MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2018	ME	142

Docket: Aro-18-25

Argued: September	13,	2018

Decided: October	18,	2018

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

STATE	OF	MAINE

v.

DENNIS	F.	WINCHESTER

MEAD,	J.

[¶1]	 	 Dennis	 Winchester appeals	 from orders of	 the	 trial	 court

(Aroostook County,	Hunter,	J.) denying his	motions	to	suppress	evidence	that	

was	seized	by	the	Van	Buren	Police	Department	(VBPD)	and	Maine	State	Police	

(MSP)	 and	 then	 returned	 to	 the	 individuals	 who	 reported	 the	 items	 stolen.	

M.R. Crim. P. 41,	41A.

1 Winchester	contends that (1)	the	State’s	alleged	failure	

to	preserve	exculpatory	evidence	denied	him	a	fair	trial	in	violation	of	his	due	

process	rights	and	(2)	two	search	warrants	failed	to	designate	all	of	the	items	

 *

		Justice	Hjelm	sat	at	oral	argument	but	did	not	participate	in	the	development	of	the	opinion.

1 Because	Winchester’s	indictments	were	returned between	July	2014	and	March	2015—before	

the	July	1,	2015, effective	date	of	the	Maine	Rules	of	Unified	Criminal	Procedure	in	Aroostook	County,	

see M.R.U.	Crim.	P.	1(e)(3)—the	Maine	Rules	of	Criminal	Procedure	apply	to	this	case.
2

to	 be	 seized	 with	 adequate	 particularity,	 making	 the	 warrants	

unconstitutionally	vague.		We	discern	no	error	and	affirm.

I.		FACTS

[¶2]	 	“Viewing	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 motion	

court’s	 order[s],	 the	 record	 supports	 the	 following	 facts.” State	 v.	 Marquis,	

2018 ME	39,	¶	2,	181	A.3d	684 (citation	 omitted).	 In	early	November 2014,	

VBPD received	two	separate	complaints of	stolen	items.		In	the	first,	carpentry	

tools	 were	 reported	 stolen, and	 Winchester’s	 vehicle	 was	 identified	 by	 an	

eyewitness	and	by	security	camera	footage	as	being	at	the	location	of	the	theft	

as	 it	 was	 taking	 place.	 	 In	 response,	 VBPD	 obtained	 a	 warrant	 to	 search	

Winchester’s	 and	 his	 girlfriend’s	 residence,	 vehicles,	 campers,	 and	 storage	

sheds; and	 to	 seize staging, bullets	 for	 a	 hammer	 drill, batteries, and	 eight	

power	tools.		The	warrant thoroughly	described	each	item	to	be	seized	using	

characteristics	 like	 type,	 manufacturer,	 color, dimensions, whether	 the	

equipment	was	corded	or	cordless, and any	markings	of	the	owner’s	initials.

[¶3]	 	With	 respect	 to	 the	 second	 complaint,	truck	 tires	 and	 rims	were	

reported	 stolen	 and	 were	 observed	 on	 Winchester’s	 vehicle.	 	 Because	 this	

incident occurred	outside	of	VBPD’s	jurisdiction,	VBPD	relayed	this complaint

to	MSP.
3

[¶4]	 	 Two	 days	 after	 the	 issuance	 of	 VBPD’s	 warrant,	 VBPD	 and	 MSP	

executed	the	search warrant at	Winchester’s	and	his	girlfriend’s	residence.	 The	

police	seized	several	of	the	items	listed	in	the	warrant,	as	well	as	a	.22	caliber	

semi-automatic	rifle.2		In	addition,	MSP	seized	Winchester’s	truck	because	the	

troopers observed—in	plain	view—tires	and	rims	that	immediately	appeared	

to	match	the	detailed	description	of those	reported	stolen.

[¶5]		During	the	search,	MSP	photographed	a	large	number	of	tools	in	the	

storage	shed that	they	suspected	were	stolen.	 MSP	and	VBPD reached	a	verbal	

agreement	 with	 Winchester’s	 girlfriend	 whereby	 she would	 allow	 them	 to

return	to	the	property to	search	for	other	stolen	items as	long	as	the	officers	

and	troopers	did	not	bring	third	parties	to	inspect	the	items	at	the	residence	

and	gave	her	 a	 receipt	 for	 any	items	 seized.		 Later	 that	day,	MSP posted the	

photographs on	social	media,	and as	a	result,	they received	several	additional	

reports	concerning	stolen	items.

[¶6]	 	 On	 November	 11,	 2014,	 MSP	 requested	 and	 received	 a	 second	

warrant	authorizing	a	search	of	the	storage	shed	and	the	seizure	of	batteries, a	

paint	sprayer, a	tool	kit, gas	cans, a	trimmer, a	ladder, and	an	air	compressor—

 2	 	 Winchester,	 having	 been convicted	 of	 burglary	 in	 2007,	 was	 prohibited	 from	 possessing	 a	

firearm.
4

all	described	using characteristics	such	as brand,	color,	model	number,	and	size.		

The warrant	was executed	 the	same	day,	and	many	items	listed	were	seized.		

With	Winchester’s girlfriend’s	permission,	MSP	then	returned	to	the	residence	

on	several	other	occasions	through	November	and	December 2014 to	retrieve	

more	items	that	had	been	reported	stolen	that	the	troopers remembered	seeing	

while	executing	the	search	warrant.		Items	were	seized,	and	the	girlfriend	was	

provided	with	property	receipts.

[¶7]		While	this	was	occurring,	VBPD	received	another report	of	missing	

property;	 an	 individual	 suspected	 Winchester	 of	 taking	 his	 canoe.	

Remembering	having	seen	canoes	on	Winchester’s and	his	girlfriend’s property	

during	the	execution	of	VBPD’s	search	warrant,	the	chief	of	VBPD	sent	an	officer	

to	the	property to	inspect	the	canoes.	 With	the	girlfriend’s	consent,	the	officer	

seized	 a	 canoe	 that	 matched	 the	 description	 of	 the	 canoe	 that	was	 reported	

stolen.

[¶8]	 	 After	 seizing items over	 the	 course	 of	 November	 and	

December 2014,	VBPD	and	MSP	allowed	the	individuals	who	had	reported the	

thefts to	identify	 the	various	items that	 they	claimed belonged to	 them.		The	

police	 then confirmed	 ownership based	 upon whether	 the	 individuals could	

provide	 specific	 descriptions	 of	 the	 items,	 registration	 numbers,	 receipts,	
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manuals,	or	knowledge	of	identifying	characteristics, such	as	initials	or	certain	

colored	 paint	 splatter. Once	 satisfied	 with	 the	 identifications,	 and	 after	

determining	that	the	owners	needed	many	of	the	items	for	their	livelihoods or	

for	other	reasons,	the	police	returned	the	items	to	the respective	owners. The	

owners	were	told	to	keep	the	items	in	their	custody	until	the	case	was	closed in

the	event	that	the	items	were	needed	for	trial.

II.		PROCEDURAL	HISTORY

[¶9]	 	 As	 a	 result	 of	 VBPD’s and	 MSP’s investigations,	 the	 grand	 jury	

returned	six	separate	indictments	against	Winchester	charging multiple	theft	

and	 burglary	 offenses	 as	 well	 as	 criminal	 mischief,	 violation	 of	 condition	 of	

release,	and	possession	of	a	firearm	by	a	prohibited	person.3 On	August	3,	2015,	

Winchester	moved	to	suppress all	of the	evidence	seized	during	the	November	

and	December	2014	searches.		Winchester	also	sought	discovery	sanctions	for	

the	State’s	return	of	the	items	to	the	individuals	that	VBPD	and	MSP	confirmed	

were	owners of	seized	property.

[¶10]		The	court	held	a	consolidated	evidentiary	hearing	on all	pending	

motions	to	suppress on	July	20,	2016,	hearing testimony	from	the	officers	and	

 3 The	 first	of	the	six	indictments	was	returned	prior	 to	 the	execution	 of	 the	search	warrants,	

making	 the	 issue	 of	 the	 warrants’	 specificity	 irrelevant	 with	 respect	 to	those charges.	 We	 will,

however, discuss	that	indictment as	part	of	our	discussion	of	Winchester’s	due	process	challenge.
6

troopers involved	 in	 the	 execution	 of	 the	 search	 warrants	 and	 from	

Winchester’s	 girlfriend. The	 court	 also	 admitted	 in evidence	 the	 search	

warrants	 and	 inventories	 of	 the	 seized	 property.	 	 The	 court	 denied	

Winchester’s	 motions on	 October	 27,	 2016.	 	 The	 court	 found,	 contrary	 to	

Winchester’s	 contentions, that	 the	 seized	 property	 was	 not	 actually	 “lost	 or	

destroyed”	 when	 it	 was	 returned	 to	 its	 owners,	 that	 it	 had no	 apparent	

exculpatory	value	at	that	time,	and	that	law	enforcement	officers	did	not	act	in	

bad	faith	when	they	returned	the	property.		Additionally,	the	court	found	that	

the	seizure	of	property	not	pursuant	to	a	search	warrant	was	justified by	the	

plain	view	doctrine	while	law	enforcement	was	lawfully	on	the	premises	after	

receiving	consent.

[¶11]	 	 On February	 27,	 2017,	 Winchester	 filed	 motions for	

reconsideration based	 on	 the	 lack	 of	 specificity	 of	 the	 warrants.	 	 The	 court	

denied	the	motions,	reiterating	its	conclusion	that	there	was	a	valid	basis	for	

the	seizures independent	of	the	search	warrants,	namely	that	the	items	were	in	

plain	 view	 and	 that	 Winchester’s	 girlfriend	 had	 given	 consent.	 The	 court	

further	 explained	 its	 reasoning in	 two	 orders	 dated	 March	 1,	 2017, and	

August 24,	2017.
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[¶12]	 	 On	 November	 9,	 2017,	 one	 of	 the	 six	 indictments,	 charging	

Winchester	 with	 theft	 by	 unauthorized	 taking	 and	 violation	 of	 condition	 of	

release, went	to	a	jury	trial; the	jury	returned	guilty	verdicts	on	both	counts. At	

a sentencing	 hearing	 on	 December	 6,	 2017,	 Winchester	 entered	 conditional	

pleas	of	no	contest	on	all	counts	in	the	remaining	five	indictments,	preserving	

for	 appeal	 the	issues	 of	lack	 of	 a	 speedy	 trial,	 the	 State’s	 failure	 to	 preserve	

potentially	 exculpatory	 evidence,	 and	 the	 lack	 of	 particularity	 of	 the	 search	

warrants.4 The	 court	 sentenced	 Winchester	 to	 a	 total	 of	 ten	 years’	

incarceration, and	Winchester	timely	appealed.		See 15 M.R.S.	§	2115	(2017);	

M.R.	App.	P.	2B(b).

III.		DISCUSSION

[¶13]	 	 On	 appeal,	 Winchester	 renews	 his	 two	 arguments	 from	 his	

motions	to	suppress.		First,	he	argues that	because	law	enforcement	returned	

seized	items	to	their	purported	owners,	the	State failed	to	preserve	exculpatory	

evidence in	violation	of	his due	process	right	to	a	fair	trial.		Second,	he	argues

that	 the	 two	search	warrants	 failed	 to	designate	all	of	 the items	to	be seized	

with	 adequate	 particularity,	 making	 the	 warrants	 unconstitutionally	 vague.		

 4 Winchester	did	not present	any	developed	argument concerning	his	lack	of	a	speedy	trial	to	the	

trial	court	or	in	his	briefing	to	this	Court.		Thus,	Winchester	is	deemed	to	have	abandoned	this	issue	

on	appeal.		See M.R.	App.	P.	7A(a)(1)(E); State	v.	Jandreau,	2017	ME	44,	¶	14,	157	A.3d	239;	State v.	

Webber,	2000	ME	168,	¶	5	n.2,	759	A.2d	724.
8

We address	 Winchester’s	 arguments	 in	 turn,	 reviewing	 the	 motion	 court’s	

factual	 findings	 for	 clear	 error	 and	 its	 legal	 conclusions	 de	 novo. Marquis,	

2018 ME	39,	¶	15,	181	A.3d	684.

A. Spoliation

[¶14]		Winchester	contends	that	law	enforcement’s premature return	of	

property	 to	 its	 purported	 owners	 deprived	 him	 of	 the	 ability	 to	 adequately	

inspect	the	property and	to	demonstrate	his	ownership	by	showing	familiarity	

with	 the	 property,	 effectively spoiling	 the	 evidence.	 	 In	 State	 v.	 Cote,	

2015 ME 78,	 ¶	 15,	 118 A.3d 805,	 we	 clarified	 the	 analysis	 for	 determining	

whether the	State’s	failure	to	preserve	evidence	violated	a	defendant’s	right	to	

a	fair	trial.

First,	the	court	must	determine	whether	the	evidence	possessed	an	

exculpatory	 value	 that	 was	 apparent	 before	 the	 evidence	 was	

destroyed.	 	 If	 so,	 then	 the	 defendant	 must	 show	 only	 that	 the	

evidence	was	of	such	a	nature	that	the	defendant	would	be	unable	

to	 obtain	 comparable	 evidence	 by	 other	 reasonably	 available	

means.		If,	however,	the	exculpatory	value	of	the	evidence	was	not	

apparent	 at	 the	 time	 of	 its	 loss	 or	 disappearance,	 the	 defendant	

cannot	establish	a	constitutional	deprivation	without	proof	that	the	

State	also	acted	in	bad	faith	in	failing	to	preserve	the	evidence.

Id. (citations	and	quotation	marks	omitted).

[¶15]	 	 Implicit	 in	 this	 analysis	 is	 a threshold	 requirement	 that	 the	

defendant	show	that the	evidence	in	question was	in	fact	lost	or	destroyed.	 In	
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this	case,	 the	motion	court	found that	Winchester	merely	demonstrated	 that	

property	 was	 returned	 to	 its	 purported	 owners,	 not	 that	 evidence	 was

unavailable	for	his	trial.		This	finding	was	not	clearly	erroneous.		See Marquis,	

2018	ME	39,	¶	15,	181	A.3d	684.		Indeed,	law	enforcement	told	the purported	

owners	that	the	property	returned	to	them	would	have	to	be	available	for	trial,	

and	the	owners were	further	instructed	to	keep	the	property	in	their	custody	

until	they	were	told	the	case	was	closed.		Thus, Winchester	failed	to	show upon	

the	 specific	 facts	 of	 this	case that the	 evidence	was	lost	 or	 destroyed	 by	 the	

State.	 Even	if	Winchester	had	made	the	threshold	showing	that	the	evidence	

was	lost	 or	destroyed,	he	 failed	 to	demonstrate	 that	any	 of	 the	evidence	had	

exculpatory	 value	 that	was	 apparent	 at	 the	 time	 the	items	were	 returned	 to	

their	purported	owners.		Because	Winchester	did	not	make	the	requisite initial	

showing,	the	motion	court	correctly	concluded that	there	was	no	violation	of	

his right	to	a	fair	trial based	on	the	State’s	failure	to	preserve	evidence.

5

B. Sufficiency	of	the	Warrants

[¶16]		Winchester	next	contends	that	the	warrants	lacked	specificity	as	

to the	items	sought	because although	 tools	were	listed	with	a	corresponding	

 5 Our	conclusion	is	limited	to	the	specific	facts	and	circumstances	of	this	case.	We	offer	no	opinion	

on	 the	question	of	whether	 the	release	of	seized	items	by	police	could	constitute	spoliation	under	

other	circumstances.
10

brand	name	and	color,	many	tool	companies	have	certain	colors	that	are	closely	

associated	 with	 their	 products.	 	 This,	 according	 to Winchester,	 made the	

addition	 of	 the	 color	 descriptions	 of	 little	 value and	 rendered the	 warrants	

unconstitutionally	vague.		We	disagree.

[¶17]	 	“A	 warrant	 must	 describe	 the	 property	 to	 be	 seized	 with	 such	

particularity	that	an	executing	officer	will	be	able	to	identify	it	with	certainty.”	

State	v.	Lehman,	1999	ME	124,	¶	8,	736	A.2d 256 (quotation	marks	omitted).		

We	have	held	that	warrants	are sufficiently	particularized when the	property	

to	be	seized	is described	as	specifically	as	possible	under	the	circumstances	of	

the	case.		See id. ¶	10 (“The	description	of	the	computer	equipment	seized	was	

as	 specific	 as	 the	 circumstances	 and	 the	 nature	 of	 the	 activity	 under	

investigation	 permitted.” (quotation	 marks	 omitted));	 State	 v.	 Moulton,	

481 A.2d	 155,	 166	 (Me.	 1984)	 (“The	 affidavit	 [supporting	 the	 warrant]	

contained	descriptions	such	as	‘10	boxes	of	spark	plugs,	1	R-27	Battery,	3	r-55	

Batteries .	. .	.’ Under	 the	circumstances,	 those	descriptions were	sufficiently	

detailed.”).

[¶18]		In	this	case, the	search	warrants	identified	the	items	to	be	seized	

with	 as	 much	 particularity	 as	 was	 possible	 under	 the circumstances.	 	 The	

warrants	listed	the	property	sought,	describing	the	items using	characteristics	
11

such	 as brand	 name,	 color,	 whether	 the	 items	 were	 corded	 or	 cordless,	

dimensions,	 model	 numbers,	 and the	 presence	 of	 identifying	 marks	 such	 as	

owner’s initials.		Indeed,	it	is	difficult	to	imagine what	additional	information	

could	reasonably	have	been	provided.		This	is	to	be	contrasted	with	a	warrant	

authorizing	the	seizure	 of	 “miscellaneous	 tools,”	 or	something	with a	 similar

degree	of	vagueness.		The	descriptions	here	were	“not	too	elliptical	to give	clear	

guidance	to	the	seizing	officer[s]”	and	troopers.		State	v.	Thornton,	414	A.2d	229,	

232	(Me. 1980) (quotation	marks	omitted).		Accordingly,	the	search	warrants	

adequately	identified the	items	to	be	seized.

The	entry	is:

Judgment	affirmed.

John W. Tebbetts, Esq. (orally), Tebbetts Law Office, LLC, Presque Isle, for 

appellant Dennis Winchester

Todd	R.	Collins,	District	Attorney, James	G.	Mitchell	Jr.,	Asst.	Dist.	Atty., and	Kurt	

A.	 Kafferlin,	 Asst.	 Dist.	 Atty. (orally), Prosecutorial	 District	 8,	 Caribou,	 for	

appellee	State	of	Maine

Aroostook	County Superior	Court	docket	numbers	CR-2014-267,	515,	545,	547;	CR-2015-3, 67

FOR	CLERK	REFERENCE	ONLY