dissenting.
[¶ 34] I respectfully dissent from Part II.D of this opinion, in which the majority affirms the trial court’s decision to exclude DNA evidence that semen found in the victim’s vagina did not belong to the victim’s husband. Although I concur in the rest of the opinion, I write also to express my concern over Part II.C, in which the majority affirms the suppression court’s decision to deny Drewry’s motion to suppress evidence obtained from the search and seizure of his bags.
A. Part II.C
[¶ 35] Officers in this case seized Drewry’s bag from the shelter in which he was staying and held it, unopened, in the police evidence lab. Almost exactly two days after the seizure, a warrant to search the bag was applied for and obtained. I agree with the majority that the Superior Court properly denied Drewry’s motion to suppress the evidence found in the bag, but this two-day delay concerns me.
[¶ 36] We have held that only a search warrant obtained “a reasonable time after the seizure of the property” is valid. Adams v. Allen, 99 Me. 249, 252, 59 A. 62, 63 (1904). It follows that if the warrant is obtained an unreasonable time after the seizure, the warrant is unauthorized and void. See id.) State v. Riley, 86 Me. 144, *992146-47, 29 A. 920, 920 (1893). What is a reasonable time is determined by the officer’s use of due diligence and the facts of the case. Weston v. Carr, 71 Me. 356, 358 (1880).6
[¶ 37] The U.S. Supreme Court has also addressed the standard to determine whether a delay between seizure and obtaining a warrant is reasonable. United States v. Van Leeuwen, 397 U.S. 249, 253, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). The Van Leeuwen court, and at least one federal circuit, have looked to the facts of the case to determine whether a delay was reasonable or not. See id.; United States v. Hernandez, 313 F.3d 1206, 1212 (9th Cir.2002). Also important is whether the delay was the result of bad faith on the government’s part. See United States v. Yi 1992 U.S.App. Lexis 26387, at * 10 (9th Cir. Oct. 9,1992).
[¶ 38] Given the record before us, I cannot say that there was either an unreasonable delay or bad faith on the part of the State. The fact that the police waited to open Drewry’s bag until they obtained a search warrant is evidence that supports the trial court’s decision to deny Drewry’s motion to suppress. See State v. Alley, 2004 ME 10, ¶ 13, 841 A.2d 803, 807. For this reason, I concur in Part II.C.
[¶ 39] I write to express my concern, and to caution that warrants ought to be sought as expeditiously as possible, both to ensure the rights of individuals and the government’s interest in successfully prosecuting crimes.
B. Part II.D
[¶ 40] The Superior Court clearly erred in excluding from evidence the fact that the semen found in the victim’s vagina did not belong to her husband. I am mindful of the purpose of M.R. Evid. 412 to protect the victim against irrelevant and hurtful insinuations of her promiscuity. In this case, however, the excluded evidence would have served a legitimate purpose.
[¶ 41] M.R. Evid. 412 allows the admission of “the alleged victim’s past sexual behavior” if offered “by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury.” At trial, Drewry defended the charge by claiming that there was an unidentified third party who assaulted the victim. Evidence was presented regarding the existence of this third party, as well as the victim’s poor relationship with her husband. From this evidence, the majority contends, the jury could “infer that the semen did not belong to [the victim’s husband], but rather to some third person.” By excluding this evidence, the court prevented Drewry from turning this inference into a positive, undeniable fact. This is the difference between circumstantial and direct evidence, and is therefore substantial. Its exclusion should not be approved.
[¶ 42] Beyond the bare language of M.R. Evid. 412, we have sources to guide us. First, the February 1, 1983, Advisory Committee Note to Rule 412 provides that “[t]he danger in the admission of ... evidence [of a victim’s past sexual behavior] is the likelihood that it will provoke moral and emotional reactions in the trier of fact increasing the risk of unfair prejudice.” M.R. Evid. 412 advisory committee’s note, *993Field & Murray, Maine Evidence at 179 (2000 ed. 1999). In this case, evidence was introduced to establish that the victim left home on the evening in question to find drugs and was under the influence of drugs such that she could not remember portions of the evening. Evidence was also presented to create the inference that the semen did not belong to the victim’s husband. Given this evidence, confirmation to the jury that the semen indeed was not that of the victim’s husband would be highly unlikely to provoke additional moral or emotional reactions.
[¶43] The Advisory Committee Note also states that “[t]he word ‘past’ in Rule 412 refers to occasions prior to trial and other than the occasions involved in the charges, whether prior or subsequent thereto in time.” Id. at 180. The evidence that was suppressed would point to the victim’s sexual behavior during the occasion involved in the charge, because it would point to her behavior on the evening of, and indeed at the same time as, the assault of which Drewry is accused. Rule 412 does not, therefore, govern the admission or exclusion of the evidence in question. This makes sense because Rule 412 was designed to prohibit “evidence of [a] victim’s prior sexual activities to show she had the propensity to engage in consensual sex.” State v. Cormier, 2003 ME 154, ¶ 18, 838 A.2d 356, 360. The evidence Drewry proposed to admit would show not promiscuity, but an alternative assailant.
[¶ 44] In addition to allowing evidence of past sexual behavior of the alleged victim to show that the accused was not the source of semen or injury, Rule 412(b)(3) allows such evidence where “exclusion of [the evidence] would violate the constitutional rights of the defendant.” This exception “stem[s] from a defendant’s constitutional right to effectively cross-examine and to present a proper defense.” State v. Robinson, 2002 ME 136, ¶ 13, 803 A.2d 452, 457. We have also said that the defendant must be “afforded a meaningful opportunity to present a complete defense.” State v. Warren, 1998 ME 136, ¶ 9, 711 A.2d 851, 855. One way to present a complete defense, and a way that is allowed under Rule 412, is to “generate doubt as to [the defendant’s] participation in abuse,” even where that evidence involves “inquiry into any evidence of other abuse.” See State v. Jacques, 558 A.2d 706, 708 (Me.1989).
[¶ 45] The majority holds that Drewry was able to generate the inference of an alternative assailant by suggesting that the victim had sexual intercourse with a third party on the night in question, but that Drewry was prohibited from establishing the undeniable fact of a third party by showing in fact that the victim had such sexual intercourse. In so doing, the majority is affirming the trial court’s denial of Drewry’s constitutional right to present a complete defense. Under Rule 412, this affirmation is an error.
[¶ 46] Evidence that is admissible under Rule 412 must also be admissible under M.R. Evid. 403. Rule 403 operates to exclude relevant evidence
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
[¶ 47] The evidence of the presence of a third party’s semen is probative of the existence of an alternative assailant. The ability to establish with certainty that third party’s existence is thus highly relevant to Drewry’s defense. By relieving the jury of its need to infer the existence of a third party, this evidence would establish the third party as fact, thus lessening the likelihood that the jury would be mis*994led. The majority suggests that the evidence that was presented is enough to raise the inference of an alternative assailant, but evidence of a third party’s semen is substantially different, because it changes inference to fact, and circumstantial evidence to direct evidence. The introduction of this evidence would therefore not be cumulative.
[¶ 48] The danger of unfair prejudice, which must be balanced against the probative value of the evidence in a Rule 403 analysis, is that the victim would have been cast as promiscuous. If one act of sexual conduct with a person not one’s spouse would cast that person as promiscuous, then the Superior Court, in allowing the evidence that the majority recites, successfully cast the victim in this case as promiscuous. Evidence of the semen in question would not have worsened any prejudice the jury might have had against her.
[¶ 49] Even if there is some danger of prejudice in introducing the evidence in question, that danger must substantially outweigh the probative value. M.R. Evid. 408. In this case, Drewry’s constitutional right to introduce evidence highly probative of his legitimate defense of an alternative assailant is not substantially outweighed by the low likelihood that the evidence would create unfair prejudice against the victim.
[¶ 50] For the above reasons, I dissent from the majority’s holding in Part II.D. The Superior Court’s exclusion of the evidence in question was not harmless error because it affected Drewry’s constitutional rights and may have affected the jury’s verdict. See State v. Dyer, 2007 ME 118, ¶ 28, 930 A.2d 1040, 1046; Shaw v. Packard, 2005 ME 122, ¶ 13, 886 A.2d 1287, 1290. I would therefore vacate and remand for a new trial.
. In Weston, we also wrote that “when no sufficient reason is given for longer delay, we think it should not exceed twenty-four hours from the time of seizure." Weston v. Carr, 71 Me. 356, 358 (1880). Clearly times have changed since 1880; populations have grown as have the burdens on the court system. I do not, therefore, hold to Weston’s twenty-four hour declaration. My concern in the case before us does, however, arise in part from that holding.