USA v. BALL

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
v. 	) 	No. 2:25-cr-00059-LEW
)
BENAJMIN BALL 	)
)
Defendant 	)
ORDER ON MOTION TO SUPPRESS
This matter is before the Court on Defendant’s Motion to Suppress (ECF No. 37),
in which Defendant seeks the exclusion of evidence obtained from his cell phone.
Following an evidentiary hearing and after careful consideration of submissions by
Defendant and the Government,1 Defendant’s Motion is DENIED.
BACKGROUND
On February 6, 2024, Officer Samuel Bennett of the Sanford Police Department
performed a traffic stop on a vehicle in which Defendant was a passenger.2 	During this
stop, Defendant was placed under arrest and his phone was seized.3 On February 9, 2024,
Det. Sgt. Kyle Kassa applied for a warrant to search the phone (Gov’t Ex. 1). The warrant
was granted that day, to be returned within ten days. 	When Det. Sgt. Kassa brought the
1 In addition to the initial briefing on Defendant’s Motion, I invited the parties to submit supplemental
briefing after the hearing. See Order at ECF No. 48; Def. Supp. Mem. (ECF No. 51); Gov’t Supp. Resp.
(ECF No. 52).
2 These facts are drawn from the parties’ submissions and from testimony heard at the hearing on
Defendant’s Motion.
3 Defendant’s Motion does not challenge the constitutionality of the traffic stop, the arrest, or the seizure of
the cell phone.
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phone to a forensic examiner to be extracted, however, he learned that the forensic
extraction could not be completed because the device was secured with an unknown
passcode. He therefore returned the warrant unexecuted.
For the next several weeks, the phone remained in evidence with the Sanford Police
Department, stored in a double-locked Faraday box. Det. Sgt. Kassa testified that during
those weeks, he continued to pursue other avenues to develop the investigation, which
ultimately renewed his interest in searching the phone.4 On April 25, 2024, Det. Sgt. Kassa
accessed the phone to attempt to unlock it by entering a six-digit passcode corresponding
to Defendant’s date of birth. 	When this passcode successfully unlocked the device, Det.
Sgt. Kassa immediately locked it again and applied for a new search warrant. The warrant
was granted that same day.
Det. Sgt. Kassa’s affidavit for the second warrant application (Gov’t Ex. 2) included
the following information to support a finding of probable cause:
• 	Descriptions of four drive-by-shooting incidents that took place in Lebanon,
Acton, and Wells, Maine, between January 4, 2024, and February 6, 2024;
• 	That residents of two of the homes where these shootings took place were close
friends, and both owed money to the same individual (“Jason LNU” or Jason
Fernald) for crack cocaine they had acquired from him;
• 	That Benjamin Ball was a passenger in Jason Fernald’s vehicle when it was
stopped by Sanford Police, and was arrested after cocaine was discovered in his
possession;
4 Specifically, Det. Sgt. Kassa testified that after reviewing a recorded phone call the Defendant made from
jail, in which he provided his email password, he believed the Defendant’s phone passcode might be a
similarly easy-to-guess numerical combination. 	Det. Sgt. Kassa also testified that this review of call
recordings made him aware of additional evidence he believed would be found on the phone.
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• 	That when Ball was taken into custody, his phone was secured in the Sanford
Police Department in a locked Faraday box;
• 	Verizon records that indicated Benjamin Ball’s most frequent contact was Jason
Fernald, and that the two exchanged approximately 200 voice calls, 550 text
messages, and 36 voicemails between December 1, 2023, and February 5, 2024;
• 	Verizon records that indicated Benjamin Ball and Jason Fernald exchanged 31
text messages over an approximately 15-minute period on January 3, 2024, that
concluded approximately 15 minutes before a shooting in Lebanon, Maine;
• 	Verizon records that indicated that Benjamin Ball and Jason Fernald exchanged
three texts approximately 45 minutes before a shooting in Lebanon, Maine, that
took place on January 28, 2024, and that, approximately two minutes after this
event, Ball sent two more text messages and placed a phone call to Fernald;
• 	Messages from Jason Fernald’s Facebook account from an exchange between
him and Ball on January 2, 2024, in which Fernald complained about a debt
owed by the resident of the home involved in the January 4 shooting incident
and asked for Ball’s assistance (in response to which, Ball offered to “send some
shells threw the car”);
• 	Confirmation from a confidential source (whose identity was known to Det. Sgt.
Kassa, and who he interviewed on several occasions) that Ball conducted the
shooting incidents that took place on January 3, January 28, February 2, and
February 3;
• 	That the confidential source had viewed a video recording of one of the shooting
events, that was recorded and transmitted by Benjamin Ball’s phone, and that
she believed depicted Ball carrying out a shooting; and
• 	More general information from Det. Sgt. Kassa’s training and experience about
the evidence that can be found on cell phones (such as communications with
coconspirators, internet search history, photographs and audio/video recordings,
personal calendars, and location information) and that such evidence “can
remain on the device . . . for indefinite periods of time.”
Gov’t Ex. 2 §§ III.D-E. In addition to this information about the Defendant’s involvement
in criminal activity and the evidence that he expected to find on the Defendant’s phone,
Det. Sgt. Kassa also explained in the affidavit that he had returned the previously issued
warrant unexecuted after determining a passcode was needed for forensic examination of
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the device. 	Id. § III.E.15. 	He also described how, knowing that people commonly use
passcodes “that are easily remembered” and “unique to the user, such as the user’s
birthday,” he entered a six-digit passcode corresponding to the Defendant’s date of birth,
which the phone accepted. Id. § III.E.20.
DISCUSSION
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” 	U.S.
Const. Amend. IV. 	Under most circumstances, the Fourth Amendment’s prohibition
against unreasonable searches requires law enforcement to obtain a warrant based “upon
probable cause” prior to conducting a search of a suspect’s cell phone. Id.; see also Riley
v. California, 573 U.S. 373, 403 (2014). 	Defendant does not directly attack the search
warrant that issued on April 25, 2024, pursuant to which his phone’s contents were
ultimately searched. 	Rather, Defendant argues that his Fourth Amendment rights were
violated before that point, and that those violations require suppression of the evidence
ultimately obtained under that warrant.
Defendant first argues that the probable cause supporting the warrant that issued on
February 9, 2024, had grown stale by April 25, 2024, when Det. Sgt. Kassa conducted a
warrantless search of the cell phone.5 See Mot. at 3. Because Det. Sgt. Kassa had learned
that he could not obtain the evidence that was on the phone without the passcode,
5 I understand the “warrantless search” that Defendant refers to here to be Det. Sgt. Kassa’s attempt to
unlock the phone with a passcode based on the Defendant’s date of birth. The search of the phone’s contents
that followed was pursuant to the second warrant, which Det. Sgt. Kassa obtained that same day.
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Defendant argues, he no longer had probable cause to believe that evidence would be found
on the phone so as to justify the phone’s continued seizure. Mot. at 4.
The probable cause standard “is not a high bar,” requiring “only the kind of fair
probability on which reasonable and prudent people, not legal technicians, act.” 	United
States v. Cortez, 108 F.4th 1, 8 (1st Cir. 2024) (cleaned up). 	This standard requires
probable cause to believe both (1) that “a crime has been committed—the ‘commission’
element,” and (2) that “enumerated evidence of the offense will be found at the place to be
searched—the so-called ‘nexus’ element.” United States v. Gonzalez, 113 F.4th 140, 148
(1st Cir. 2024) (citation omitted). 	There is a temporal component to probable cause, but
all that is required is a “fair probability” that the evidence of crime that law enforcement
expects to find will still be there at the time of the search. Id.; United States v. Tiem Trinh,
665 F.3d 1, 13 (1st Cir. 2011).
There is no reason to believe that the evidence Det. Sgt. Kassa thought he would
find on the cell phone when it was initially seized would not still be there in April. 	The
phone had been securely stored in the Sanford Police Department, and the evidence law
enforcement believed they would find on the device (such as messages, internet search
history, location data, photos and videos) is not the kind that spoils. See United States v.
Cameron, 652 F. Supp. 2d 74, 81 (D. Me. 2009) (“Once the officers obtained the computers
and the discs, ‘any danger that probable cause would cease to exist passed.’”) (citation
omitted). 	Moreover, there is no evidence that during the weeks that followed the failed
first attempt to search the device, anyone made any attempt to retrieve the phone from
police custody. 	Perhaps under different circumstances, continuing to hold a cell phone
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because it may contain evidence that law enforcement has no plan or ability to retrieve
would be sufficiently problematic to warrant suppression. 	See United States v. Christie,
717 F.3d 1156, 1162 (10th Cir. 2013) (Gorsuch, J.) (“What, after all, is ‘reasonable’ about
police seizing an individual’s property on the ground that it potentially contains relevant
evidence and then simply neglecting for months or years to search that property to
determine whether it really does hold relevant evidence for trial or is totally irrelevant to
the investigation and should be returned to its rightful owner?”). Under the totality of these
circumstances, however, I am satisfied that the phone’s continued storage in police custody
did not itself run afoul of the Fourth Amendment.
Separately, Defendant contends that Det. Sgt. Kassa’s unlocking of the phone was
itself a warrantless search, conducted in violation of the Fourth Amendment. See Mot. at
4-5. 	“[A] search occurs whenever the government intrudes upon any place in which a
person has ‘a reasonable expectation of privacy.’” 	United States v. Bain, 874 F.3d 1, 12
(1st Cir. 2017) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J.,
concurring)). 	A search also occurs “when the Government obtains information by
physically intruding on persons, houses, papers, or effects,” under common-law trespass
principles. Id. (quoting Florida v. Jardines, 569 U.S. 1, 4 (2013)) (cleaned up). Defendant
appeals to the second of these standards.
The question of whether merely unlocking a cell phone amounts to a “search” within
the meaning of the Fourth Amendment appears to be unsettled.6 	The Government,
6 Perhaps seeking to avoid this thorny issue, the Government initially argued that Det. Sgt. Kassa’s
manipulation of the device was a reasonable continuation of the original search, pointing to out-of-circuit
precedent holding that a search warrant may authorize more than one entry into the premises to be searched,
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however, has identified a handful of district court decisions arising from comparable facts.
Those courts have held that even if confirming a passcode amounts to a search, the
defendant is not entitled to relief when law enforcement “obtain[s] no information from
[its] actions other than confirmation that the cell phone was capable of being unlocked with
this passcode.” 	United States v. Hearst, No. 1:18-cr-00054, 2022 WL 16832834, at *22
(N.D. Ga. Mar. 10, 2022), rep. & rec. adopted, 2022 WL 8163946 (N.D. Ga. Oct. 14,
2022); see also United States v. Phillips, No. 25-cr-20029, 2026 WL 328381, at *7-8 (E.D.
Mich. Feb. 8, 2026) (not deciding “whether entering a passcode of a locked phone
constitutes an unlawful search” where “there are no fruits to suppress because the agents
did not search the digital contents of the phone or obtain any evidence after checking if the
passcode unlocked the phone”). One other decision cited by the Government goes a step
further, holding that “simply using a passcode to unlock Defendant’s cellphone without
exploring the contents of the phone does not constitute a search under the Fourth
Amendment.” United States v. Jackson, No. 21-cr-00051, 2021 WL 4892223, *2 (D. Minn.
Oct. 20, 2021).
provided that (1) the subsequent entry is in fact a continuation of the original search (and not a new search)
and (2) the subsequent entry and continuation of the search were reasonable under the totality of the
circumstances. See, e.g., United States v. Keszthelyi, 308 F.3d 557, 568-69 (6th Cir. 2002). Let’s set to the
side, for the moment, that the Government has not pointed to any case from any court within this Circuit
applying this rule. I still do not see how a “subsequent entry” that took place more than two months later
could be fairly characterized as a continuation of the original search. See, e.g., Keszthelyi, 308 F.3d at 563
(describing a subsequent entry the morning after a search warrant was first executed and explaining that
when officers returned to the property two days later, they obtained a new warrant). 	Moreover, any
continued search would still have to be authorized by the original search warrant—indeed, as I understand
it, claiming the authority of the original warrant is the whole point of the “reasonable continuation”
argument. That warrant by its own terms expired approximately nine weeks earlier.
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In Bain, the First Circuit held that inserting a key into the front door of a home
without a warrant amounted to an unconstitutional search, applying the trespass principles
articulated in Jardines. 874 F.3d at 14-16. In so holding, the Court distinguished previous
cases “concern[ing] the use of keys on storage container padlocks,” observing that
“[s]torage container padlocks are ‘effects’ under the Fourth Amendment,” and that “[t]he
Fourth Amendment protects effects markedly less than it protects houses.” 	Id. at 15. 	I
think it is reasonably clear that a cell phone is an effect, but also one that has been given
its own special status under the law, in light of the “highly personal nature” of the
information it contains. 	United States v. Wurie, 728 F.3d 1, 8-9 (1st Cir. 2013); see also
Riley, 573 U.S. at 393-97 (recognizing that “a cell phone search would typically expose to
the government far more than the most exhaustive search of house”). 	I therefore cannot
comfortably conclude that a cell phone “is most aptly treated as a mobile storage locker,”
as opposed to a home, for present purposes.7 United States v. Beriguete-Hernandez, No.
2:24-cr-056, 2025 WL 1796032, at *6 (D. Me. June 30, 2025) (citing United States v.
Lyons, 898 F.2d 210, 212 (1st Cir. 1990)) (using a key to ascertain vehicle ownership was
not a search). Still, this acknowledgment of the special privacy considerations applicable
to cell phones does not necessarily compel the conclusion that a cell phone must be treated
like a home under Jardines, such that the mere placement of a finger on the touch screen
7 Indeed, the Hearst Court, applying Bain and similar cases, concluded that it could not. 	2022 WL
16832834, at *22-23 (“Costa’s warrantlessly checking the phone to see if the passcode would unlock it,
even if he conducted no further intrusion, was in fact a search, just as inserting a key into a door lock or
using a key fob to unlock a door constitutes a search. . . . Jardines supports a finding that using a passcode
to open a phone constitutes a search since it is a physical trespass into what otherwise would be private
content on the phone.”).
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implicates the Fourth Amendment, as Defendant urges. 	As the Supreme Court has
repeatedly 	admonished, 	“the 	ultimate 	touchstone 	of 	the 	Fourth 	Amendment 	is
‘reasonableness,’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006), and I harbor
some serious doubts that it would be reasonable to require law enforcement to run to the
magistrate for a search warrant whenever the need arises to confirm that a suspected
passcode will in fact afford access to a device. In light of Riley, Wurie, and Bain, however,
I am inclined to agree that “using Defendant’s passcode to access his mobile telephone is
not a preferred practice.” Jackson, 2021 WL 4892223, *2.
Even assuming entering the passcode did amount to an unreasonable search,
however, the Government has shown that the search that actually uncovered what
Defendant seeks to suppress here was conducted in good faith reliance upon a validly
issued warrant.8 In Bain, as discussed above, the First Circuit held for the first time that
inserting a key into the door of a home amounted to a search, distinguishing previous cases
in which similar conduct was held to not be a search. 874 F.3d at 14-16. But it ultimately
declined to suppress evidence seized during the subsequent search of the home, which was
authorized by a subsequent warrant. 	Id. at 19-24. 	The First Circuit recognized that this
situation was one “not expressly addressed in Leon: the warrant affidavit forthrightly
discloses the facts that establish probable cause, but one of the facts essential to establishing
8 In its initial response, the Government pointed instead to United States v. Davis, 564 U.S. 229 (2011), for
the proposition that the exclusionary rule should only apply as a “last resort,” and not to cases where “the
deterrence benefits of suppression” do not “outweigh its heavy costs.” Gov’t Resp. at 7 (quoting Davis,
564 U.S. at 237). But “the [Davis] exception is available only where the police rely on precedent that is
‘clear and well-settled.’” Bain, 874 F.3d at 20 (quoting United States v. Sparks, 711 F.3d 58, 64 (1st Cir.
2013)). There is no “clear and well-settled” precedent authorizing the conduct at issue here. Id.
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probable cause (the result of the key turn) was obtained as a result of an unconstitutional
search.”9 Id. at 21. The Court nonetheless concluded that “good faith reliance on a warrant
procured 	and 	issued 	in 	good 	faith 	saves 	the 	fruits 	of 	a 	warranted 	search 	from
suppression”—even “a warrant that is itself tainted by the results of an unconstitutional
search.” Id. at 22 (citing United States v. Diehl, 276 F.3d 32 (1st Cir. 2002)); accord United
States v. Hopkins, 824 F.3d 726, 733-34 (8th Cir. 2016); United States v. Holley, 831 F.3d
322, 326-27 (5th Cir. 2016); United States v. McClain, 444 F.3d 556, 566 (6th Cir. 2005).
And even where the violative “invasion” was the result of the officer’s “misapprehension
of law,” the good-faith exception was still available if that misapprehension “was ‘close
enough to the line of validity to make the officers’ belief in the validity of the warrant
objectively reasonable.’” 	Bain, 874 F.3d at 22 (quoting Hopkins, 824 F.3d at 733); see
also Holley, 831 F.3d at 326-27.
Here, as was the case in Bain, Det. Sgt. Kassa obtained a search warrant before
conducting any additional examination of the phone or its contents (beyond confirming the
passcode), as he understood the Fourth Amendment to require. In the warrant application,
he forthrightly conveyed the steps he had taken to confirm the phone’s passcode and set
9 Under United States v. Leon, “evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant” is not subject to the exclusionary rule, although there are circumstances under
which law enforcement “will have no reasonable grounds for believing that the warrant was properly
issued,” in which case suppression remains appropriate. 468 U.S. 897, 922-23 (1984). These include: (1)
cases where the issuing judge was misled by the affiant, see id. at 923 (citing Franks v. Delaware, 438 U.S.
154 (1978)); (2) cases where the issuing judge “wholly abandoned his judicial role,” id. (citing Lo-Ji Sales,
Inc. v. New York, 442 U.S. 319 (1979)); (3) cases where the affidavit is “so lacking in indicia of probable
cause as to render official belief in its existence unreasonable,” id. (quoting Brown v. Illinois, 422 U.S. 590,
610-11 (1975)); or (4) cases where the warrant is “so facially deficient—i.e., in failing to particularize the
place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to
be valid,” id. See also United States v. Sheehan, 70 F.4th 36, 51 (1st Cir. 2023).
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out the facts that gave him probable cause to believe the phone contained evidence of
criminal activity—facts developed entirely apart from the Fourth Amendment violation
Defendant claims here. Following Riley, it is quite clear that examination of a cell phone’s
contents must be authorized by a search warrant to comport with the Fourth Amendment.
But Det. Sgt. Kassa did not undertake a warrantless search of the phone’s contents. 	The
action he did take without a warrant was much less clearly unconstitutional—if it was
unconstitutional at all. Under available precedent, “reasonable officers informed about the
law” could have easily concluded as Det. Sgt. Kassa did: that testing a potential passcode
on the locked phone did not amount to a search for which a warrant would be required.10
Id. at 23. Under these circumstances, I am persuaded that the ultimate search of the phone’s
contents was conducted in good faith reliance upon the subsequently issued warrant. Cf.
Bain, 874 F.3d at 21-23.
The purpose of the exclusionary rule is to incentivize law enforcement officers to
bring their conduct into step with the requirements of the Fourth Amendment by punishing
conduct that does not. 	See United States v. Cruz-Mercedes, 945 F.3d 569, 576 (1st Cir.
2019). As a result, “the Supreme Court has made clear that suppression is improper ‘when
law enforcement officers have acted in objective good faith or their transgressions have
been minor.’” 	United States v. Medina, 125 F.4th 310, 315 (1st Cir. 2025); see also
10 Defendant urges the opposite: that “[t]he issues that control what standards apply to the search of a
cellular telephone had been clearly established for years” and that “Detective Sergeant Kassa’s search was
simply not close enough to the line”—that is to say, so far past the line—“to trigger the exclusionary rule.”
Def. Supp. Mem. at 8. Again, while this may be true with respect to searches of a phone’s contents, it is
not so with respect to the warrantless “search” Det. Sgt. Kassa undertook here. See Phillips, 2026 WL
328381, *7 (“There is no clear answer” to the question of “whether merely entering a passcode of a locked
phone constitutes an unlawful search.”). Defendant points to no caselaw that indicates otherwise.
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Gonzalez, 113 F.4th at 149 (“[W]hen the police act with an objectively reasonable good-
faith belief that their conduct is lawful . . . the deterrence rationale loses much of its
force.”). Here, after confirming his suspicion about what the Defendant’s passcode might
be, Det. Sgt. Kassa applied for a warrant to search the phone’s contents. 	This course of
conduct simply does not strike me as “sufficiently culpable that such deterrence is worth
the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 702 (2009).
Suppressing the fruits of the warrant-authorized search for a transgression as minor as the
one alleged here—if it was a transgression at all, again a point very much in doubt—is
stronger medicine than these circumstances call for.
CONCLUSION
For these reasons, Defendant’s Motion to Suppress (ECF No. 37) is DENIED.
S O O RDERED .
Dated this 7th day of April, 2026.
/s/ Lance E. Walker
Chief U.S. District Judge
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