State of Maine v. Dennis F. Winchester

2018 ME 142

• Court: Supreme Judicial Court of Maine
• Decided: October 18, 2018
• Status: Published

Opinion

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, 5

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. 7

[¶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 9

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