McFarlin v. State

GREENE, Judge. In this case we must determine whether a letter that Petitioner, Robert Lee McFarlin, wrote to his father from prison was wrongfully admitted into evidence at McFarlin’s trial for murder. To reach this determination, we must address whether the Maryland Correctional Adjustment Center (“MCAC”) seized the letter in violation of the Fourth Amendment of the United States Constitution. We shall hold that McFarlin’s constitutional rights were not violated and that his letter was properly admitted into evidence. ³⁹⁵ I. On February 3, 2004, McFarlin was serving a prison sentence at the Maryland House of Correction Annex (“MHCA”), 1 for convictions unrelated to this appeal.

On that date, McFarlin stabbed and killed fellow MHCA inmate, Damon Bowie. Because McFarlin killed Bowie, he was transferred from MHCA to MCAC, a “maximum level II” facility in Baltimore. According to the Maryland Institute of Correction’s 2007 Handbook, 2 a “maximum level II facility,” is a facility of “the highest security level for problem males who have shown a pattern of violence or institutional misconduct, or are very high escape risks.” Shortly after Bowie’s death, investigators sought and received a “mail cover” 3 for McFarlin, which directed mail room clerks at MCAC to photocopy McFarlin’s outgoing mail. The mail cover request was marked with an expiration date of March 4, 2004.

On April 13, 2004, McFarlin wrote a letter to his father that stated: “I done put myself in a deep hole, Pop. I killed someone in prison. I can’t explain it.” McFarlin placed his letter in an unsealed envelope pursuant to a MCAC rule and dropped the letter in the area designated for outgoing mail. 4 MCAC officials intercepted the letter, photocopied it, and provided a copy to State prosecutors. The State sought to introduce the letter into evidence at McFarlin’s trial for murder.

McFarlin moved to suppress the letter and a suppression hearing took place on February 3, 2005. ³⁹⁶ At the suppression hearing, various State employees testified about MCAC’s policies and regulations relating to inmate correspondence. The record reflects the following: 5 James Pegúese (“Warden Pegúese”), warden of the Annex and a former correctional officer at MCAC, was the first to testify. He stated that as of March 2000, all new inmates at MCAC received an inmate orientation manual and listened to an audio tape advising them of MCAC’s policies regarding incoming and outgoing mail. Warden Pegúese also stated that there was a Division of Corrections Directive in place at MCAC, which “advises MCAC would not handle the mail as all of the other institutions do.” He described MCAC’s regulations regarding outgoing mail as follows: [Warden Pegúese]: All correspondence being sent out of the institution by inmates was to be left unsealed for inspection prior to being sent out of the facility. [State]: And when you say “for inspection,” what does that mean? [Warden Pegúese]: Well, we check for a variety of things.

We check for contraband leaving the institution. We also check for content ... keeping in mind that these were the people that had been moved from other populations that were disruptive or created some disturbances or were violent in another population-we wanted to check to see whether or not there was correspondence going back and forth to one of the other institutions that might indicate that something was about to happen, or them giving directions to someone that something was about to happen. We checked for, as I mentioned, contraband, because in many instances they tried to make-they sent various items to political figures [sic] to the President. We also checked to make sure that no one was trying to make ³⁹⁷ contact with a victim, because we found that happened in several cases.

So it was a variety of things there. With regard to [McFarlin], Warden Pegúese stated his specific concerns as follows: [Warden Pegúese]: Well, yes. I wanted to determine whether or not there could be a possible retaliation; determine whether [Bowie’s death] was gang-affiliated or whether there was going to be other players involved ... [State]: And would monitoring [McFarlin’s] outgoing mail provide information that would satisfy any of those concerns? [Warden Pegúese]: It definitely could. In addition, Warden Pegúese stated that, “because of the type of inmate that was received at MCAC, [there] was reasonable cause to inspect all mail.” The next person to testify at the suppression hearing was Sergeant Donald Lane (“Sgt.

Lane”) of the Department of Public Safety, Internal Investigative Unit. He stated that on February 4, 2004, his unit requested a “mail cover” on [McFarlin]. Sgt. Lane described the procedure as follows: [Sgt.

Lane]: A mail cover is what we use as an investigative tool. Once we identify a suspect-or in a crime; [sic] not just homicides, but big assaults and other crimes-we place what we call a mail eover. What we do is we have a form and we fill it out and we present that to the Commissioner of Corrections. He has to approve it or disapprove it.

And then the mail cover request, what we do is we-just a brief narrative of what the situation is, what the crime is, and why we want the mail cover. We forward that to the Commissioner of Corrections. He approves it or disapproves it. When he approves it, we forward it to the institution that the inmate is being housed at.

And then what they do is they collect the mail, incoming and outgoing, photocopy it, and then pass it forward on to us, and we review it to see if there is any evidence or any mention of the crimes or [sic] the list, not ³⁹⁸ only the suspect, but other possible people that may be involved as well. [State]: Okay. And when you say they forward it on to you, “they” being the personnel in the Mail Department? [Sgt. Lane]: The personnel in the Mail Department, and there is usually an investigator at each institution, especially the larger institutions with maximum security inmates and medium security inmates. They have their own institutional investigators, which are actually correctional officers.

And that’s who we use, we pretty much deal with. And then the mailroom personnel are actually the ones that do the mail covers. They’re the ones that open the mail, copy it, and they put it into a file, and then either they fax it down to us, or we go and pick it up, or the investigative officer at the institution will contact us. In this case, the “investigative officer” in MCAC was Lieutenant Kim Wilson (“Lt.

Wilson”). Sgt. Lane further stated that “pursuant to ... internal policy,” he forwarded the mail cover request to the Commissioner of Corrections and it was subsequently approved. He stated: [Sgt.

Lane]: When I do a mail cover on cases I’m working on, I don’t put an end date, I put a start date. And then what I’ll do is I’ll contact the institution where the inmate is residing when I am finished, or when I have what I needed from the mail cover, and just verbally, you know, tell him to stop it, or ask him to stop the mail cover at that time. [State]: Okay. So when you personally institute a request for [sic] mail cover, it is your practice to not put an end date on it. You notify the institution when you want it to stop. [Sgt.

Lane]: That’s correct. [State]: Is that standard practice in your office? [Sgt. Lane]: Yes. Sgt. Lane also stated that, although he did not request an end date for the mail cover placed on [McFarlin], the ³⁹⁹ Commissioner of Corrections gave an end date of March 4, 2004.

Sgt. Lane stated, however, that he was not aware of the end date until he saw the document on April 21, 2004, after Lt. Wilson informed him about [McFarlin’s] letter. At that time, Sgt.

Lane requested another mail cover, without an end date, “and forwarded that to the Commissioner of Corrections.” This second mail cover was approved on April 28, 2004. Karen Gardner (“Gardner”), a mailroom clerk at MCAC, was the last person to testify. She stated that she has enforced over 50 mail covers and that “[m]ost of the time [a mail cover] does not have an expiration date.” With regard to the mail cover on [McFarlin], Gardner stated, “I thought it was indefinite. Because I have some that’s [sic] indefinite.” To explain the procedure for mail covers, she stated: [Gardner]: [The envelope is] already open.

So I just take the letter out. [Gardner]: Take it to the copier; copy it, with the envelope; put it back in its original form; seal it, stamp it, and send it to its destination, and give the copy to [Lt. Wilson], Gardner further stated that, beginning on February 4, she “started copying all incoming and outgoing correspondence that had [McFarlin’s] name on it” and that she processed the letter in question on April 13, 2004. Gardner also testified as follows: [State]: And from the time that you began the mail cover on [McFarlin] back in February, was there ever a time prior to you seeing this letter that anybody advised you to stop the mail cover? [Gardner]: No sir. [State]: So you continue until somebody tells you to stop, is that fair to say? [Gardner]: Yes. [State]: Nobody told you to stop on April 13th? ⁴⁰⁰ [Gardner]: No, sir. The Circuit Court denied McFarlin’s motion to suppress and admitted the letter into evidence.

In an unreported opinion, the Court of Special Appeals upheld the Circuit Court’s decision, holding that the Fourth Amendment right to privacy did not protect McFarlin’s letter from inspection. The intermediate appellate court reasoned that “an inmate in a maximum security correctional facility could expect an unsealed letter to be read, inspected, seized, or used as evidence in trial, even if he is not told that such actions would take place.” The intermediate appellate court also noted that due to the State’s legitimate security needs, MCAC officers were entitled to intercept McFarlin’s mail. In addition, the Court of Special Appeals rejected McFarlin’s contention that COMAR 12.02.20.04E 6 is unconstitutionally vague because the regulation does not explain or identify what kind of “clear evidence” is required to warrant the inspection of an inmate’s outgoing mail. Analyzing the regula ⁴⁰¹ tion under the void-for-vagueness doctrine, the intermediate appellate court concluded that the regulation passed the fair notice and enforcement criteria.

First, the Court of Special Appeals stated that it is “fairly ascertainable that ‘clear evidence’ relates to security and safety matters, as MCAC is a high security penal institution.” Then, the court determined that because COMAR 12.02.20.04 specifically applies only to inmates’ outgoing mail, the regulation is not so broad that it is likely be interpreted irrationally. McFarlin petitioned this Court for certiorari and we granted his petition to consider the following question: “Was it error to admit into evidence a letter sent from prison by Petitioner McFarlin to his father?” McFarlin v. State, 406 Md. 579 , 961 A.2d 553 (2008).

II

The State urges the Court to affirm the judgment of the Court of Special Appeals. Citing Thomas v. State, 285 Md. 458 , 404 A.2d 257 (1979), the State avers that this Court has already ruled that there is no Fourth Amendment Right to privacy in inmate mail. Moreover, the State argues that the principle recognized in Thomas , “that inmates do not have a Fourth Amendment right regarding their mail—or at least no right which trumps the security and penalogical needs of the institution—” is widely recognized. In addition, the State posits that to the extent the issue is preserved, COMAR 12.02.20.04E was not violated in this case.

The State points out that 12.02.20.04 expressly grants a warden the power to make decisions to open and inspect outgoing mail and that, because of the nature of MCAC and the inmates transferred to it, Warden Pegúese justifiedly determined there was reasonable cause to inspect McFarlin’s mail. Moreover, the State asserts that even if there was a violation of COMAR 12.02.20.04, a violation of a State regulation does not trigger the exclusionary rule. The State contends that the exclusionary rule is “applied exclusively to violations of the Fourth Amendment to the United States Constitution and not ⁴⁰² to COMAR violations” and as such, the relief that McFarlin seeks is “simply not available in the instant case.” Finally, the State avers that COMAR 12.02.20.04 is not vague and even it were, this is “fundamentally irrelevant” because a regulation “which is so vague as to be invalid cannot form the cornerstone of a Fourth Amendment expectation of privacy.” McFarlin argues that the judgment of the Court of Special Appeals should be reversed. He contends that it was error for the trial court to admit his letter into evidence.

McFarlin posits that a prisoner’s right to correspond is a fundamental right protected by the First Amendment and not merely a privilege. Moreover, McFarlin asserts that he had a Fourth Amendment right to privacy in the letter that he sent to his father and that MCAC’s seizure of the letter was unreasonable. McFarlin contends that he had an expectation of privacy in the letter that society is prepared to recognize as reasonable because he relied on MCAC’s policies pertaining to correspondence when sending the letter. Specifically, McFarlin maintains that although MCAC’s inmate manual instructed inmates not to seal any outgoing correspondence, the manual did not indicate that outgoing correspondence was subject to being read or inspected for content.

McFarlin avers: It was not “reasonable” for the State prison system to ... give notice to inmates of policies restricting the State’s use of the content of mail, thereby, inducing inmates to rely upon a reasonable and limited expectation of privacy created by those policies, and then search letters for incriminating statements as to past crimes, at least, in the absence of a valid Order from the Commissioner, based on a showing of good cause. McFarlin also renews his argument that COMAR 12.02.20.04E did not justify the State’s action of unconstitutionally seizing his letter to his father. McFarlin asserts that the regulation is void-for-vagueness because it does not specify what type of clear evidence, or clear evidence of what kind of activity, is required to inspect an inmate’s mail. ⁴⁰³ III. A. Standard of Review In reviewing a circuit court’s grant or denial of a motion to suppress evidence, we ordinarily consider only the evidence contained in the record of the suppression hearing.

The factual findings of the suppression court and its conclusions regarding the credibility of testimony are accepted unless clearly erroneous. We review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party. We undertake our own constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case. Rush v. State, 403 Md. 68, 82 , 939 A.2d 689, 697 (2008) (citations omitted).

B. Fourth Amendment Analysis We hold that MeF’arlin’s constitutional rights were not violated when MCAC inspected McFarlin’s letter to his father and provided a copy of the letter to State officials. Accordingly, we hold that the suppression court did not err in denying the suppression motion. Initially, we conclude that McFarlin did not have an expectation of privacy in his letter to his father that was objectively reasonable. Alternately, we conclude that under our holding in Thomas , even if we were to assume that McFarlin had an objectively reasonable expectation of privacy in his letter to his father, MCAC’s seizure of the letter did not violate McP’arlin’s Fourth Amendment rights because the seizure was justified by MCAC’s legitimate concern for security.

The P’ourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Fourteenth Amendment to the United States Constitution makes the protections of the Fourth Amendment applicable to the States. Paulino v. State, 399 Md. 341, 349 , 924 A.2d 308, 313 (2007). To invoke the protections of the Fourth Amendment, ⁴⁰⁴ an individual bears the burden of demonstrating that he or she had “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, 226 (1979). In Laney v. State, 379 Md. 522, 545 , 842 A.2d 773, 786-87 (2004), we explained that this burden consists of two inquiries: “(1) whether the individual has a subjective expectation that his or her property or possessions will not be searched, and (2) whether the expectation is objectively reasonable under the circumstances.” Accord Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507, 516 , 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring) (noting that there is a “twofold requirement” to invoke the protection of the Fourth Amendment: “first ... a person [must] have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable”).

A defendant demonstrates a subjective expectation of privacy by showing that he or she sought “to preserve something as private.” Whiting v. State, 389 Md. 334, 349 , 885 A.2d 785, 793 (2005) (quoting Smith, 442 U.S. at 740 , 99 S.Ct. at 2580 , 61 L.Ed.2d at 226 ). To establish that the subjective expectation of privacy was objectively reasonable, a defendant must demonstrate that the law is prepared to recognize the expectation as “legitimate.” Rakas v. Illinois, 439 U.S. 128, 148 , 99 S.Ct. 421, 433 , 58 L.Ed.2d 387, 404 (1978) (noting that an objectively reasonable expectation of privacy is “more than a subjective expectation of not being discovered”). Whether the law recognizes an expectation of privacy as legitimate varies by context and can “depend on an individual’s relationship with the State.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 , 115 S.Ct. 2386, 2391 , 132 L.Ed.2d 564, 575 (1995).

As a