State v. DunnState v. Dunn
- Reporters:
- Before:
- Norris, Marvin, Jasper E. Jones
The defendant, Jerry Dunn, Jr., was charged with two counts of introduction of contraband into a parish jail,
FACTS
On December 18 and 19, 1984, the defendant was an inmate in the Claiborne
The deputy waited until the inmates had been served breakfast and then collected all the outgoing mail from the cellblock. The entire post consisted of two letters from the defendant. The deputy inspected both pieces in his office; one letter, addressed to the defendant‘s wife Veronica Dunn, contained a one hundred dollar bill. The letter accompanying it detailed a plan to smuggle marijuana into the jail; apparently the money was earmarked for the drug purchase.
After consulting the D.A.‘s office, the deputy retained the one hundred dollar bill, replaced it with another, sealed the envelope and mailed it. The plan outlined in the letter was to be implemented on Sunday, December 23. At the appropriate time, Claiborne Parish deputies were in position to frustrate the smuggling scheme.
On December 23, during visiting hours, Veronica Dunn arrived at the jail with a paper sack. While she met with the defendant, the deputies inspected the sack and found its contents to correspond to the instructions of the intercepted letter. Specifically, it contained a plastic container full of baby powder, with a small plastic sack of marijuana hidden inside. The defendant‘s letter had instructed Veronica Dunn to conceal the contraband in precisely this manner.
DISCUSSION
In his one assignment of error, Dunn claims the prison official violated his right against unreasonable searches and seizures by opening his sealed letter.
In the recent case of Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the United States Supreme Court was confronted with the question of whether a prison inmate had any reasonable expectation of privacy in his prison cell, entitling him to the fourth amendment‘s protection against unreasonable searches and seizures. The Fourth Circuit Court of Appeals had held that an inmate has a “limited privacy right” within his cell, entitling him to protection against searches and seizures that are conducted solely to harass or humiliate. 697 F.2d 1220.
The Supreme Court flatly concluded that an inmate has no reasonable expectation of privacy inside his cell. The court‘s analysis began with the recognition that prisoners are not automatically deprived of constitutional protections. The court cited the religious freedom of the first amendment, as outlined in Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam), and the freedom from cruel and unusual punishment of the eighth amendment, as outlined in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), among others.
The court explained, however, that prisoners necessarily lose many protections of the constitution.
These constraints on inmates, and in some cases a complete withdrawal of certain rights, are “justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948); see also Bell v. Wolfish, supra, 441 U.S. [520], at 545-546, 99 S.Ct. [1861], at 1877-1878 [60 L.Ed.2d 447 (1979).] and cases cited; Wolff v. McDonnell, supra, 418 U.S. [539], at 555, 94 S.Ct. [296] at 2974 [41 L.Ed.2d 935 (1974).]. The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of “institutional needs and objectives” of prison facilities, Wolff v. McDonnell, supra, at 555, 94 S.Ct. at 2974, chief among which is internal security, see Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction. ___ U.S. at ___, 104 S.Ct. at 3198-99, 82 L.Ed.2d at 401-402.
The court proceeded to analyze the fourth amendment rights alongside the paramount governmental and societal interests at stake in the maintenance of prisons.
The applicability of the Fourth Amendment turns on whether “the person invoking its protection can claim a `justifiable,’ a `reasonable,’ or a `legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979), and cases cited. We must decide, in Justice Harlan‘s words, whether a prisoner‘s expectation of privacy in his prison cell is the kind of expectation that “society is prepared to recognize as `reasonable.‘” Katz, supra, 389 U.S., [347] at 360, 361, 88 S.Ct. [507], at 516, 517 [19 L.Ed.2d 576 (1967).] (concurring opinion).
Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.
Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct.
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Within this volatile “community,” prison administrators . . . must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize.
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[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner‘s expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is accepted by our society that “[l]oss of freedom of choice and privacy are inherent incidents of confinement.” Bell v. Wolfish, 441 U.S., at 537, 99 S.Ct., at 1873. ___ U.S. at ___, 104 S.Ct. at 3198-3201, 82 L.Ed.2d at 400-404 (footnotes omitted)
The Supreme Court approved random searches of inmates, individually or collectively, and of their cells and lockers, as valid and necessary to the effective security of penal institutions. The court specifically rejected the argument that searches
We conclude that the rationale of Hudson v. Palmer is equally applicable to the instant case. The sending of mail that plots to introduce contraband into the prison subverts the same governmental interests that are protected in Hudson. The inspection and opening of mail is of obvious utility in protecting those interests. The warrantless search, therefore, was valid.
We are cognizant of earlier federal decisions which found a limited right of privacy in inmate letters. See Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I.1970); United States v. Savage, 482 F.2d 1371 (9th Cir.1973). We feel, however, that the Supreme Court‘s announcement of valid government policies and procedures in Hudson is sufficient to justify us in abandoning these cases. We are also cognizant of the considerable jurisprudence holding that inmate mail may be censored for the furtherance of a substantial government interest such as security or discipline. See Frazier v. Donelon, 381 F.Supp. 911 (E.D. La.1974); Guajardo v. Estelle, 580 F.2d 748 (5th Cir.1978). We feel that if complete censorship is permissible, then the lesser included act of opening the mail and reading it is also permissible. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Feeley v. Sampson, 570 F.2d 364 (1st Cir.1978).
Even if we were to extend to this defendant a greater right of privacy in his letter than he has in his cell, we would be able to find that the circumstances leading to the search created a reasonable suspicion directed at the prisoner, Dunn. A theft was alleged. Theft is a crime, even within prison walls,
We note that under similar circumstances, the Pennsylvania Superior Court held that an allegation of theft of $500 was sufficient to create a reasonable suspicion and justified a warrantless search of all the inmates in a large cell. Commonwealth v. Wallington, 238 Pa.Super. 427, 357 A.2d 598 (1976).
We hold that defendant had no right of privacy under the fourth amendment of the United States Constitution or under
CONVICTION AND SENTENCE AFFIRMED.
Notes
LSA-R.S. 14:402 C provides, in pertinent part:
It shall be unlawful to possess or to introduce or attempt to introduce into or upon the premises of any municipal or parish prison or jail or to take or attempt to take or send therefrom any of the following articles which are hereby declared to be contraband for the purpose of this Section, to wit: any currency or coin which is legal tender,
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any narcotic or hypnotic or excitive drug or any drugs or whatever kind or nature, including nasal inhalators of any variety, sleeping pills or barbiturates of any variety that create or may create a hypnotic effect if taken internally, or any other controlled dangerous substance as defined in R.S. 40:961, et seq.;
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Whoever violates any provision of this Subsection shall be imprisoned with or without hard labor for not more than five years.
LSA-Const. art. 1 § 5 provides:
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.