MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018	ME 142 Docket: A ro - 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 order s of	 the trial	 court (Aroostook County, Hunter,	J. ) denying his	motion s 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 (citatio n	 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
eye witness	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	to ols .		The	warrant thoroughly	described	each	item	to	be	seized	using
characteristics like type,	 manufacture r ,	 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	th is 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	se veral	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

— t ires	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 t o	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	additio nal

r eports	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	compr essor —

2 Winchester,	 having	 been convicted	 of	 burglary in	 2007 ,	 was	 prohibit ed	 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. I tems	were	seized,	and	the	girlfriend	was provided	with	property	receipts. [¶ 7 ] While	this	was	occurring , VBPD	received	a nother 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
theft s to	identify	 the various items that	 they	claimed belong ed to	 them .		The police	 then confirmed ownership based	 upon whether	 the individuals could provide	 specific	 descriptions	 of	 the	 items,	 registration	 numbers,	 receipts,5 manuals, or knowledge	of identifying characteristics , such	as	initials	or certain colored paint	 splatter

. Once satisfied	 with	 the	 identifications , and	 after determining tha t	the	owners	needed	many	of	the	items	for	their	livelihood s or for	other	reasons , the	police	returned the	items to the respective owners. The

owners	were told	to	keep	the	items	i n	their	custody	until	the	case	was	closed in the	event	that the	items	were	ne eded	for	trial

. I I. 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

. [¶1 0 ] The	court	held	a consolidated	evidentiary hearing	on all	pending

m otions	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	challeng e.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 ha d 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	se arch	warrant	was justified by	the plain	view	doctrine	while	law	enforcement	was	lawfully	on	the	premises	after receiving consent. [¶1 1 ] On February	 27,	 2017,	 Winchester	 file d motion s for
reconsideration based	 on	 the	 lack	 of specificity	 of	 the	 warrants. The	 court
denied	the	motion s ,	reiterating	its	conclusion	that	there	was	a	valid	basis	for
the	seizure s independent	of	the	search	warrant s ,	namely	that	the	items	were	in plain	 view	 and	 that	 Winchester’s	 girlfriend	 had	 given	 consent

. The	 court
further expla ined	 its	 reasoning in	 two	 orders	 dated	 March	 1,	 2017 , and August 24,	2017.7 [¶1 2 ] 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	r eturned	guilty	verdicts	on	both	counts. A t

a sentencing	 hearing	 on	 December	 6,	 2017,	 Winchester	 entered	 conditional pleas	of	no	contest on	all	counts i n	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 sentenc ed	 Winchester	 to	 a	 total	 of	 ten	 years’
incarceration , a nd	Winchester	timely	appealed

. See 15 M.R.S.	§	2115	(2017) ; M.R.	App.	P.	2B(b)

. I I I.		DISCUSSION [¶1 3 ] On	 appeal, Winchester renews	 his	 two	 arguments	 from	 his motions	to	suppress .		First, he	argues that because	law	enforcement	returned
seized	items	to the ir	purported owners, the	St ate failed	to	preserve	exculpatory
evidence in	vio lation	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	 unconsti tutionally	 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 C ourt.		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 [¶1 4 ] 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 sp oiling	 t he	 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	def endant’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	 availa ble 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	preserv e	the	evidence.
Id. (citation s	and	quotation	marks	omitted). [¶1 5 ] Implicit	 in	 this	 analysis	 is a threshold requirement	 that	 the
defendant	show that the	evidence	in	question was	in	fact	lost	or	destroyed. In9 this	case,	 t he	motion	court found that	Winchester	merely	demonstrated	 that property	 was	 returned	 to	 its	 purported	 owner s ,	 not	 that	 evidence was

un available	for his	trial. This	finding	was	not	clearly	erroneous. See Marquis , 2018	ME	39,	¶	15,	181	A.3d	684. Indeed, law	enforcement told	t he 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	 sp ecific	 facts	 of	 this	case that the	 evidence	was	l ost	 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	 app arent	 at	 the	 time	 the	items	were	 returned	 to their	purported	owners. Because	Winchester	did	not	make the	requisite initial showing,	t he 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 [¶1 6 ] 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	spolia tion	under other	circumstances.10 brand name and	color, m any	tool	companies	have certain	colors	that	are closely

a ssociated	 with	 their	 products. This,	 according	 to Winchester,	 ma de the addition	 of	 the	 color	 descriptions of	 little	 value and rendered the	 warrants unconstitutionally	vague. We	disagree. [¶1 7 ] “A warrant	 must	 describe	 the	 property	 to	 be	 seized	 with	 such particularity	that	an	executing	officer	will	be	a b le	to	identify	it	with	certainty.”
State	v.	Lehman ,	1999	ME	124,	¶	8, 736	A.2d 256 (quotation marks	omitted).
W e	have	held that warrants are sufficient ly	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	 o f	 the	 activit y	 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
B atteries

.	. .	. ’ Under	 the	circumstances,	 those	descriptions were	sufficiently detailed.”). [¶1 8 ] I n	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	characteristics11 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,
2 32	(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 F OR C LERK R EFERENCE O NLY