State of Maine v. Christopher W. Roy

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 16
Docket: And-18-55
Argued: September 13, 2018
Decided: January 29, 2019

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


STATE OF MAINE

v.

CHRISTOPHER W. ROY


HUMPHREY, J.

[¶1] In this appeal, we address the effect of technology on the

constitutional balance between the particularity and timeliness requirements

of a search warrant and the ever-expanding digital space into which that search

may reach.

[¶2] Christopher W. Roy appeals from a judgment of conviction for three

counts of possession of sexually explicit material of a minor under age twelve

(Class C), 17-A M.R.S. § 284(1)(C) (2017), entered in the trial court

(Androscoggin County, MG Kennedy, J.) after Roy pleaded guilty conditioned on

his opportunity to appeal the denial of his motion to suppress. M.R.U. Crim. P.

11(a)(2). We affirm the judgment.
2

I. BACKGROUND

[¶3] Viewing the evidence in the light most favorable to the court’s order

denying the motion to suppress, the record supports the following facts. See

State v. Sasso, 2016 ME 95, ¶ 2, 143 A.3d 124. On August 18, 2016, a detective

with the Maine State Police Computer Crimes Unit used a file-sharing network

to download a file of interest in child pornography investigations. The detective

determined that this file was made available by a device connected to a certain

IP address.1 The detective later viewed the file, which included a video of a

young girl, approximately three to five years of age, unclothed and being

sexually abused by an adult.

[¶4] The detective consulted with the United States Department of

Homeland Security and learned that the IP address was registered to Time

Warner Cable, a nationwide internet service provider. On August 22, 2016,

Time Warner informed the detective that Roy was the subscriber of the account

associated with that IP address when the video file was downloaded and

1 An IP address is a “unique string of numbers . . . that identifies each computer using the Internet

Protocol to communicate over a network.” IP Address, New Oxford American Dictionary (3d ed.
2010). According to Techopedia.com, the IP address is a logical numeric address that is assigned to
and identifies every computer or other device that connects to any internet-based communications
network and is the “core component on which the networking architecture is built; no network exists
without it.” Internet Protocol Address, Techopedia, https://www.techopedia.com/definition/2435/
internet-protocol-address-ip-address (last visited Jan. 24, 2019). For additional discussion of IP
addresses, see United States v. Vosburgh, 602 F.3d 512, 527 (3d Cir. 2010); United States v. Forrester,
512 F.3d 500, 510 n.5 (9th Cir. 2008).
3

provided the detective with the account’s service address in Maine. The

address matched that of Roy on file with the Maine Bureau of Motor Vehicles.

[¶5] Based on this information, the detective prepared an affidavit and

request for a search warrant. On August 31, 2016—thirteen days after learning

that the downloaded file appeared on the file-sharing network by way of Roy’s

IP address—the detective sought and the court issued a warrant authorizing

(a) the search of Roy’s residence and property, outbuildings, vehicles, and

persons on the property at the time the warrant was to be executed, and (b) in

relevant part, the seizure of the following items believed to “constitute

instrumentalities” of the crimes of illegal possession and dissemination of

sexually explicit depictions of minors, 17-A M.R.S. §§ 283, 284 (2017):

1. Images of child pornography, in any form;
2. Records or images in any form pertaining to the
manufacture, possession or receipt of child pornography;
3. Records or images in any form relating to the identity of the
minors depicted in any seized images;
4. Records or images in any form reflecting personal contact
with any of the minors depicted in any seized images;
5. Records or images in any form reflecting access to, or
payment for access to, websites containing or relating to
child pornography;
6. Computers, portable electronic devices and digital storage
media of any kind . . . . [A]ny electronic system or device
capable of storing and/or processing data in digital form,
4

including: central processing units; laptops or notebook
computers; personal digital assistants; wireless
communication devices such as telephone paging devices,
beepers, and cellular telephones[;] peripheral input/output
[devices] such as keyboards, printers, scanners, plotters,
monitors, and drives intended for remova[ble] media;
related communications devices such as modem[s], cables,
and connections; storage media such as hard disk drives,
floppy disks, thumb drive[s], magnetic tapes, and memory
chips; and security devices; [and]
7. Evidence in any form suggesting a sexual interest in minors
and their activities. These items are to include collections of
photographs or magazines containing images of children
[and/or] adolescents . . . .
[¶6] The next day, September 1, 2016, the police executed the search

warrant and seized nearly 600 sexually explicit images of children that were

stored on a cellular telephone and a microSD card (a small portable digital

media storage device). The ages of the children depicted in the images seized

ranged from under one year to nine years.

[¶7] In February 2017, a grand jury returned an indictment charging Roy

with eight counts of possession of sexually explicit material of a minor under

the age of twelve. See 17-A M.R.S. § 284(1)(C). Roy moved to suppress the

evidence seized pursuant to the search warrant. After holding a hearing, on

December 7, 2017, the court (Androscoggin County, MG Kennedy, J.) denied his

motion.
5

[¶8] In February 2018, Roy pleaded guilty, conditionally, to three counts

of the indictment and the State dismissed the remaining five counts. Roy timely

appealed.

II. DISCUSSION

[¶9] Roy argues that the court erred by not suppressing the seized

evidence because the search warrant was stale, failed to describe items

presumptively protected by the First Amendment with “scrupulous

exactitude,” and otherwise failed to describe the places to be searched and the

items to be seized with sufficient particularity.

A. Staleness

[¶10] Roy contends that the court erred by denying his motion to

suppress because the circumstances described in the affidavit supporting

probable cause to issue a search warrant—information that the downloaded

video file was from an IP address associated with Roy’s computer—were

thirteen days old when the warrant was issued, rendering the foundation for

the warrant stale. As a result, he argues, by the time the warrant was requested

and issued, the affidavit provided no basis to conclude that the downloaded file

was still in the place associated with Roy’s IP address.
6

[¶11] When reviewing the denial of a motion to suppress on grounds that

the information relied on for issuing a search warrant was stale, we review

directly the finding of probable cause by the issuing judge, giving great

deference to that determination, and we must draw all reasonable inferences

that support the decision to issue the warrant. State v. Wright, 2006 ME 13, ¶ 8,

890 A.2d 703 (quotation marks omitted).

[¶12] “Probable cause exists when, based on the totality of the

circumstances, there is a fair probability that contraband or evidence of a crime

will be found in a particular place.” State v. Samson, 2007 ME 33, ¶ 12,

916 A.2d 977 (quotation marks omitted). To meet this standard, the affidavit

supporting the warrant must set forth some “nexus” between the information

upon which the warrant relies and the location of the property to be seized.

Id. ¶ 15. Whether probable cause still exists at the time a warrant is requested

is determined not by the mere passage of time between observation of the

evidence and application for the warrant but by the consideration of the unique

facts and circumstances of the case at hand. See State v. Crowley, 1998 ME 187,

¶ 5, 714 A.2d 834 (time between circumstances and request for search

warrant); State v. Willey, 363 A.2d 739, 742 (Me. 1976) (time between

circumstances and issuance of search warrant). That timeframe, Roy
7

acknowledges, does not lend itself to a per se maximum period of time within

which a search warrant must be sought. See Wright, 2006 ME 13, ¶ 9 & n.3,

890 A.2d 703.

[¶13] In Wright, we were presented with a similar challenge to the

timeliness of a warrant in a child pornography investigation where at least

eighty days had elapsed between the occurrence establishing probable cause

and the issuance of the warrant. Id. ¶ 7. The affiant cited the opinions of experts

in child pornography investigations to support his assertion that those who

collect child pornography are “likely to retain the images” for long periods,

sometimes “indefinitely,” rather than disposing of them. Id. ¶¶ 7, 11. We held

that in the context of a child pornography investigation, the passage of eighty

days between the observation of a crime and the application for a warrant is

not too long to render the information stale because of the demonstrated

propensity of its consumers to retain the images for long periods of time.

Id. ¶ 11; see also United States v. Seiver, 692 F.3d 774, 778 (7th Cir. 2012)

(noting that a central inquiry into staleness in a child pornography

investigation requires a “realistic understanding of modern computer

technology and the usual behavior of its users”). Other courts have held that,

in the context of a child pornography investigation, much longer periods of
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time—even years—may pass without the information relied on for a warrant

becoming stale.2

[¶14] In this case, the detective’s affidavit describes practices by which

electronic forms of child pornography are commonly received, collected, and

retained for considerable lengths of time, and the affidavit outlines the

detective’s training and investigatory experience in child pornography cases.

As in Wright, this detailed information is sufficient to demonstrate that, given

the short time between the download on August 18 and the request for a

warrant on August 31—only thirteen days—and considering the nature of the

contraband at issue, the court had a substantial basis on which to conclude that

the file of interest identified in the affidavit would still be in Roy’s possession

on his computer or accessible by his electronic devices. The information the

court relied on was not stale and the court did not err in so ruling.

2 See, e.g., United States v. Carroll, 750 F.3d 700, 704 (7th Cir. 2014) (five years); United States v.

Frechette, 583 F.3d 374, 378-79 (6th Cir. 2009) (sixteen months); United States v.
Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (three years); United States v. Irving,
452 F.3d 110, 115, 125 (2d Cir. 2006) (two to five years); United States v. Hay, 231 F.3d 630, 636
(9th Cir. 2000) (six months); United States v. Horn, 187 F.3d 781, 786-87 (8th Cir. 1999) (three
months); United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997) (ten months); United States v.
Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 1993) (two to fifteen months); United States v. Coffin,
No. 1:17-cr-00025-JAW, 2018 U.S. Dist. LEXIS 17183, at *2-4, 11-12 (D. Me. Feb. 2, 2018) (one year);
United States v. Albert, 195 F. Supp. 2d 267, 271-72 (D. Mass. 2002) (four to five months).
9

B. Constitutional Adequacy

[¶15] Roy next argues that the search warrant was constitutionally

deficient in that (1) it did not describe the items to be seized with scrupulous

exactitude, resulting in the seizure of material protected by the First

Amendment for the ideas they contained, and (2) it otherwise failed to describe

the places to be searched and the items to be seized with sufficient particularity.

“[A] decision as to the constitutional adequacy of a search warrant is a matter

of law” that we review de novo. State v. Pelletier, 673 A.2d 1327, 1329

(Me. 1996) (footnote omitted).

1. Scrupulous Exactitude

[¶16] The Fourth Amendment requires “the most scrupulous exactitude”

when the First Amendment protects the things to be seized, such as images,

books, or magazines, “and the basis for their seizure is the ideas which they

contain.” Stanford v. Texas, 379 U.S. 476, 485 (1965). “First Amendment rights

and the scrupulous exactitude standard are not implicated, however, when the

materials to be seized are sought as evidence of a crime and not for the ideas

which they contain.” State v. Lehman, 1999 ME 124, ¶ 13, 736 A.2d 256

(emphasis added)(quotation marks omitted); see also United States v. Stelten,

867 F.2d 446, 450-51 (8th Cir. 1989).
10

[¶17] Roy argues that the warrant undermined these constitutional

protections because it did not sufficiently limit the search to illegal items. He

relies on a decision of the Washington Supreme Court invalidating a search

warrant that authorized the seizure of “materials that were legal to possess,

such as adult pornography and photographs that did not depict children

engaged in sexually explicit conduct.” State v. Besola, 359 P.3d 799, 800, 803

(Wash. 2015). The court determined that neither the warrant’s reference to the

child pornography statute nor its alleged application to images “material to the

[child pornography] investigation” was sufficient to constitutionally

circumscribe the scope of its authorization. Id.

[¶18] The warrant here suffers no such deficiency. Based on the affidavit

supporting the application for issuance of a search warrant, the warrant

authorized the seizure of certain items because there was probable cause to

believe they contained evidence of Roy’s illegal possession and dissemination

of sexually explicit depictions of minors, not because of any particular ideas

they might contain. See Lehman, 1999 ME 124, ¶ 14, 736 A.2d 256. The search

warrant’s description of the items to be seized and the purpose for their seizure

did not implicate the heightened “scrupulous exactitude” standard.
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2. Sufficient Particularity

[¶19] Roy also contends that, even if the scrupulous exactitude standard

does not apply, the warrant was overbroad and lacked the particularity

required by the United States and Maine Constitutions because (1) it authorized

an expansive search of all “computers, portable electronic devices and digital

media of any kind” located on any person or at any place on Roy’s property at

the time of the search, and (2) it authorized a search for and seizure of

“collections of photographs or magazines containing images of children and or

adolescents.” “The issue of whether [a] search warrant lacks the required

specificity as to the place and items to be searched is an issue of constitutional

adequacy that we review de novo.” Id. ¶ 7.

[¶20] The Fourth Amendment of the United States Constitution requires

that a search warrant must “particularly describ[e]” the places to be searched

and the things to be seized. U.S. Const. amend. IV. Similarly, Maine’s

Constitution requires that the warrant make a “special designation of the place

to be searched, and the . . . thing to be seized.” Me. Const. art. I, § 5.3 A warrant

3 Article 1, section 5, provides that:

The people shall be secure in their persons, houses, papers and possessions from all
unreasonable searches and seizures; and no warrant to search any place, or seize any
person or thing, shall issue without a special designation of the place to be searched,
12

must describe the property with “such particularity” that the executing officer

can identify the item to be searched or seized “with certainty” and is left with

no discretion as to what is to be taken. Lehman, 1999 ME 124, ¶ 8, 736 A.2d 256

(quotation marks omitted).

a. Description of Devices

[¶21] We have previously considered the particularity requirements of

warrants to search computer files in child pornography investigations. In

Lehman, we held that a warrant was sufficiently particularized when it

authorized the search of “all computer equipment and computer related

equipment” and software that Lehman would have been able to access when he

was alleged to have taken sexually explicit nude photographs of three underage

girls with a digital camera and downloaded those photographs onto a computer

in his home.4 Id. ¶¶ 2-3, 10. We also rejected the argument that the warrant

should have been limited to one particular computer in Lehman’s residence

that was specifically implicated by one of the three photographed girls because

the other two girls stated that the images were downloaded to a computer in

and the person or thing to be seized, nor without probable cause—supported by oath
or affirmation.
4 The evidence included a “detached hard drive in the basement of Lehman’s house.” State v.

Lehman, 1999 ME 124, ¶ 4, 736 A.2d 256.
13

his home, not specifying which computer was used. Id. ¶ 11. We concluded that

the nexus between the evidence sought and the places to be searched—all

computers, computer-related equipment, and software in the home—was “as

specific as the circumstances” of the allegations and “nature of the activity

under investigation permit[ted].” Id. ¶ 10 (quoting Davis v. Gracey,

111 F.3d 1472, 1478 (10th Cir. 1997)).

[¶22] The First Circuit applied similar reasoning when it considered the

particularity of a warrant authorizing the search of “[a]ny and all computer

software and hardware . . . .” United States v. Upham, 168 F.3d 532, 535 (1st Cir.

1999). There, the defendant was alleged to have used a computer in a home to

send and receive files containing child pornography over several months. Id. at

533. The defendant argued that the warrant was too broad in both its

authorization of places to search (computer hardware and software) and in the

scope of the content it was authorized to seize (“any image” of a minor). Id. at

535, 536 n.1. Rejecting both arguments, the court concluded that the scope of

the warrant closely tracked the probable cause determination that a computer

had been used to transmit the images, and thus “the computer and all available

disks” were implicated by that determination. Id. at 535. The court also

concluded that, despite the warrant’s broad authorization, it was sufficiently
14

limited to depictions of minors “engaging in sexually explicit conduct [as

defined by the statute].” Id. Given the basis for the probable cause

determination, the search was “about the narrowest definable search and

seizure reasonably likely to obtain the images” and “not inherently more

intrusive than the physical search of an entire house for a weapon or drugs.” Id.

[¶23] Here, Roy argues that the warrant is unconstitutionally broader

than those in Lehman and Upham because it authorized the seizure of any

“[c]omputers, portable electronic devices and digital storage media of any kind”

located on the property associated with the IP address, on any person on the

property, and in any vehicle on the property. We disagree.

[¶24] The digital world is not a static place; advancements in computer

technology continue to make obtaining and accessing illicit digital files

increasingly easy while making detection more difficult. See, e.g., United

States v. Johnson, 221 F.3d 83, 99 (2d Cir. 2000); United States v. Knowles,

207 F. Supp. 3d 585, 591-92, 604 (D.S.C. 2016); United States v. Cunningham,

680 F. Supp. 2d 844, 856 (N.D. Ohio 2010). Thus, when considering the nature

and circumstances of Roy’s alleged illegal activity, and the increased

sophistication and mobility of devices capable of downloading, storing, and

transmitting child pornography in the years since Lehman and Upham were
15

decided, the warrant’s description of electronic devices that the officers were

authorized to search and seize is not overly broad because of its authorization

to search Roy’s residence, property, and any persons and vehicles on his

property at the time of the search, see Lehman, 1999 ME 124, ¶¶ 10-11,

736 A.2d 256 (acknowledging the inherent mobility of computer equipment),

or because of its authorization to seize various electronic devices and digital

media, see Upham, 168 F.3d at 533, 535 (concluding that the transmission of

images depicting child pornography through the Internet from an account

linked to the defendant established probable cause demonstrating a “sufficient

chance of finding some needles in the computer haystack”).

[¶25] The warrant’s authorization was as specific and limited as the

circumstances would allow and satisfied the constitutional requirement for

particularity.

b. Description of Photographs and Magazines

[¶26] The warrant authorized the police to search for and seize specified

items believed to “constitute instrumentalities” of the crimes of illegal

possession and dissemination of sexually explicit depictions of minors,

including

[e]vidence in any form suggesting a sexual interest in minors and
their activities. These items are to include collections of
16

photographs or magazines containing images of children [and/or]
adolescents . . . .

In spite of this limiting language, Roy argues that the warrant is overbroad

because some photographs and magazines that contain images of minors are

not evidence of criminal conduct. We need not reach this argument.

[¶27] In the abstract, it is correct that possession of some types of

photographs or magazines depicting a minor is not criminal behavior and does

not have evidentiary value. That may not be true, however, when the person in

possession of such facially benign materials is also engaging in criminal conduct

involving child pornography. On this appeal, we need not determine the

location of that line because, even if this aspect of the warrant is overbroad, it

is severable from the remaining portions of the warrant, which, for the reasons

explained above, are lawful. See State v. Simmons, 2016 ME 103, ¶¶ 24-25,

143 A.3d 819. Electronic devices are “readily identifiable and distinguishable

from” photographs and magazines with images of minors, and the information

contained in the warrant about devices is the most significant part of the

presentation. These factors allow legal portions of a warrant to be severed

from any illegal parts of it. See id.

[¶28] Further, and significantly, the inventory of items seized pursuant

to the warrant, see M.R.U. Crim. P. 41(g), which is included in the record
17

presented to the trial court, reveals that although the police seized a number of

devices and electronic parts, they did not seize any photographs or magazines.

This factor also weighs in favor of severance. See Simmons, 2016 ME 103, ¶ 26,

143 A.3d 819; see also United States v. Richards, 659 F.3d 527, 537 (6th Cir.

2011) (stating that an “[i]nfirmity due to overbreadth does not doom the entire

warrant; rather, it requires the suppression of evidence seized pursuant to that

part of the warrant, but does not require the suppression of anything described

in the valid portions of the warrant” (alteration omitted) (emphasis added)

(quotation marks omitted)). Therefore, overbreadth, if any, in this portion of

the warrant is severable from the remaining aspects of the warrant and would

not require suppression of the evidence that was seized, because the seizure

was wholly lawful.

[¶29] The court did not err in denying the motion to suppress.

The entry is:

Judgment affirmed.




18

Tina Heather Nadeau, Esq. (orally), The Law Office of Tina Heather Nadeau,
PLLC, Portland, for appellant Christopher W. Roy

Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty.
(orally), Lewiston, for appellee State of Maine


Androscoggin County Unified Criminal Docket docket number CR-2016-2917
FOR CLERK REFERENCE ONLY