State v. Warner

216 A.3d 22

STATE of Maine

v.Michael J. WARNER II

Docket: Kno-18-220

Supreme Judicial Court of Maine.

Argued: February 5, 2019

Decided: August 29, 2019

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

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

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. 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 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 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 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 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

[¶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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (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 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.

[¶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).⁷

II. DISCUSSION

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