Pair accused of murder in Bangor triple homicide case want cellphone records to be suppressed

Posted Jan. 31, 2014, at 7:15 p.m.
Last modified Feb. 01, 2014, at 8:26 a.m.
Nicholas Sexton
Bangor Police Department
Nicholas Sexton
Randall Daluz
Randall Daluz

BANGOR, Maine — Attorneys for t wo men accused of murder in a 2012 triple homicide have asked that cellphone records obtained by police during the investigation be ruled inadmissible as evidence against the accused men.

Nicholas J. Sexton, 32, of Warwick, R.I., and Randall “Ricky” Daluz, 35, of Brockton, Mass., have pleaded not guilty to three counts of murder and one count of arson in the deaths of Daniel T. Borders, 26, of Hermon; Nicolle A. Lugdon, 24, of Eddington; and Lucas A. Tuscano, 28, of Bradford.

The three bodies were found burned beyond recognition in a white Pontiac sedan with Rhode Island plates that was discovered on fire early Aug. 13, 2012, in the parking lot of Automatic Distributors, located at 22 Target Industrial Circle in Bangor. The car had been rented by Sexton.

Sexton and Daluz sat Friday at separate defense tables at the Penobscot Judicial Center facing Superior Court Justice William Anderson, who also is in the process of deciding whether the two will be tried together or in separate trials.

The attorneys for Sexton and Daluz are asking for the phone records to be thrown out. Bangor attorneys Hunter Tzovarras and Jeffrey Silverstein are representing Daluz and say the state should have gotten a warrant to obtain the cellphone records under the Fourth Amendment.

Defense attorney Jeffrey Toothaker of Ellsworth and Bangor attorney David Bate, who are representing Sexton, say the cellphone records are inadmissible because the request to obtain them was not done in a timely fashion under the law.

“The records that we obtained in August 2012 are governed by the Stored Communications Act and are not covered by the Fourth Amendment,” Assistant Attorney General Lisa Marchese, who is prosecuting the case along with Assistant Attorney General Deb Cashman, told the judge.

The Stored Communications Act covers rules for disclosure of electronic data from Internet service providers. A court order, not a probable-cause warrant, is all that is needed to acquire cellphone location information when there are exigent circumstances, the act states.

Tzovarras said the Fourth Amendment, which guards against unlawful search and seizure, does apply, since there were no emergency circumstances when the Stored Communications Act was used to obtain the cellphone records.

“Our position is … they should have gotten a warrant for the cellphone records,” Daluz’ attorney said.

The judge gave the defense attorneys two weeks to file written briefs in the motions, said Toothaker. The Sexton defense team has also asked that statements made by their client be suppressed, he said.

“We gave him a copy of the transcripts and the paper statements,” Toothaker said.

Anderson, who also spoke to the attorneys and prosecutors in his chambers about whether to separate the cases, made no decisions on Friday, Toothaker said.

Investigators have described the crimes as a drug deal gone bad.

Cashman spent Friday morning questioning Bangor police Detective Joel Nadeau, who wrote the affidavit filed in the case that states, among other things, that Borders and Tuscano were killed first in front of Lugdon; that the murder weapon was recovered seven months after the killings by a citizen walking along the banks of the Penobscot River; and that the motive for the slayings was Borders’ alleged transactions with a drug dealer who was a rival of Sexton’s.

Cashman walked Nadeau through many of the steps taken by Bangor and Maine State Police investigators to find Sexton and Daluz and link them to the crimes.

The defense teams questioned Nadeau in the afternoon session.

BDN reporter Judy Harrison contributed to this story.

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