ME: Nexus between cell phone and crime can be inferred from totality of affidavit

Probable cause was shown for nexus between defendant’s cell phone and a multi-person burglary ring. While the affidavit didn’t explicitly state that the conspirators would communicate by cell phone before the burglary, it was a reasonable inference on the totality. Therefore, the trial court erred in suppressing. State v. Warner, 2019 ME 140, 2019 Me. LEXIS 142 (Aug. 29, 2019):

[*P26] Because the crime was alleged to have been committed by more than one individual, the issuing judge could reasonably infer that the individuals conferred about the crime and that their cell phone account data would contain evidence of the crime. Cf. Riley v. California, 573 U.S. 373, 385 (2014) (observing that cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”). From the totality of these facts—the multiple individuals seen together near the hours of the crime, all with criminal histories, with one of them owning a vehicle matching both the description of the car at the scene of the crime and the description of the car observed at a location where discarded evidence of the crime was found—the judge could reasonably determine that Warner’s cell phone account data would produce evidence—for instance, text messages, voicemail messages, call history, and location information—that could demonstrate his involvement in the crime. Drawing all reasonable inferences in favor of probable cause, we conclude that the issuing judge had a substantial basis to issue the warrant.

[*P27] In reaching this conclusion, we emphasize its limited scope. The warrant at issue sought specifically identified aspects of Warner’s cell phone records, covering a defined period, from the wireless provider. The detective did not seek—and the court did not issue a warrant for—the seizure of Warner’s cell phone itself. As the Supreme Court has explained, a cell phone provides a wide-open window into a person’s life. Id. at 386, 395. “Cell phones … place vast quantities of personal information literally in the hands of individuals.” Id. at 386. “[M]any of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.” Id. at 395.

[*P28] The extraordinary breadth and sensitivity of information that people may store on their cell phones creates a qualitatively different factual context in which to consider the constitutionality of a warrant to search an entire cell phone, compared to the factual context for the warrant issued in this case, where the information sought from the wireless service provider was much more circumscribed. This case therefore does not call for us to consider whether the issuance of a warrant for the search of a suspect’s cell phone itself would be proper if it were based merely on information that more than one person was involved in committing the crime, the suspect was one of those people, and the suspect owned a cell phone. See Commonwealth v. White, 59 N.E.3d 369, 371-72, 376-77 (Mass. 2016) (concluding that those circumstances were insufficient to support a determination of probable cause); see also United States v. Ramirez, 180 F. Supp. 3d 491, 495 (W.D. Ky. 2016) (same); Stevenson v. State, 168 A.3d 967, 981-86 (Md. 2017) (Adkins, J., concurring) (same). And we express no view on that issue today.