Com. v. Moore

928 A.2d 1092

COMMONWEALTH of Pennsylvania, Appellant v. Emmanuel MOORE, Appellee.

No. 1390 EDA 2006.

Superior Court of Pennsylvania.

Argued March 27, 2007.

Filed July 12, 2007.

Peter Carr, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Dennis J. Cogan, Philadelphia, for appellee.

BEFORE: FORD ELLIOTT, P.J., GANTMAN, J., and McEWEN, P.J.E.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Philadelphia County Court of Common Pleas, which granted a motion to suppress the Commonwealth's evidence on behalf of Appellee, Emmanuel Moore.¹ The Commonwealth asks us to determine whether, as a prisoner, Appellee can claim a constitutional right to privacy in his non-privileged prison mail. We hold Appellee has no constitutional right to privacy in his non-privileged prison mail. Accordingly, we reverse the trial court's suppression order and remand for further proceedings.

¶ 2 The trial court opinion sets forth the relevant facts of this case as follows:

On December 3, 2004, Lt. Raymond Knauer of the Internal Security Department (hereinafter, "Security Office") of the Department of Corrections at Graterford was contacted telephonically by Philadelphia Homicide Detective John Keen regarding an inmate at SCI-Graterford, [Appellee Emmanuel Moore].[²] Detective Keen . . . asked that Lt. Knauer copy all incoming and outgoing mail of [Appellee] because they were looking for [Moore's] brother, [Ronald Bethea ("Bethea")], to arrest him for the September 16, 2004 murder of one Dante Jones and injury of Anthony Hall. Detective Keen wanted to get copies of [Appellee's correspondence to locate Bethea]. Lt. Knauer directed Detective Keen to submit his request in writing, setting forth the facts that had been conveyed to [Lt. Knauer] regarding the need for the mail intercepts, and the Detective did so. [Lt. Knauer] advised Detective Keen that he would have to first secure authorization from Regional Deputy Secretary Donald T. Vaughn because any request that mail be read and reproduced required his approval.

On December 3, 2004, Lt. Knauer submitted to Regional Deputy Secretary Vaughn a "Request for Mail Scrutiny" requesting "[s]crutiny of non-privileged incoming and outgoing mail for [Appellee, pursuant to] DC-ADM 803, Section VI.D 1, paragraph c." In support of that request, [Lt. Knauer] indicated that "[t]here is reason to believe that: Security may be impaired in that this inmate may be using this directive to conduct Criminal Activity."

* * *

Regional Deputy Secretary Vaughn authorized the "scrutiny" of [Appellee's] mail on December 3, 2004, . . . and every 30 days thereafter based on [Lt. Knauer's] continuing requests, which did not at any time contain new or additional information other than what had been initially submitted by Lt. Knauer's initial request to scrutinize [Appellee's] mail on December 3, 2004.

After the approval from the Regional Deputy Secretary was received, the mailroom was notified. The mailroom pulled the mail for the Security Office; this mail did not include privileged mail. After making copies of the non-privileged mail, the mail continued on its course. On [Lt. Knauer's] copies of the mail, [he] noted whether it was incoming or outgoing, and the date he scrutinized it. He received copies of the contents as well as of the envelopes the mail came (or went) in. He made notations as to the addressee/return address of the scrutinized mail. Lt. Knauer usually faxed or mailed the copied material to [homicide detectives].

[Bethea] was taken into custody on December 8, 2004. Investigative leads from two items of mail received by the Detectives from [Lt. Knauer] did assist in locating [Bethea] in Wilmington, Delaware.

(Trial Court Opinion, filed August 7, 2006, at 2-4) (emphasis in original) (internal citations omitted). Appellee and his acquaintances employed codes to conceal their messages. They also used blank lines to conceal names; for instance, they used "T ___" or "____" to conceal the name "Tone," a common nickname for Anthony.

¶ 3 On May 5, 2006, the Commonwealth filed a motion in limine seeking admission of the letters obtained pursuant to Lt. Knauer's efforts. The Commonwealth argued the letters demonstrated Appellee and Bethea's objective to prevent Anthony Hall from presenting inculpatory evidence at trial. Anthony Hall was released from custody sometime in January 2005. On March 9, 2005, Hall asserted his Fifth Amendment privilege when called to testify at a preliminary hearing. On May 17, 2005, he recanted his statements identifying Appellee and Bethea; following his recantation, Hall eluded service of process. The Commonwealth concluded the letters obtained by Lt. Knauer demonstrate an objective to compel Hall's silence by threat of force.

¶ 4 On May 9, 2006, Appellee filed a motion for an evidentiary hearing to determine the extent to which scrutiny of his letters violated the attorney-client and work product privileges. On May 11, 2006, Appellee filed a motion to suppress his mail and its evidentiary fruits. Generally, Appellee conceded prisoners have no constitutional protection from searches in furtherance of legitimate prison security concerns. However, Appellee argued prisoners enjoy constitutional protections from searches initiated to pursue criminal investigations unrelated to security concerns. When prison officials seized and copied his mail at the request of detectives investigating a murder, they violated his constitutional rights. Appellee concluded the letters and their evidentiary fruits should be suppressed because they were obtained without a warrant, in violation of his constitutional rights.

¶ 5 The hearing on the parties' pre-trial motions continued for three (3) days, May 15-18, 2006. Appellee and Bethea did not present evidence at the hearing to support the motion to suppress. On the first day of the suppression hearings, Lt. Knauer testified that all inmates receive a prison handbook which states "[a]ll mail coming into the State Correctional Institution is opened and inspected for contraband." (N.T. Suppression Hearing, 5/15/06, at 45). The handbook directed prisoners to administrative policy directive DC-ADM 803, which further explains the prison's mail handling policy. (Id. at 89). Lt. Knauer made copies of the original letters, which were sent "to their destination; whether it's incoming, they would go to [Appellee]; if they were outgoing, . . . the letters would be sealed and sent on their destination." (Id. at 54).

¶ 6 On May 18, 2006, the suppression court issued a memorandum, which included the following conclusion of law:

Because [Appellee's] non-legal incoming and outgoing mail was seized, scrutinized and copied at the instigation of non-prison officials for non-institutional reasons, these actions violated [Appellee's] rights pursuant to not only Article 1, [Section] 8 of the Pennsylvania Constitution, but even of the Fourth Amendment of the United States Constitution. A search warrant would have been necessary for Detectives ... to obtain the evidence they sought, had they even been able to gather the requisite probable cause. Accordingly, all of [Appellee's] mail . . . is hereby ordered suppressed.

(Trial Court Memorandum, filed May 18, 2006, at 3) (emphasis in original). That same day, the Commonwealth filed a timely notice of appeal and voluntarily filed a concise statement of matters complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

¶ 7 The Commonwealth presents the following issues for review:

DO PRISON INMATES HAVE A SOCIETALLY SANCTIONED PRIVACY INTEREST IN THEIR NON-LEGAL MAIL?

IF SO, DID [APPELLEE] DEMONSTRATE A SUBJECTIVE EXPECTATION OF PRIVACY IN HIS PRISON CORRESPONDENCE, WHICH CONTAINED CODED REFERENCES TO DRUG ACTIVITY AND EFFORTS TO CONTACT THE EYEWITNESS TO THE INSTANT MURDER?

(Commonwealth's Brief at 2).

¶ 8 In its first issue on appeal, the Commonwealth argues the text of Article 1, Section 8 of the Pennsylvania Constitution is substantially identical to the text of the Fourth Amendment of the United States Constitution. (Id. at 25). Pennsylvania courts have not interpreted Article 1, Section 8 of the Pennsylvania Constitution to confer farther-reaching rights than the Fourth Amendment. To date, the United States and Pennsylvania Constitutions have been held to provide co-extensive protections to inmates in their non-privileged incoming and outgoing mail.

¶ 9 The Commonwealth further contends prison officials inspect non-privileged mail for physical contraband. Information contained in the text of prisoner mail constitutes a type of contraband, specifically, communication in furtherance of criminal objectives occurring inside and outside prison walls. Thus, in consideration of penal security, society does not recognize an inmate's privacy interest in his non-privileged mail. The identity of the party investigating an inmate's mail, the motive for the investigation, the status of the inmate (pre-trial detainee or convict), and the absence of a search warrant are immaterial, because prisoners enjoy no objective, societally-sanctioned privacy interest in their non-privileged mail.

¶ 10 In the alternative, the Commonwealth avers Appellee and his acquaintances used coded references and avoided specific names, demonstrating an effort to conceal their dialogue. Such effort indicated they had no subjective expectation that their correspondence would remain private. Thus, Appellee's coded references belie his assertion of a subjective expectation of privacy. The Commonwealth concludes the court's suppression order should be reversed. We agree.

¶ 11 The following principles guide our analysis of the Commonwealth's issues:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the...