MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 103
Docket: Lin-15-369
Argued: April 5, 2016
Decided: July 12, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.
STATE OF MAINE
v.
JAMES R. SIMMONS
*****
STATE OF MAINE
v.
FREDERICK A. CAMPBELL
HJELM, J.
[¶1] The State appeals from an order entered by the Superior Court (Lincoln
County, Billings, J.) suppressing evidence of cellular telephone records, seized
pursuant to search warrants, for defendants James R. Simmons and Frederick
Campbell after the court determined that the warrants were not supported by
probable cause. We conclude that the affidavits establish probable cause for the
State to seize those portions of Simmons’s cell phone records relating to historical
cell site location data for June 21, 2012, and we therefore vacate that part of the
2
suppression order. We affirm the remaining aspects of the suppression order as to
Simmons and the order in its entirety as to Campbell.
I. BACKGROUND
[¶2] Kenneth G. MacMaster of the State Fire Marshal’s Office was involved
in the investigation of two structure fires that took place in Friendship on separate
dates in June 2012. One of the fires occurred on property belonging to James
Simmons, and the other occurred on property belonging to Donald Simmons.
MacMaster submitted three separate applications for search warrants, each
supported with an affidavit, to obtain cellular telephone records belonging to
Donald Simmons, James Simmons, James Simmons’s wife, and Campbell. The
first application sought cell phone records of both James Simmons and Donald
Simmons. The second application added a request for Campbell’s cell phone
records. The only relevant change in the third affidavit was that the State now
sought the cell phone records of James Simmons’s wife. The information in the
affidavits supporting the three warrant applications is substantially identical and
includes the following facts.
[¶3] Donald Simmons and James Simmons, who are not related, are both
commercial fishermen. Campbell is James Simmons’s sternman. James Simmons
told MacMaster that he was involved in a “commercial fishing feud” with Donald
Simmons. According to a marine patrol officer who assisted the Fire Marshal’s
3
Office with the investigation, during the course of that feud hundreds of lobster
traps belonging to both men were cut, James Simmons was arrested for criminal
threatening for shooting a rifle “in the direction” of Donald Simmons, and
gunshots were fired at James Simmons’s boat.
[¶4] The first of the two fires occurred during the early morning hours of
June 10, 2012, and caused significant damage to buildings, along with their
contents, that James Simmons owned and used for his fishing business. The
second fire occurred on June 21 on property owned by Donald Simmons and
destroyed a large boathouse, along with a boat owned by another person, which
was stored inside the boathouse. That fire was first reported shortly after
10:00 p.m. The Fire Marshall’s Office determined that both fires were
“incendiary.”
[¶5] James Simmons told MacMaster that at the time of the June 10 fire that
damaged his property, he was sleeping on his boat in Portland Harbor and learned
about it the next morning when he turned on his telephone and received a text
message from his wife. James Simmons accused Donald Simmons of starting the
June 10 fire. Donald Simmons told MacMaster that he was fishing offshore at the
time of the June 10 fire but believed that the June 21 fire on his property was
started by James Simmons and Campbell in retaliation for the June 10 fire.
4
[¶6] Donald Simmons’s sternman told investigators that at approximately
8:30 p.m. on June 21, he saw a truck speeding away from the direction of
Donald Simmons’s property, where the fire was reported roughly ninety minutes
later, and that although he could not see who was driving, he was certain that the
vehicle was James Simmons’s. James Simmons’s wife told MacMaster that from
8:30 p.m. that night, she was with James Simmons at their home in Friendship and
that as far as she knew, his truck was in the driveway the entire night. As for
Campbell, another person told MacMaster that on the evening of June 21 Campbell
had been at the home of an acquaintance and left around dark, saying that he would
return, but did not.
[¶7] The State submitted three applications for search warrants between
June 2012 and February 2013. As the applications related to James Simmons and
Campbell, the State sought to obtain cell phone records relating to the limited
hours surrounding both fires. The requested warrants were for records containing
“[a]ll stored communications and other files reflecting communications;” all files
that had been accessed; “[a]ll connection logs, cellular tower hits and records of
user activity,” including the connection date and time, short message service and
multimedia messaging service use; and “[a]ll records and other evidence . . .
including, without limitation . . . mailing addresses, billing records . . . and any
other identifying information, whether such records or other evidence are in
5
electronic or other form.” In the applications, MacMaster stated that the records
for James Simmons and Campbell “will likely reveal the whereabouts of both men
around the time of both [a]rson fires . . . . Potentially, the records could reveal
communications about the incidents and potential accomplice information.”
MacMaster presented the warrant applications to a Maine District Court judge
(Dow, J.), who issued the warrants as requested by the State.
[¶8] On June 19, 2014, the State filed criminal complaints against James
Simmons and Campbell, charging them each with two counts of arson,
17-A M.R.S. § 802(1)(A), (B)(2) (2015), relating to the June 21 fire on
Donald Simmons’s property. They were subsequently indicted for those crimes.
James Simmons filed a motion to suppress evidence seized as a result of the search
warrants, arguing that the warrants were not supported by a showing of probable
cause. Campbell joined the motion. After a nontestimonial hearing, the court
(Lincoln County, Billings, J.) granted the motion, concluding that the affidavits
failed to establish probable cause to believe that either James Simmons or
Campbell were involved in the June 21 fire.
[¶9] With the approval of the Attorney General and pursuant to 15 M.R.S.
§§ 2115-A(1), (5) (2015) and M.R. App. P. 2(a)(4) and 21(b), the State timely
appealed.
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II. DISCUSSION
[¶10] The State argues that, contrary to the court’s determination,
MacMaster’s affidavits contained sufficient evidence for the magistrate to find that
there was probable cause to believe that James Simmons and Campbell were
criminally involved in the June 21 fire on Donald Simmons’s property and that cell
phone records of historical cell site location information would contain evidence of
their criminal activity.1 Although the warrants authorized the seizure of recorded
data that include but go beyond historical location information, at oral argument
the State indicated that it is now challenging only the portion of the order
suppressing records of historical cell site location information.
[¶11] On an appeal from an order granting a motion to suppress evidence
seized pursuant to a search warrant, “we directly review the finding of probable
cause made by the magistrate who issued the warrant.” State v. Johndro,
2013 ME 106, ¶ 9, 82 A.3d 820 (footnote omitted). 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 contraband or
evidence of a crime will be found in a particular place.” Id. ¶ 10. In order to meet
1
The State also asserts that the court erred when it examined the warrants for a showing of probable
cause instead of the lower standard of reasonable articulable suspicion. The State sought the warrants
based on a probable cause standard, however, and it did not advocate a different standard to the trial
court. The State therefore has not preserved this issue for appellate review. See State v. Blais,
416 A.2d 1253, 1256 n.2 (Me. 1980).
7
the probable cause standard, the affidavit “must set forth some nexus between the
evidence to be seized and the locations to be searched.” State v. Gurney, 2012 ME
14, ¶ 33, 36 A.3d 893 (quotation marks omitted). Such a nexus may be “inferred
from the type of crime” and “the nature of the items sought.” Id. (quotation marks
omitted). Descriptions of noncriminal activity in a search warrant affidavit cannot
support a finding of probable cause unless the warrant also contains allegations of
criminal conduct that “color” the noncriminal activity. See State v. Diamond,
628 A.2d 1032, 1034 (Me. 1993).
[¶12] Our inquiry on appeal is limited to whether there is a substantial basis
for the probable cause finding. Johndro, 2013 ME 106, ¶ 9, 82 A.3d 820. We
review only the information within the “four corners” of the affidavit, id., but we
do so construing the information in the affidavit in a positive light and allowing for
“reasonable inferences that may be drawn to support the magistrate’s
determination,” id. (quotation marks omitted). Legal conclusions are reviewed de
novo. State v. Cote, 2015 ME 78, ¶ 9, 118 A.3d 805.
[¶13] We first consider the State’s challenge to the order suppressing
evidence as to Campbell, and then turn to the suppression of evidence against
James Simmons.
8
A. Frederick Campbell
[¶14] The only facts contained in the affidavits bearing on Campbell’s
suspected role in the June 21 fire are that Campbell worked as James Simmons’s
sternman, and that on the night of the fire, he left the house of a friend he was
visiting and expressed an intention to return to the residence but did not do so.
[¶15] This is not enough to establish probable cause. Although the
affidavits may be seen as an attempt to establish a nexus between Campbell’s
employment as James Simmons’s sternman and the ongoing feud between James
Simmons and Donald Simmons, they do not contain allegations of any criminal
activity planned, anticipated, or committed by Campbell that could be used to
“color” the significance of his noncriminal activity. See Diamond, 628 A.2d at
1034. Even when the information in the affidavits is viewed in a positive light
with allowance for all reasonable inferences, see Johndro, 2013 ME 106, ¶ 9,
82 A.3d 820, the information is too meager to support a probable cause
determination that Campbell had anything to do with the June 21 fire, much less a
finding that evidence of criminality would be found in his cell phone records. The
court therefore did not err by concluding that the issuance of the warrant for his
cell phone records violated his constitutional rights.
9
B. James Simmons
[¶16] The affidavits did not contain information that would allow a probable
cause determination that James Simmons had any criminal involvement in the
June 10 fire, which occurred on his own property, or that any of his cell phone
records for that night would contain information of criminal activity. The court
therefore correctly suppressed evidence of his cell phones records for June 10.
[¶17] In contrast, the information contained in the affidavits drawing a
connection between James Simmons and the June 21 fire on Donald Simmons’s
property is sufficiently incriminating to support a probable cause determination
that James Simmons had some criminal involvement in that fire. The affidavits
state that James Simmons was engaged in an overtly and sometimes dangerously
hostile relationship with Donald Simmons. The affidavits also provide information
that on the night of the June 21 fire, Donald Simmons’s sternman saw James
Simmons’s truck traveling at a high rate of speed away from the location of the fire
less than two hours before the fire was reported. The statement of Donald
Simmons’s sternman calls into question an alibi provided by James Simmons’s
wife that his truck remained parked in their driveway the entire night. James
Simmons’s wife’s statement could reasonably be viewed as an effort to create false
exculpatory information, which itself has an inculpatory effect. Thus, taken as a
whole and viewed in a positive manner toward the finding of probable cause, the
10
information contained in the affidavits is sufficient to indicate that James Simmons
had a significant motivation and opportunity to commit arson, and it supports the
magistrate’s determination that there is probable cause to believe that James
Simmons had some involvement in the June 21 fire.
[¶18] Based on the limited challenge the State presents here, the next
question is whether that information also supports the probable cause
determination that evidence of criminal conduct would be found in historical cell
site location records associated with James Simmons’s cellular telephone for
June 21, 2012.
[¶19] Evidence of James Simmons’s location at times relevant to the
June 21 fire was clearly important to the investigation and any resulting
prosecution of him for arson. James Simmons’s wife placed him—and his
vehicle—at their residence during the evening of the fire, but another witness saw
his vehicle being driven away from the location of the fire at a high rate of speed
not long before the fire was reported. Therefore, James Simmons’s whereabouts
on the evening of June 21 is a material issue in the case.
[¶20] The affidavit contains information that James Simmons possesses and
uses a cellular telephone, because that was the evident means by which he learned
of the fire that damaged his property on June 10, when he received a text message
sent from his wife after he turned on his phone.
11
[¶21] The technological process that generates cell site location information
has been explained in cases where governmental entities have sought that type of
information. See, e.g., In re Application of the United States for Historical Cell
Site Data, 724 F.3d 600, 613 (5th Cir. 2013); In re Applications of the United
States for Orders pursuant to 18 U.S.C. 2703(d), 509 F. Supp. 2d 76, 78-79
(D. Mass. 2007); In re Application of the United States for an Order Authorizing
the Installation and Use of a Pen Register, 402 F. Supp. 2d 597, 599
(D. Md. 2005). Cell phone providers use cell site towers to provide coverage.
These towers have antennae that receive and transmit signals from cellular
telephones in a given area. When a cell phone is present in areas serviced by
different towers, the phone generally switches to the tower that provides the best
reception. Cell service providers create and maintain records of the location of the
tower used by a cell phone and the time of that use. The purpose of those records
is for the carrier to “perhaps . . . monitor or optimize service on its network or to
accurately bill its customers for the segments of its network that they use.” In re
Application of the United States for Historical Cell Site Data, 724 F.3d at 611-12.
That same information makes it possible to identify at least the general location of
a cell phone at the time the phone connects to a tower. See generally id. at 613-14;
United States v. Graham, 846 F. Supp. 2d 384, 392 (D. Md. 2012) (noting that
historical cell site location data “only reveal[s] which cellular towers were used to
12
route a particular call. By extension, this information can only reveal the general
vicinity in which a cellular phone is used.”); Aaron Blank, The Limitations and
Admissibility of Using Historical Cellular Site Data to Track the Location of a
Cellular Phone, 18 Rich J.L. & Tech. 3, 5-8 (2011).
[¶22] For that reason, historical cell site location data for James Simmons’s
cell phone could be expected to have evidentiary value, because those data could
be reasonably expected to provide information about his approximate location and
travel route at the times relevant to the June 21 fire. Therefore, we conclude that
the affidavits presented to the magistrate, when read in a positive light, contain
sufficient information to allow a probable cause determination that evidence of
criminal conduct would be found in historical cell site location records for James
Simmons’s cellular telephone for June 21, 2012.
C. Severability of the Search Warrant
[¶23] The remaining issue arises from the State’s election not to challenge
the order suppressing evidence of James Simmons’s cell phone records other than
those records that provide historical cell site location information for June 21. In
effect, the State has confessed error concerning portions of the warrants, which the
court later determined were issued improperly. We therefore must consider
whether the unconstitutional portions of the warrants fatally taint the portions of
the warrants that survive scrutiny. Although the trial court did not reach this issue
13
because of its comprehensive order of suppression, we consider the severability of
a warrant as a question of law. See Cote, 2015 ME 78, ¶ 9, 118 A.3d 805; see also
United States v. Soussi, 29 F.3d 565, 568 (10th Cir. 1994) (stating that appellate
review of the severability of a warrant is a determination of law that is reviewed de
novo).
[¶24] When a search warrant is wholly unconstitutional or otherwise
invalid, total suppression of the evidence seized is generally the appropriate
remedy. See United States v. Sells, 463 F.3d 1148, 1154 (10th Cir. 2006); State v.
Drown, 2007 ME 142, ¶ 7, 937 A.2d 157 (“Pursuant to the exclusionary rule,
evidence obtained in violation of a defendant’s right to be free from unreasonable
searches and seizures must be excluded at trial.”). As is recognized by the “weight
of authority,” however, if only portions of a search warrant are unsupported, a
court may sever those portions of the warrant from the properly issued portions,
thereby ordering partial suppression. United States v. Riggs, 690 F.2d 298, 300-01
(1st Cir. 1982) (stating that “virtually every state court” has adopted the remedy of
partial suppression); see also United States v. Sears, 411 F.3d 1124, 1129 (9th Cir.
2005). As one commentator has explained, “it would be harsh medicine indeed if a
warrant issued on probable cause and particularly describing certain items were to
be invalidated in toto merely because the affiant and magistrate erred in seeking
and permitting a search for other items as well.” 2 Wayne R. LaFave et al.,
14
Search and Seizure: A Treatise on the Fourth Amendment, § 4.6(f) at 815 (5th ed.
2012).
[¶25] As a predicate to the partial suppression of evidence, the
constitutional aspects of the warrant must be readily identifiable and
distinguishable from the unsupported portions of the warrant, see United States v.
Spilotro, 800 F.2d 959, 967-68 (9th Cir. 1986), so that the former are “textually
severable,” id. at 968. Additionally, if the proper scope of the warrant is
“relatively insignificant” in proportion to the invalidated portions, severance may
not be warranted. Sears, 411 F.3d at 1130 (quotation marks omitted).
[¶26] Here, although the relative quantities of admissible and suppressed
evidence cannot be determined meaningfully from the record, the valid portion of
the search warrants, which authorizes the seizure of historical cell site location data
for June 21, is sufficiently particularized and readily distinguishable from the
portions of the warrant that the court properly suppressed. See Spilotro, 800 F.2d
at 967. This weighs significantly in favor of severance.
[¶27] Further, when it sought the warrants, the State made a showing that
likely exceeded what was necessary under applicable law. Pursuant to the Stored
Wire and Electronic Communications and Transactional Records Access Act
(SCA), see 18 U.S.C.S. §§ 2701-2712 (LEXIS through Pub. L. No. 114-183), the
State may well have been entitled to obtain the same noncontent information at
15
issue here, but with a lesser showing than is required by the conventional warrant
process, which the State chose to invoke. See id. § 2703(c)(1)(A)-(B), (d).
Pursuant to the SCA, in order to seize noncontent records such as historical cell
site location data, a governmental entity must demonstrate either probable cause
for a warrant, id. § 2703(c)(1)(A), or “specific and articulable facts showing that
there are reasonable grounds to believe that the contents of a wire or electronic
communication, or the records or other information sought, are relevant and
material to an ongoing criminal investigation” for a court order, id. § 2703(d).
See United States v. Graham, No. 12-4659, No. 12-4825, 2016 U.S. App. LEXIS
9797, at *7 (4th Cir. May 31, 2016) (en banc). A showing, based on “specific and
articulable facts,” that the requested records are “relevant and material” is less than
the showing needed to meet the probable cause standard. Graham, 2016 U.S. App.
LEXIS 9797 at *13-*14 (holding that a governmental entity’s acquisition of
historical cell site location information from a defendant’s cell phone provider
pursuant to section 2703(d) orders does not violate the Fourth Amendment and
stating that “every other federal appellate court” and “the vast majority of federal
district court judges” have come to the same conclusion); see In re Application of
the United States for Historical Cell Site Data, 724 F.3d at 608-15 (holding that in
contrast to content and tracking information, historical cell site information
contained in a carrier’s business records does not give rise to full Fourth
16
Amendment protections to the caller); In re Application of the United States for an
Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the
Gov’t, 620 F.3d 304, 313 (3d Cir. 2010).
[¶28] Here, because the State sought a warrant based on a probable cause
standard, it assumed a greater burden than was required pursuant to the SCA, and
in doing so, the State—by inadvertence or otherwise—triggered a process that
likely gave Simmons a greater level of protection than might have been available
to him had the State sought a court order pursuant to section 2703(d) of the SCA.
[¶29] The purpose of the exclusionary rule is to deter police misconduct and
prevent the State from benefitting from that misconduct by foreclosing the State’s
opportunity to use illegally obtained evidence against the accused at trial. State v.
Bailey, 2012 ME 55, ¶ 16, 41 A.3d 535. Here, the State made a probable cause
showing to obtain warrants allowing the seizure of historical cell site location data
for June 21. Although a component of the warrant was not supported by probable
cause, the State’s invocation of a warrant application process that was favorable to
James Simmons is a factor that diminishes the justification to impose a remedy
designed to discourage malfeasance. Perhaps more importantly, the lawful
portions of the warrant are readily severable from the rest, allowing the court to
identify what evidence can be appropriately used at trial and what evidence the
State cannot use because of the excessive scope of the warrant.
17
[¶30] In light of the established principle that favors severance and the
suitability of severance in the circumstances of this case, we conclude that
evidence of historical cell site location data obtained pursuant to the warrants for
James Simmons’s June 21 cell phone records may be properly severed from the
unconstitutionally broad aspects of the warrants. The evidence that the State
obtained properly is therefore not subject to suppression.
III. CONCLUSION
[¶31] We recognize the tension between Fourth Amendment protections and
modern technological developments that affect and often intrude into privacy
rights, see Kyllo v. United States, 533 U.S. 27, 33-34 (2001), as well as the
evolving nature of the law in the present context, see In re Application of the
United States for Historical Cell Site Data, 724 F.3d at 614. Our holding today
applies only to warrants authorizing the seizure of a limited category of business
records of past events and does not extend to other types of information that create
greater levels of intrusion into personal privacy, such as contemporaneous tracking
data and communications content. Here, the State presented sufficient information
for a magistrate to make a probable cause determination allowing the seizure of
records of historical cell site location data for James Simmons’s cellular telephone
for June 21, 2012. That evidence was seized without injury to James Simmons’s
18
constitutional rights and is admissible, even though other portions of the warrant
were issued improperly.
The entry is:
That portion of the order suppressing evidence of
historical cell site location data contained in James
Simmons’s cell phone records for June 21, 2012, is
vacated. The suppression order is affirmed in all
other respects. The case is remanded for further
proceedings.
On the briefs and at oral argument:
Katie R. Hollstrom, Asst. Dist. Atty., District Attorney’s Office,
Wiscasset, for appellant State of Maine
Steven C. Peterson, Esq., West Rockport, for appellee James R.
Simmons
Peter E. Rodway, Esq., Rodway & Horodyski, P.A., Portland,
for appellee Frederick A. Campbell
Lincoln County Superior Court docket numbers CR-2014-171 and CR-2014-172
FOR CLERK REFERENCE ONLY