ;	 that Marble	 had	 the	 ability	 to	 commit	 the	 crime

— he	 had	 recently	 acquired	 two guns;	and	 that	Marble	likely	had	a	motive

— the	male	victim appeared	 to	owe Marble	mone y	and	had	also burgled Marble’s	apartment	just	hours	before	the murders. Taken	 together,	 these	 facts	 are	 sufficient to	 support	 the judge’s determination	that there	was	a	“fair	probability”	that Marble’s historical CSLI would	contain	evidence	of	the	murders. 8 Johndro ,	20 13 ME 106 ,	¶ 1 0, 82	A.3d
820

. The	entry	is: Judgment	affirmed.

8 We	are also unpersuaded	by	Marble’s	argument	that	the	trial	court	erred	by	instructing	the	jury on	accomplice	liability;	the	evidence	at	trial	was	sufficient	to	support	a	conviction	based	on	either principal	or	accomplice	liability. See 17

- A	M.R.S.	§	57(3)(A)	(2018); State	v.	Pheng ,	2002	ME	40,	¶	9, 791	A.2d	925; State	v.	Wright ,	662	A.2d	198,	202	(Me.	1995).9 Tina	Heather	Nadeau,	 Esq. (orally) ,	 The	 Law	 Office	 of	 Tina	Heather	 Nadeau, P LLC,	Portland,	for	appellant	David	Marble	Jr. Aaron	 M.	 Frey,	 Attorney	 General,	 and	 Donald	W.	 Macomber,	 Asst.	 Atty.	 Gen. (orally) ,	Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Cumberland	Coun ty	Unified	Criminal	Docket	docket	number	CR

- 2017

- 2176 F OR C LERK R EFERENCE O NLY