MAINE	SUPREME	JUDICIAL	COURT	                     	                    Reporter	of	Decisions	
Decision:	    2018	ME	37	
Docket:	      Aro-17-98	
Submitted	
  On	Briefs:	 October	24,	2017	
Decided:	     March	15,	2018	
	
Panel:	       SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                  DAVID	L.	SULLIVAN	
	
	
SAUFLEY,	C.J.	

       [¶1]	 	 David	 L.	 Sullivan	 appeals	 from	 a	 judgment	 of	 conviction	 for	

aggravated	trafficking	in	scheduled	drugs	(Class	A),	17-A	M.R.S.	§	1105-A(1)(I)	

(2017),	 unlawful	 possession	 of	 a	 scheduled	 drug	 (Class	C),	 17-A	 M.R.S.	

§	1107-A(1)(B)(3)	 (2017),	 and	 unlawful	 possession	 of	 oxycodone	 (Class	 C),	

17-A	M.R.S.	§	1107-A(1)(B)(4)	(2017),	entered	by	the	court	(Aroostook	County,	

Stewart,	J.)	following	a	jury	trial.		Sullivan	argues	that	the	court	(Soucy,	J.)	erred	

in	denying	his	motion	to	suppress	evidence	that	was	found	in	the	curtilage	of	

his	home	and	that	the	trial	court	abused	its	discretion	when	it	denied	his	motion	

to	exclude	other	evidence	on	the	basis	of	a	discovery	violation.		We	affirm	the	

judgment.			
2	

                                                I.		BACKGROUND	

          [¶2]	 	 After	 conducting	 a	 hearing	 on	 Sullivan’s	 motion	 to	 suppress,	 the	

court	found	the	following	facts,	which	are	supported	by	the	record	viewed	in	

the	light	most	favorable	to	the	court’s	order.1		See	State	v.	Kierstead,	2015	ME	

45,	¶	2,	114	A.3d	984.		On	March	27,	2013,	a	woman2	was	arrested	outside	of	a	

Bangor	motel	after	attempting	to	buy	a	large	quantity	of	oxycontin	pills.		Her	

arrest	 gave	 rise	 to	 probable	 cause	 to	 search	 her	 home	 in	 Caribou,	 which	 she	

shared	with	Sullivan.		Two	law	enforcement	officers,	a	special	agent	from	the	

Maine	 Drug	 Enforcement	 Agency	 and	 a	 sergeant	 from	 the	 Aroostook	 County	

Sheriff’s	Office,	went	to	the	Caribou	home	pending	issuance	of	a	search	warrant.		

Their	 purpose	 in	 going	 to	 the	 home	 was	 to	 conduct	 a	 “security	 check”	 and	

thereby	prevent	the	destruction	of	evidence	and	ensure	the	safety	of	officers	

arriving	at	the	home	with	the	anticipated	warrant.			

          [¶3]		Sullivan’s	Caribou	home	is	a	mobile	home	with	a	porch	on	the	front	

and	an	addition	extending	from	the	back.		It	is	located	down	a	long	driveway	

and	 is	 surrounded	 by	 woods.	 	 When	 the	 officers	 arrived	 at	 the	 home	 shortly	




     1	 	 In	 its	 brief,	 the	 State	 combined	 the	 motion	 to	 suppress	 facts	 and	 the	 trial	 facts.	 	 For	 future	

reference,	this	makes	appellate	review	of	the	order	on	the	motion	to	suppress	more	difficult.			
     2		That	woman	died	on	November	22,	2014.			
                                                                                                               3	

after	7:30	p.m.,	it	was	dark	outside,	and	they	observed	several	security	cameras	

mounted	around	the	house.			

        [¶4]	 	 The	 officers	 knocked	 on	 the	 front	 door	 and	 announced	 their	

presence.	 	 A	 dog	 barked	 from	 inside	 the	 house,	 but	 no	 one	 answered.	 	 The	

officers	then	left	the	front	porch	and	walked	around	the	house	to	see	if	there	

was	a	rear	door.		As	they	walked	around	the	side	of	the	house,	within	a	few	feet	

of	the	home,	the	officers	came	upon	two	plastic	shopping	bags	that	were	sitting	

on	 the	 ground.	 	 The	 bags	 were	 nearly	 translucent,	 and	 it	 was	 immediately	

apparent	that	they	contained	drug	paraphernalia.		The	bags	emitted	a	strong	

odor	of	marijuana.		Because	the	bags	sat	atop	fresh	snow	and	had	no	footprints	

around	them,	it	appeared	that	they	had	recently	been	thrown	from	a	window.		

The	officers	took	the	bags	back	to	their	vehicle,	searched	the	bags’	contents,	and	

discovered	contraband.		Eventually,	the	home	was	searched	on	the	basis	of	the	

warrant	obtained	that	evening.			

        [¶5]		A	year	later,	on	March	7,	2014,	Sullivan	was	charged	by	indictment	

with	trafficking	and	possession.		He	pleaded	not	guilty	to	all	charges	and	moved	

to	suppress	the	evidence	of	the	two	bags	discovered	outside	of	his	home.		After	

a	hearing,	the	court	(Soucy,	J.)	denied	the	motion.3			


   3	 	 The	 defendant	 filed	 a	 brief	 motion	 for	 further	 findings	 pursuant	 to	 M.R.U.	 Crim.	 P.	 41A(d),	

specifically	 asking	 the	 court	 to	 find	 “that	 the	 inspection	 of	 the	 bags	 was	 done	 with	 the	 aid	 of	
4	

         [¶6]		Almost	three	years	after	the	indictment,	the	court	(Stewart,	J.)	held	

a	 three-day	 jury	 trial	 in	 January	 2017.4	 	 Immediately	 before	 trial,	 Sullivan	

moved	to	exclude	the	testimony	of	a	pharmacist	as	a	discovery	sanction	on	the	

ground	that	the	State	had	substituted	the	witness	for	another	pharmacist	the	

day	 before	 trial.	 	 The	 court	 denied	 the	 motion,	 the	 pharmacist	 testified,	 and	

Sullivan	cross-examined	her	vigorously.			

         [¶7]	 	 The	 jury	 found	 Sullivan	 guilty	 of	 all	 three	 charges.	 	 The	 court	

sentenced	 him	 to	 twelve	 years	 of	 imprisonment	 with	 all	 but	 four	 years	

suspended	and	three	years	of	probation	for	the	aggravated	trafficking	charge.		

The	court	also	sentenced	Sullivan	to	one	year	of	imprisonment	for	each	of	the	

other	 charges,	 to	 be	 served	 concurrently	 with	 the	 sentence	 for	 aggravated	

trafficking.	 	 Sullivan	 timely	 appealed.	 	 See	 15	 M.R.S.	 §	2115	 (2017);	 M.R.	

App.	P.	2(b)(2)(A)	(Tower	2016).5			




flashlights,	in	the	dark,	in	the	curtilage	of	the	home.”		The	court	denied	the	motion,	having	determined	
in	its	original	order	that	the	bags	were	located	within	the	curtilage.		
     4		The	record	does	not	reveal	whether	Sullivan	was	incarcerated	while	he	awaited	trial.			


     5		The	notice	of	appeal	was	filed	before	September	1,	2017,	the	effective	date	of	the	restyled	Maine	

Rules	of	Appellate	Procedure.		See	M.R.	App.	P.	1.	
                                                                                        5	

                                   II.		DISCUSSION	

A.	   Denial	of	the	Motion	to	Suppress	

      1.	    Standard	of	Review	

      [¶8]	 	 We	 review	 the	 denial	 of	 a	 motion	 to	 suppress	 by	 applying	 the	

familiar	appellate	 process—the		motion	court's	factual	findings	are	reviewed	

for	 clear	 error	 and	 its	 legal	 conclusions	 are	 reviewed	 de	 novo.	 	 State	

v.	Prinkleton,	2018	ME	16,	¶	17,	---A.3d---.		A	finding	of	fact	is	clearly	erroneous	

only	if	the	record	lacks	any	competent	evidence	to	support	the	finding.		State	v.	

Harriman,	467	A.2d	745,	747	(Me.	1983).		Once	the	facts	have	been	established,	

a	 motion	 court’s	 ultimate	 determination	 that	 evidence	 was	 located	 within	 or	

outside	the	curtilage	of	a	home—as	well	as	its	conclusion	that	a	search	was	or	

was	not	reasonable—is	a	conclusion	of	law	and	is	subject	to	de	novo	review.		

United	States	v.	Brown,	510	F.3d	57,	64	(1st	Cir.	2007).	

      2.	    Sullivan’s	Motion	

      [¶9]		Sullivan’s	central	argument	is	that	evidence	obtained	as	a	result	of	

the	 officers’	 search	 of	 the	 bags	 they	 discovered	 within	 his	 “curtilage”	 should	

have	 been	 excluded	 because	 the	 officers	 had	 not	 obtained	 a	 warrant	 and	 no	

exception	to	the	warrant	requirement	applied.			
6	

        [¶10]	 	 The	 Fourth	 Amendment	 of	 the	 United	 States	 Constitution	 sets	

limits	 on	 warrantless	 law	 enforcement	 searches	 of	 the	 “curtilage.”6	 	 State	 v.	

Trusiani,	2004	ME	107,	¶	10,	854	A.2d	860;	Oliver	v.	United	States,	466	U.S.	170,	

180	 (1984).	 	 As	 always,	 the	 touchstone	 of	 a	 Fourth	 Amendment	 inquiry	 is	

whether	the	actions	of	the	State	were	reasonable,	Ohio	v.	Robinette,	519	U.S.	33,	

39	(1996),	but	a	person’s	reasonable	expectation	of	privacy	in	the	space	outside	

his	home	is	not	identical	to	the	expectation	of	privacy	he	has	in	his	home.		See	

Trusiani,	2004	ME	107,	¶	15,	854	A.2d	860	(“Although	the	curtilage	of	the	home	

is	protected	from	unreasonable	entries	and	searches	.	.	.	the	State	is	allowed	to	

intrude	 into	 the	 home’s	 curtilage	 under	 certain	 circumstances,	 including	

accessing	the	entry	to	a	dwelling	while	conducting	legitimate	law	enforcement	

activities.”).			

        [¶11]	 	 When	 a	 defendant	 seeks	 to	 suppress	 evidence	 found	 during	 a	

warrantless	search	alleged	to	have	taken	place	within	the	curtilage,	the	motion	

court	will	first	determine	whether	the	evidence	at	issue	was	found	within	the	

defendant’s	curtilage.		Id.	¶	11.		If	the	evidence	was	found	within	the	curtilage,	



   6		The	United	States	Constitution	provides,	“The	right	of	the	people	to	be	secure	in	their	persons,	

houses,	papers,	and	effects,	against	unreasonable	searches	and	seizures,	shall	not	be	violated.”		U.S.	
Const.	 amend.	 IV.	 	 The	 Maine	 Constitution	 provides,	 “The	 people	 shall	 be	 secure	 in	 their	 persons,	
houses,	papers	and	possessions	from	all	unreasonable	searches	and	seizures	.	.	.	.”		Me.	Const.	art.	I,	
§	5.	
                                                                                                    7	

the	 court	 must	 determine,	 as	 a	 matter	 of	 law,	 whether	 the	 search	 was	

undertaken	consistent	with	the	Constitution—that	is,	whether	the	search	was	

otherwise	reasonable,	falling	within	an	exception	to	the	warrant	requirement.		

See	id.	¶¶	11,	15.		

       [¶12]		In	the	matter	before	us,	we	begin	by	examining	the	motion	court’s	

determination	 that	 the	 bags	 observed	 by	 the	 officers	 were	 within	 Sullivan’s	

curtilage.		If	the	bags	were	within	the	curtilage,	we	must	determine	whether	the	

officers’	actions	were	reasonable	in	light	of	two	well-recognized	exceptions	to	

the	warrant	requirement:	(i)	the	plain	view	exception,	and	(ii)	the	exception	for	

a	 temporary	 seizure	 to	 secure	 a	 residence.	 	 We	 also	 consider	 whether,	 if	 the	

ensuing	 search	 of	 the	 bags	 was	 unlawful,	 the	 evidence	 is	 nonetheless	

admissible	pursuant	to	the	inevitable	discovery	doctrine.			

               a.	     Defining	the	“Curtilage”	

       [¶13]		The	motion	court	concluded,	with	little	discussion,	that	the	bags	

were	 located	 within	 Sullivan’s	 curtilage.7	 	 The	 “extent	 of	 the	 curtilage	 is	

determined	by	factors	that	bear	upon	whether	 an	individual	reasonably	may	




   7		Although	the	State	argued	at	the	motion	hearing	that	Sullivan	had	no	ownership,	possession,	or	

control	of	the	premises,	and	therefore	had	no	reasonable	expectation	of	privacy	in	the	curtilage,	the	
motion	court	found	that	Sullivan	was	a	“part	owner	of	the	premises,”	and	the	State	does	not	challenge	
that	finding.	
8	

expect	that	the	area	in	question	should	be	treated	as	the	home	itself.”		United	

States	v.	Dunn,	480	U.S.	294,	300	(1987).		The	“central	component	of	this	inquiry	

[is]	whether	the	area	harbors	the	intimate	activity	associated	with	the	sanctity	

of	a	man’s	home	and	the	privacies	of	life.”		Id.	(quotation	marks	omitted).		Four	

nonexclusive	 factors	 will	 guide	 the	 court	 in	 determining	 whether	 an	 area	 is	

within	the	curtilage:	(1)	the	proximity	of	the	area	to	the	home,	(2)	whether	the	

area	is	included	within	an	enclosure	surrounding	the	home,	(3)	the	nature	of	

the	uses	to	which	the	area	is	put,	and	(4)	steps	taken	by	the	resident	to	protect	

the	area	from	observation	by	people	passing	by.		State	v.	Boyington,	1998	ME	

163,	¶	7,	714	A.2d	141;	see	also	Dunn	v.	Commonwealth,	360	S.W.3d	751,	758-59	

(Ky.	2012)	(discussing	the	United	States	v.	Dunn	factors).			

       [¶14]		Here,	the	bags	 at	issue	were	found	in	 plain	view	on	the	ground.		

The	record	does	not	identify	any	fence	or	other	obstruction	that	might	indicate	

an	intent	to	keep	the	area	private,	and	the	boundaries	of	Sullivan’s	land	are	not	

identified.8		Nor	is	there	evidence	of	any	steps	taken	to	protect	the	area	from	

observation.	 	 There	 is	 evidence,	 however,	 to	 support	 the	 conclusion	 that	 the	



   8		Sullivan	seems	to	emphasize	the	fact	that	the	officers	left	the	plowed	area	of	the	driveway	when	

they	walked	around	the	side	of	the	house,	as	if	by	leaving	an	area	unplowed	Sullivan	had	manifested	
an	intent	to	maintain	privacy.		The	court,	however,	did	not	determine	whether	that	fact	was	relevant.		
Sullivan	also	emphasizes	that	the	officers	made	their	observations	using	flashlights.		The	fact	that	an	
area	is	dark	in	the	nighttime	does	not	necessarily	suggest	a	desire	to	keep	the	area	private.			
                                                                                       9	

bags	were	within	the	curtilage	of	the	home	given	their	proximity	to	the	window	

from	which	they	had	apparently	been	recently	discarded	and	the	fact	that	they	

were	located	toward	the	rear	of	the	home	within	the	“L”	created	by	the	addition.		

Because	the	State	did	not	affirmatively	dispute	that	the	bags	were	within	the	

curtilage,	we	do	 not	disturb	the	court’s	 conclusion	that	the	bags	were	within	

the	curtilage	when	first	observed	by	the	officers.			

             b.	       Applicability	of	Exceptions	to	the	Warrant	Requirement	

                   	   i.	   The	Plain	View	Exception	

      [¶15]	 	 We	 next	 consider	 whether,	 given	 their	 placement	 within	 the	

curtilage,	the	bags	could	be	seized	by	the	officers	in	the	absence	of	a	warrant.		

The	 pertinent	 exception	 to	 the	 warrant	 requirement	 here	 is	 the	 plain	 view	

exception,	pursuant	to	which	objects	falling	into	the	plain	view	of	an	officer	who	

is	 legitimately	 in	 a	 position	 to	 perceive	 the	 objects	 are	 subject	 to	 seizure	

without	violating	the	defendant’s	Fourth	Amendment	rights.		Coolidge	v.	New	

Hampshire,	403	U.S.	443,	465-66	(1971).		In	order	for	the	plain	view	exception	

to	 the	 warrant	 requirement	 to	 apply,	 the	 “incriminating	 character”	 of	 the	

evidence	must	be	“immediately	apparent,”	State	v.	McNaughton,	2017	ME	173,	
10	

¶	42,	168	A.3d	807,	and	the	officers	must	have	a	legitimate	reason	to	be	in	the	

place	from	which	they	make	their	observation,	Coolidge,	403	U.S.	at	465-66.			

      [¶16]		Here,	the	suppression	court	found	that	the	officers	discovered	the	

bags	inadvertently	and	that	the	incriminating	character	of	the	contents	of	the	

bags—drugs	 and	 paraphernalia—was	 immediately	 apparent.	 	 Thus,	 the	

officers’	seizure	of	the	bags	was	reasonable	as	long	as	their	“security	check”	was	

proper	and	gave	them	the	authority	to	be	within	Sullivan’s	curtilage	when	they	

made	their	inadvertent	observation.		See	United	States	v.	Delva,	858	F.3d	135,	

149	(2d	Cir.	2017)	(observing	that	evidence	discovered	in	plain	view	during	a	

“protective	 sweep”	 of	 an	 apartment	 is	 admissible).	 	 We	 next	 consider	 that	

question.	

	     	      	      ii.	   Temporary	Seizure	to	Secure	the	Residence	

      [¶17]	 	 The	 State	 argues	 that	 the	 officers’	 “security	 check”	 was	 justified	

pursuant	to	the	exception	to	the	warrant	requirement	that	permits	officers	to	

temporarily	 secure	 a	 residence	 to	 prevent	 the	 destruction	 of	 evidence	 while	

pursuing	a	warrant.		See	Illinois	v.	McArthur,	531	U.S.	326,	333	(2001);	United	

States	v.	Parker,	549	F.3d	5,	9	(1st	Cir.	2008).		Officers	may	temporarily	secure	

a	residence	if	(1)	the	officers	have	probable	cause	to	believe	the	home	contains	

evidence	of	a	crime;	(2)	the	officers	have	reason	to	believe	that	evidence	could	
                                                                                                   11	

be	destroyed	before	they	obtain	the	warrant;	(3)	the	officers	make	reasonable	

efforts	to	reconcile	their	law	enforcement	needs	with	the	demands	of	personal	

privacy;	and	(4)	the	time	period	lasts	no	longer	than	reasonably	necessary	for	

the	police	to	obtain	a	warrant.9		McArthur,	531	U.S.	at	331-33.		

       [¶18]		Applying	the	McArthur	factors	here,	the	suppression	court	found	

that	the	officers	had	probable	cause	to	believe	that	the	home	contained	drugs.		

Given	the	arrest	of	Sullivan’s	housemate	and	her	subsequent	failure	to	return	

home	 following	 an	 attempt	 to	 purchase	 a	 significant	 quantity	 of	 drugs,	 the	

police	had	reason	to	believe	that	evidence	of	drugs	at	Sullivan’s	home	might	be	

destroyed.		By	walking	around	the	side	of	the	house,	the	officers	intruded	upon	

Sullivan’s	 privacy	 only	 minimally.	 	 The	 police	 obtained	 a	 warrant	 within	 five	

hours	after	arriving	at	the	residence.			

       [¶19]	 	 We	 emphasize	 that	 the	 third	 McArthur	 factor	 most	 strongly	

supports	the	reasonableness	of	the	officers’	conduct	here	because,	in	entering	

Sullivan’s	curtilage,	the	officers	only	minimally	intruded	on	his	privacy.		Id.	at	

332.	 	 There	 is	 no	 question	 that	 the	 officers	 were	 authorized	 to	 approach	



   9		We	also	note	an	additional	factor	that	is	pertinent	here.		The	officers	at	Sullivan’s	home	were	

motivated	not	only	by	a	desire	to	prevent	destruction	of	evidence,	but	also	by	an	intent	to	ensure	the	
safety	of	officers	and	others	arriving	at	the	scene.		Given	the	presence	of	mounted	security	cameras,	
the	remote	area,	and	the	size	of	the	drug	purchase	that	motivated	officers	to	seek	a	search	warrant,	
this	was	a	reasonable	concern.			
12	

Sullivan’s	front	door,	because	Sullivan	had	no	reasonable	expectation	of	privacy	

in	the	access	that	all	members	of	the	public	are	invited	to	utilize.		See	Trusiani,	

2004	ME	107,	¶	15,	854	A.2d	860;	United	States	v.	Bain,	874	F.3d	1,	12-13	(1st	

Cir.	2017).			

       [¶20]		Recognizing	this	implied	invitation	to	approach	a	home,	we	have	

held	that	a	police	officer	responding	to	a	complaint	about	a	barking	dog	did	not	

violate	 a	 defendant’s	 reasonable	 expectation	 of	 privacy	 when	 he	 walked	 to	 a	

side	door,	knocked,	received	no	answer,	and	glanced	into	a	basement	window,	

only	then	observing	several	marijuana	plants.		State	v.	Cloutier,	544	A.2d	1277,	

1279,	1281	(Me.	1988).		In	a	case	that	is	very	similar	to	the	one	before	us,	United	

States	v.	Daoust,	916	F.2d	757,	758	(1st	Cir.	1990),	the	United	States	Court	of	

Appeals	 for	 the	 First	 Circuit	 held	 that	 police	 officers	 did	 not	 act	 improperly	

when	they	walked	to	the	back	door	of	 a	house	given	that	the	front	door	 was	

inaccessible	and	they	had	received	no	answer	after	knocking	at	a	cellar	window.		

Id.		Their	observation	of	a	handgun,	observed	in	plain	view	from	the	back	of	the	

house,	did	not	render	the	handgun	inadmissible.		Id.			

       [¶21]		Here,	as	in	Daoust,	the	officers	were	not	“simply	snooping”	when	

they	went	to	the	back	door.		Id.	at	758.		The	officers’	conduct	in	briefly	walking	

to	 the	 back	 of	 the	 house	 to	 see	 whether	 there	 was	 a	 rear	 door	 was	 only	
                                                                                         13	

minimally	 invasive	 of	 Sullivan’s	 privacy.	 	 Balanced	 against	 the	 officers’	

legitimate	interest	in	protecting	themselves	and	preventing	the	destruction	of	

evidence,	their	conduct	was	reasonable.		See	McArthur,	531	U.S.	at	330	(“When	

faced	with	special	law	enforcement	needs,	diminished	expectations	of	privacy,	

minimal	intrusions,	or	the	like,	.	.	.	certain	general,	or	individual,	circumstances	

may	 render	 a	 warrantless	 search	 or	 seizure	 reasonable.”).	 	 They	 were,	

therefore,	legitimately	in	a	place	to	see	the	bags	which	were	sitting	unprotected	

and	uncovered	on	the	snow.			

	      	      	      iii.	   Inevitable	Discovery	Exception	

       [¶22]		Finally,	we	must	determine	whether	the	officers’	conduct,	not	only	

in	 seizing	 the	 bags	 but	 also	 in	 searching	 the	 bags	 prior	 to	 the	 issuance	 of	 a	

warrant,	renders	the	evidence	of	the	contents	of	the	bags	inadmissible.		Given	

that	 there	 was	 no	 exigency	 or	 other	 circumstance	 permitting	 the	 officers	 to	

search	the	contents	of	the	bags	immediately,	the	proper	course	for	the	officers	

would	 have	 been	 to	 await	 the	 issuance	 of	 a	 warrant	 before	 conducting	 any	

search.		See	Horton	v.	California,	496	U.S.	128,	135	(1990)	(explaining	that	the	

plain	 view	 exception	 permits	 warrantless	 seizure	 but	 does	 not	 permit	 a	

warrantless	search);	Segura	v.	United	States,	468	U.S.	796,	810	(1984)	(holding	

that	 a	 warrantless	 temporary	 seizure	 to	 secure	 a	 residence	 is	 proper,	 but	
14	

observing	 that	 a	 search	 conducted	 in	 the	 process	 would	 not	 be	 proper).		

However,	on	these	facts,	the	officers	would	have	been	 justified	in	seizing	the	

bags	and	retaining	them	until	a	warrant	issued.		Because	they	otherwise	would	

have	 retained	 the	 bags	 while	 awaiting	 a	 warrant,	 the	 inevitable	 discovery	

exception	 may	 apply	 with	 respect	 to	 their	 immediate	 search	 of	 the	 bags’	

contents.			

      [¶23]	 	 The	 inevitable	 discovery	 exception	 permits	 the	 use	 of	 evidence	

that	would	otherwise	be	excluded	when	that	evidence	“inevitably	would	have	

been	discovered	by	lawful	means.”		State	v.	St.	Yves,	2000	ME	97,	¶	18,	751	A.2d	

1018	 (quotation	 marks	 omitted).	 	 In	 determining	 whether	 to	 apply	 the	

inevitable	 discovery	 exception,	 we	 consider	 whether	 (1)	 the	 evidence	 could	

have	been	gained	lawfully	from	information	that	is	truly	independent	from	the	

warrantless	search;	(2)	the	evidence	inevitably	would	have	been	discovered	by	

such	lawful	means;	and	(3)	the	application	of	the	inevitable	discovery	exception	

neither	provides	an	incentive	for	police	misconduct	nor	significantly	weakens	

Fourth	Amendment	protections.		State	v.	Nadeau,	2010	ME	71,	¶	38,	1	A.3d	445	

(quotation	marks	omitted).			

      [¶24]	 	 Application	 of	 these	 factors	 in	 this	 case	 is	 straightforward.	 	 The	

officers	 had	 lawfully	 obtained	 the	 information	 that	 led	 them	 to	 believe	 with	
                                                                                                           15	

some	 certainty	 that	 the	 bags	 contained	 contraband.	 	 They	 obtained	 that	

information	 from	 their	 initial	 plain	 view	 observation	 of	 the	 bags,	 not	 an	

improper	search.		If	the	officers	had	merely	seized	the	bags—which	we	have	

established	was	lawful—they	inevitably	would	have	discovered	the	drugs	once	

they	obtained	the	search	warrant.10		See	id.			

        [¶25]	 	 Finally,	 we	 examine	 whether	 the	 application	 of	 the	 inevitable	

discovery	 exception	 in	 this	 instance	 would	 significantly	 weaken	 Fourth	

Amendment	 protections	 or	 provide	 an	 incentive	 for	 police	 misconduct.	 	 We	

conclude	that	it	would	not.		We	are	examining	here	a	very	narrow	intrusion	on	

the	 protections	 of	 the	 Fourth	 Amendment:	 officers	 who	 had	 lawfully	 seized	

translucent	 bags	 recently	 thrown	 from	 a	 window,	 who	 knew	 those	 bags	

contained	some	contraband,	promptly	inventoried	the	bags	instead	of	waiting	



   10		The	suppression	court	here	did	not	rely	on	the	inevitable	discovery	exception	in	order	to	admit	

the	 contents	 of	the	 bags,	 and	therefore	 did	 not	 make	 a	 finding	about	 whether	 the	 bags	 inevitably	
would	have	been	discovered	by	lawful	means.		However,	because	the	officers	had	seized	the	bags	and	
were	awaiting	a	search	warrant,	the	record	compels	the	finding,	by	a	preponderance	of	the	evidence,	
that	the	officers	would	have	inevitably	discovered	the	contents	of	the	bags.		See	State	v.	Storer,	583	
A.2d	1016,	1020	(Me.	1990).		In	Storer,	we	held	that	the	record	compelled	a	finding	that	drugs	would	
inevitably	 be	 discovered	 in	 very	 similar	 circumstances.	 	 Id.	 	 Officers	 had	 observed	 two	 bags	
containing	marijuana	outside	of	the	defendant’s	home.		Id.		The	first	bag	was	within	the	curtilage	of	
the	home,	and	the	second	bag	was	across	the	street.		Id.		The	officers	immediately	searched	both	bags.		
Id.		They	then	detained	Storer	while	seeking	a	warrant	on	the	basis	of	the	evidence	in	the	bags.		Id.		
The	warrantless	search	of	the	first	bag	was	improper,	but	the	search	of	the	bag	discovered	across	the	
street—outside	 of	 the	 constitutionally	 protected	 curtilage—was	 appropriate.	 	 Id.	 	 We	 held	 that	
because	the	officers	would	have	immediately	searched	the	first	bag	once	they	had	obtained	a	warrant	
on	 the	 basis	 of	 the	 bag	 discovered	 across	 the	 street,	 the	 first	 bag	 “inevitably	 would	 have	 been	
discovered	by	lawful	means.”		Id.	at	1020.	
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for	 a	 warrant	 to	 issue.	 	 There	 is	 no	 indication	 in	 this	 record	 that	 the	 officers	

intended	to	subvert	the	Fourth	Amendment’s	warrant	requirement,	and	there	

is	no	reasonable	concern	that	application	of	the	inevitable	discovery	exception	

in	this	instance	will	create	an	incentive	for	future	misconduct.		

B.	    Denial	of	the	Motion	to	Exclude	for	Discovery	Sanctions	

	      [¶26]		Sullivan	also	argues	that	the	court	erred	in	denying	his	motion	to	

exclude	 the	 testimony	 of	 a	 pharmacist	 because	 the	 State	 had	 only	 recently	

notified	 Sullivan	 that	 this	 pharmacist	 would	 testify	 in	 the	 place	 of	 another	

pharmacist	who	had	also	been	on	the	witness	list.		We	review	a	decision	not	to	

exclude	evidence	for	an	abuse	of	discretion.		State	v.	Dolloff,	2012	ME	130,	¶	30,	

58	 A.3d	 1032.	 	 “Only	 when	 the	 defendant	 can	 establish	 that	 the	 effect	 is	 so	

significant	as	to	deprive	him	of	a	fair	trial	will	we	vacate	on”	the	basis	of	any	

alleged	discovery	violation.		State	v.	Silva,	2012	ME	120,	¶	8,	56	A.3d	1230.			

       [¶27]	 	 Here,	 the	 pharmacist	 who	 testified	 had	 been	 on	 a	 witness	 list	

provided	 by	 the	 State	 to	 Sullivan	 early	 in	 the	 discovery	 phase,	 and	 Sullivan	

cross-examined	her	vigorously	at	trial.		On	this	record,	Sullivan	has	not	shown	

that	her	testimony	deprived	him	of	the	right	to	a	fair	trial.			

       The	entry	is:	

                      Judgment	affirmed.		
                                                                                   17	

	     	     	      	       	      	
	
John	W.	Tebbetts,	Esq.,	Smith	&	Associates,	Presque	Isle,	for	appellant	David	L.	
Sullivan	
	
John	M.	Pluto,	Asst.	Dist.	Atty.,	Prosecutorial	District	No.	8,	Caribou,	for	appellee	
State	of	Maine	
	
	
Aroostook	County	Superior	Court	docket	number	CR-2014-132	
FOR	CLERK	REFERENCE	ONLY	
