Thomas v. State

Wilner, J., delivered the opinion of the Court. Larry Hugh Thomas was convicted of rape and battery. He was sentenced to life imprisonment for the rape and a consecutive term of 10 years for the battery. On appeal, he complains that: (1) Evidence (a house key) obtained as the result of his arrest on an unrelated charge should have been suppressed; (2) An incriminating letter that he wrote, while incarcerated at the Howard County Detention Center, to another inmate at that Center was unlawfully seized and should have been suppressed; and (3) The court erred in convicting him of both rape and battery, and in imposing consecutive sentences for those convictions.

(1) Suppression of the Key Shortly after 6:00 p.m. on April 25, 1976, two women had their pocketbooks stolen from an establishment in Columbia known as the Slayton House. From a description given by one of the women and a witness who had seen a man carrying a pocketbook out of the Slayton House, a broadcast was put out on a police radio, advising the police, to be on the lookout for a larceny suspect described as a Negro male, eighteen years old, approximately 5'8" tall, having a moustache, wearing red pants and a red and white striped shirt, and appearing to be intoxicated. Shortly after hearing that broadcast, Officer Charles Gable observed a person matching that description enter a grocery store. When the person, who turned out to be appellant, left the store, Gable accosted him and “asked him to come with me up to the Slayton House, which he agreed to do.” Gable escorted appellant to the Slayton House in the patrol car, reading him the Miranda warnings on the way.

When they ²¹⁹ arrived, one of the witnesses identified appellant, whereupon he was formally arrested, charged with petty larceny, and taken to police headquarters. There, he was searched, and among other items taken from him was a silver-colored key. For purposes of identification, Officers Dennis L. Pruitt and Charles M. Gable scratched their initials onto the key — “DLP” and “CMG”. Appellant was then transported to the County Detention Center, from which he was released the next day.

A key was returned to appellant upon his release. 1 Around 11:00 on the following evening (April 26), Ms. S, the rape victim, left her home in Columbia to get a bite to eat. Finding the restaurant closed, she was returning to her car on the parking lot when two men approached her. After a short innocuous conversation, one grabbed her pocketbook and threw it to the other, who took off with it and apparently has not been heard from since. The other man grabbed her hand and, placing his other hand in his pocket so as to make it appear to Ms. S that he had a gun, led her to a wooded area near the Interfaith Center.

There, keeping her in fear of her life, he raped her once and tried, without success, to rape her again and to perform various unnatural sex acts upon her. He also struck her several times in the face. Following this, he led her to another area about fifty feet away where he threw her to the ground, choked her, and beat her severely across the face with a stick and a vacuum cleaner wand. As a result, her face was a bloody mess, and her nose was broken.

When the attack was over, the assailant departed, Ms. S stumbled to a nearby apartment house, and the police were called. Officer John Martin arrived and made a search of the areas where the attack occurred. In addition to recovering some of Ms. S’s clothing that had been left behind, he found ²²⁰ a stick and a key — a silver-colored key that had scratched on it the initials “DLP” and “CMG”. Corporal Mark Paterni, one of the officers assigned to investigate the rape, noticed the key back at the police station, as well as the markings on it, learned in some manner (not disclosed in the record) of Officer Pruitt’s connection with the key, spoke to Pruitt and presumably learned from him of appellant’s connection with the key, and, based upon that information, obtained an arrest warrant for appellant.

Paterni and several other officers, including Detective R. W. Roby, made the arrest at appellant’s home. Roby took the key with him, and found that it unlocked the front door of appellant’s home. At trial, the key was admitted into evidence. Appellant claims that the key should have been suppressed because it was the product of his arrest on April 25, which, he says, was unlawful.

He argues that the earlier arrest was unlawful because (i) it was effected without benefit of a warrant, and (ii) the crime, a misdemeanor, was not committed within the presence of the arresting officer. Thus, he argues, the key was initially seized from him and marked improperly, that it therefore represents “fruit of the poisonous tree”, and is constitutionally excludable as evidence under the doctrine announced in Wong Sun v. United States, 371 U. S. 471 (1963). The simplest answer to this contention is that there was nothing unlawful about appellant’s earlier arrest. It was fully authorized by Md. Annot.

Code art. 27, § 594B. Subsection (d) thereof allows a police officer to arrest a person without a warrant if he has probable cause to believe: (1) That an offense listed in subsection (e) of this section has been committed, and (2) That the person has committed such offense, and (3) That unless the person is immediately arrested, (i) He may not be apprehended, or (ii) He may cause injury to the person or damage to the property of one or more other persons, or (iii) He may tamper with, dispose of, or destroy evidence.” ²²¹ One of the offenses listed in subsection (e) is a violation of art. 27, § 341 —- stealing goods worth less than $100. Appellant has not claimed that Officer Gable was without probable cause to effect the arrest; and indeed, at oral argument it was conceded that such probable cause did exist. The police radio broadcast, coupled with his own observations, afforded Officer Gable with probable cause to believe that (1) the offense of petty larceny had been committed, (2) the person he saw enter the grocery store, namely, appellant, committed the offense, and (3) unless immediately apprehended, the suspect might, at the very least, dispose of evidence (the fruits of the larceny) or possibly escape altogether.

See Bosley v. State, 14 Md. App. 83 (1972). The arrest being lawful, the Wong Sun “doctrine” is inapplicable, and the key was therefore admissible. Even if, arguendo, the prior arrest had been unlawful, Wong Sun would not apply for other reasons. The key was returned to appellant when he was released from jail.

It was not used against him in a prosecution of the crime for which he was arguably arrested unlawfully; nor did it lead to any other evidence as to that crime or any other crime that appellant had then committed. The key was found, independent of the prior arrest, at the scene of another crime committed after the taint of any illegality had been washed away. Its discovery there was not the product of the earlier arrest. In short, if the tree (the earlier arrest) was poisonous, it died without bearing fruit.

(2) Suppression of the Letter After his arrest for the rape and battery, appellant found himself back in the Howard County Detention Center. There, on or about August 17,1976, while awaiting trial, he handed a sealed envelope to Correctional Officer Daniel Heyn. The envelope was addressed to a Herb Robinson, another inmate at the Detention Center. Heyn gave the envelope to his supervisor, Mr. Gamber, who opened the envelope and found that it contained a letter that included statements incriminating to appellant.

Gamber gave the letter to Mr. ²²² Hobbs, his supervisor. Hobbs gave the letter to the director of the Detention Center, Mr. McClellan, who, in turn, directed that it be turned over to the State’s Attorney. The letter was, in fact, given to the State’s Attorney. Appellant moved to suppress the letter as evidence on the ground that it was a “privileged communication” that was “illegally seized by a prison official against the wishes of the Defendant, and without any form of waiver on the part of the Defendant”.

He asserted in his pre-trial motion that, although such officials may have the authority to open prisoner mail in order to insure the security of the facility, they have no authority to open such mail “where the sole purpose is to read the contents thereof.” At a hearing held on the suppression motion, Mr. McClellan described the regulations pertaining to prisoner mail. These regulations, he said, were set forth in a letter that was posted on the walls or bulletin boards of the Center. The letter says nothing specifically about intra-facility mail from one inmate to another, but does provide that (1) all “outgoing inmate mail” may be sealed, (2) all “incoming mail will be opened for inspection before delivery to the inmate”, (3) “incoming mail will be inspected for contraband and subject to additional review to determine appropriateness”, and (4) such mail will be returned to the sender if it is inflammatory, advocates escape, violence, disorder, or assault, directly or indirectly threatens the security, safety, or order of the institution or its personnel, or contains coded or otherwise undecipherable language. Mr. McClellan amplified this by stating that his correctional officers “should inspect all packages or parcels being handed from one inmate to another, which would include letters or contraband or anything of a serious nature that might be detrimental to the security of the institution.” Specifically with respect to letters, he said that “what is inside of the letter could possibly be contraband and the only way we could determine that is to look and see.” Following this, appellant testified that he had given a letter, written by him, to a correctional officer, and that he had not given anyone permission to read that letter.

Upon this ²²³ evidence, the motion to suppress was denied; and, as a result, the letter was produced and admitted into evidence at trial. 2 In reviewing the pre-trial decision on the suppression motion, we must consider the inter-play between the First Amendment right of free speech and the Fourth Amendment guarantee against unreasonable searches and seizures. We start with Stroud v. United States, 251 U. S. 15 (1919), one of the plethora of cases involving the now late but still famous “birdman of Alcatraz.” Stroud, while an inmate at the Federal prison at Leavenworth, had allegedly killed a guard, and was charged with first degree murder. 3 Certain letters, containing inculpatory statements, were admitted into evidence against him. They had been written by him after the homicide and while he was an inmate at Leavenworth. As the ²²⁴ Court noted, “[t]hey were voluntarily written, and under the practice and discipline of the prison were turned over ultimately to the warden, who furnished them to the district attorney.” Stroud had applied for the return of the letters under the doctrine laid down in Weeks v. United States, 232 U. S. 383 (1914), which application was apparently denied. 4 The Court affirmed that denial, holding Weeks to be inapplicable.

It said, 251 U. S. at 21 : “In this instance the letters were voluntarily written, no threat or coercion was used to obtain them, nor were they seized without process. They came into the possession of the officials of the penitentiary under established practice, reasonably designed to promote the discipline of the institution. Under such circumstances there was neither testimony required of the accused, nor unreasonable search and seizure in violation of his constitutional rights.” 5 Stroud is virtually indistinguishable from the case at bar. The question is whether it is still “good law”, whether it survives as a controlling Constitutional precedent.

In 1967, the Supreme Court of Florida still considered it viable. In Baker v. State, 202 So. 2d 563 (Fla., 1967), the defendant claimed that the interception and copying, by a jail official, of a letter written by defendant to his uncle constituted an invasion of privacy and an illegal seizure. Concluding, however, that the jailer, to whom the letter was given for mailing, “read it as a standard security measure practiced to insure the internal stability of the jail” and that the letter therefore “came into possession of the state in the orderly process of the operation of the jail”, the court held that the ²²⁵ letter was properly admitted into evidence. Succinctly, the court stated, at page 567: “The use of admissions against interest in letters written by prison inmates has been held proper by the United States Supreme Court.

Stroud v. United States, 251 U.S. 15 , 40 S. Ct. 50 , 64 L. Ed. 103 (1919). Stroud is still the law.... We know of no rule of law or constitutional provision which prohibits the use in evidence of a letter obtained in this way.” 6 The holding in Stroud was based, in part, on the general authority of prison officials to engage in reasonable censorship of communications from, to, and among inmates as a necessary adjunct to maintaining discipline within the institution. First Amendment rights were not considered by the Court.

Stroud's continued vitality must therefore be re-examined in light of the more recent pronouncements of the Supreme Court in Procunier v. Martinez, 416 U. S. 396 (1974), Wolff v. McDonnell, 418 U. S. 539 (1974), and the progeny fostered by them. 7 Procunier v. Martinez involved a broad class action attack on the mail censorship regulations operative within the California Department of Corrections. It was decided solely upon First Amendment grounds, and did not at all involve search and seizure questions under the Fourth Amendment. 8 It was, as the majority Opinion noted, a question “not ²²⁶ previously addressed” by the Court. 9 The principle announced by the Court was this: “[W]e hold that censorship of prisoner mail is justified if the following criteria