High court says state can use cellphone records in burglary spree case

By Stephen Betts | Aug 29, 2019
Source: File photo This was the scene following a September 2015 at the J.C. Penney store in Rockland, which has since closed.

Portland — The state's high court ruled Thursday, Aug. 29, that prosecutors can use cellphone data taken from two suspects at the pending trial of the final of three men charged with committing a series of break-ins across the state during 2015, including at the former J.C. Penney store in Rockland, Flagship Cinemas and Lincoln's Country Store.

The ruling means the state can proceed in its prosecution of Michael J. Warner II, 41, of Portland, with the evidence it gathered from cellphone data taken from both Warner and a co-defendant.

No hearing date has been set for the case, which is nearly four years old.

Warner is a suspect in 25 nighttime break-ins at businesses across southern and central Maine. Police estimated that the losses totaled more than $200,000.

Warner was sentenced in January in Cumberland County to 40 months, time he had already served, on a violation of probation from an earlier felony theft case. The standard for proving a probation violation is far less to convict someone of a new crime.

Warner had been held in jail from October 2015 until March 2019, when a judge lowered bail.

Charles R. York, 41, of Portland, was sentenced in April to 40 months with time served for violating a condition of release for contacting a witness while he was in jail. Dozens of burglary charges were dismissed as part of a plea deal.

Taylor Shultz, 38, of Limerick, pleaded guilty June 22, 2018, in Cumberland County Superior Court in Portland to three counts of burglary in connection with some of the crimes. His sentencing was awaiting the conclusion of the cases involving York and Warner.

The state high court unanimously ruled in Aug. 29 that there was probable cause to obtain limited data from Warner's cellphone. The court also ruled that Warner did not have standing before the court to challenge police obtaining information from Shultz's cellphone.

The defense attorneys in the case challenged the search warrants in September 2016 and hearings were held later that year and early in 2017.

A Superior Court judge ruled in March 2018 that the affidavits were flawed because they did not show a clear nexus between the crimes and the data sought from the cellphones. She agreed with the defense request to prohibit information from the phones from being used at any future trial.

The District Attorney's Office appealed that ruling and a hearing was held in January 2019 before the Maine Supreme Judicial Court.

The charges against Warner are connected to burglaries at J.C. Penney in Rockland Sept. 3, 2015, in which more than $10,000 worth of merchandise was stolen; Townline Video Plus in Warren Aug. 24, 2015, in which more than $10,000 in goods was reportedly taken; Flagship Cinema in Thomaston Aug. 31, 2015, in which more than $1,000 was taken; and Lincoln's Country Store in Warren May 24, 2015, where more than $1,000 was stolen.

Warner is is also charged with 15 counts out of Cumberland County and six counts out of Kennebec County. Those break-ins occurred at Wescott & Sons tractor in Gorham, Tobey's General Store in China, the American Legion in Augusta, the Shop n' Save in Gray, Dunkin Donuts in Scarborough, the Clam Bake restaurant in Scarborough and Twin's Country Store in Augusta.

An affidavit filed by police to arrest the three in 2015 stated that the men were suspected in up to 25 nighttime business break-ins around the region. After their arrest, police said multiple searches were conducted and stolen property and drugs were recovered. More than 80 items of evidence were seized, according to police. The total value of the items stolen and the damage to the businesses exceeds $200,000.

The case started to break when the Kennebec County Sheriff’s Office responded to a July 30, 2015, burglary and theft at Tobey’s Grocery in China, according to the affidavit.

Video surveillance from the store showed two men walking from a park-and-ride parking lot next to the store and breaking into the grocery. The two were wearing camouflage masks and hats. In the video, after the pair leave, a dark-colored four-door Volkswagen sedan is seen driving through the parking lot.

The Maine State Police were called in because of similar commercial burglaries in which phone and cable lines were cut before the perpetrators entered the businesses.

Later that day, police were informed that an employee of a Cumberland Farms store in Brunswick had found a blue money bag in the store’s dumpster with checks made out to Tobey’s Grocery.

Surveillance video from the Cumberland Farms showed a Volkswagen sedan pulling into the parking lot, the driver getting out, removing items from the trunk and walking toward the dumpster. The video then showed him returning to the car without anything in his hands, the police affidavit states.

One of three individuals also captured on video entering the store at that time was recognized by state police as Warner.

Because Warner had lived in Biddeford, state police sent photographs of the three to Biddeford police. That department was able to identify Shultz from the photos, according to the affidavit. York also was later identified by police from the video.

A check of the Maine Department of Motor Vehicles found that Warner owned a dark-colored four-door Volkswagen Passat that matched the vehicle seen in the videos from China and Brunswick.

Police obtained a search warrant for Warner’s and Shultz’s cellphone records and found that Shultz’s phone had gone from Biddeford to near Tobey’s Grocery in China at the time of the burglary. The phone was then tracked to the Cumberland Farms store in Brunswick at the time the three men were seen on video.

The case against Warner is being prosecuted by Cumberland County Assistant District Attorney Carlos Diaz.

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