State of Maine v. David W. Marble Jr.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 157Docket: 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 of two
counts of intentional or knowing murder, 17-A M.R.S. §§ 201(1)(A) (2018),
1158-A(1)(B) (2015),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 warrant 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1 Title 17-A M.R.S. § 1158-A has since been repealed and replaced.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) (2015), 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 26, 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 phone 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 murders, the male victim was supposed
to collect money from another drug dealer and bring it to Marble but he did not
3
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
number. Just hours before the murders, the male victim and some friends broke
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 CSLI. After a
3 In addition to 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 hearing5 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] Two weeks later, the 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 the
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 killed 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 showing 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
imprisonment for the murder of the female victim and a concurrent term of
seventy-five 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
[¶10] 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 “review 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,
¶ 11, 916 A.2d 977. Our inquiry is limited to the question of “whether there
was a substantial 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
[¶11] Since 2013, in Maine, law enforcement officers seeking
information about the location of an electronic device like a cell phone have
been required to obtain a warrant. 16 M.R.S. § 648 (2018).6 Recently, 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 2217. 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 there 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 not 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.
[¶12] “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. Thus, an 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, ¶¶ 23-26, --- A.3d ---.
[¶13] 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 constitute
8
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 over 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 money 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, 2013 ME 106, ¶ 10, 82 A.3d
820.
The entry is:
Judgment affirmed.
8We 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,
PLLC, 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 County Unified Criminal Docket docket number CR-2017-2176
FOR CLERK REFERENCE ONLY