State v. O'Donnell

• Decision Date: 18 June 2019
• Docket Number: Docket: Fra-17-12
• Citation: 210 A.3d 815
• Parties: STATE of Maine v. Kevin M. O'DONNELL
• Court: Maine Supreme Court

210 A.3d 815

STATE of Maine

v.Kevin M. O'DONNELL

Docket: Fra-17-12

Supreme Judicial Court of Maine.

Argued: October 12, 2017

Reargued: October 23, 2018

Decided: June 18, 2019

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

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

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 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 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 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.

[¶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).

[¶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 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, 201 L.Ed.2d 507 (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 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 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...