State v. Steffes

• Decision Date: 13 February 2003
• Docket Number: No. 02-1300-CR.,02-1300-CR.
• Citation: 260 Wis.2d 841,2003 WI App 55,659 N.W.2d 445
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Joseph STEFFES, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

260 Wis.2d 841

2003 WI App 55

659 N.W.2d 445

STATE of Wisconsin, Plaintiff-Respondent, v. Joseph STEFFES, Defendant-Appellant.¹

No. 02-1300-CR.

Court of Appeals of Wisconsin.

Submitted on briefs November 11, 2002.

Decided February 13, 2003.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Daniel P. Ryan of Flottmeyer, Burgos, Ryan & Sayner, La Crosse.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sarah K. Larson, asst. attorney general, and James D. Doyle, attorney general.

Before Vergeront, P.J., Roggensack and Deininger, JJ.

¶ 1. VERGERONT, P.J.

Joseph Steffes, an inmate at Fox Lake Correctional Institution, appeals the judgment of conviction for solicitation to deliver marijuana to a prisoner within a prison as a repeat offender.² Steffes contends the trial court erred in denying his motion to suppress marijuana found in mail addressed to him. Steffes's position is that opening the envelope outside his presence, when the envelope was marked "legal papers," violated WIS. ADMIN. CODE § DOC 309.04(3)(a),³ his Sixth Amendment right to counsel and his Fourteenth Amendment right not to be deprived of liberty without due process of law.

¶ 2. We conclude that the opening of the envelope outside Steffes's presence did not violate Steffes's Sixth Amendment right to counsel because there is no evidence that the documents in the envelope were communications with Steffes's attorney or somehow related to an attorney's representation of Steffes in a criminal matter. We also conclude there was no violation of his Fourteenth Amendment right not to be deprived of liberty without due process of law because WIS. ADMIN. CODE § DOC 309.04(3)(a) does not create a liberty interest under Sandin v. Conner, 515 U.S. 472 (1995). Therefore, even if there were a violation of § DOC 309.04(3)(a), an issue we do not decide, the trial court properly ruled that Steffes was not entitled to suppression of the marijuana found in the envelope. Accordingly, we affirm.

BACKGROUND

¶ 3. Lieutenant Clyde Maxwell, an officer at Fox Lake Correctional Institution, testified at the preliminary hearing and at the motion hearing as follows. He had received anonymous notes stating that Steffes was dealing drugs in the institution and therefore he monitored a phone call Steffes made to his brother Michael on December 13, 1999.⁴ Steffes asked Michael whether he had received Steffes's letter and Michael said he had; Steffes asked if the letter had been tampered with and Michael said no. According to Lieutenant Maxwell, Steffes told Michael to "follow his instructions and send it back to me" and "[t]here's a white envelope and some stamps."

¶ 4. As a result of this phone conversation, Lieutenant Maxwell requested that a mail monitor be placed on Steffes's incoming mail—meaning that, once approved by the security director, Steffes's mail would be sent to Lieutenant Maxwell for inspection for contraband.

¶ 5. On December 17, 1999, Lieutenant Maxwell monitored a second phone call, this time from Steffes to his brother Danny. During the conversation Steffes asked Danny if he had spoken with Michael about the letter that Steffes had sent to Michael, and Danny answered yes. Steffes asked Danny to lend Michael money so that he could buy a "dime bag," which, Lieutenant Maxwell testified, is a $10 package of marijuana. Steffes told Danny to return the dime bag to the prison in the envelope that Steffes had sent Michael.

¶ 6. On December 25, 1999, Lieutenant Maxwell monitored another phone call from Steffes to Danny. In this conversation, Steffes, in Lieutenant Maxwell's words, asked Danny if he "could just take care of it for him, instructing him [Danny] to go across the street to Rudy and purchase his dime bag."

¶ 7. On December 29, 1999, Lieutenant Maxwell was notified by the mailroom that there was a suspicious envelope addressed to Steffes. The envelope was white, approximately 8-½ inches by 11 inches, with the return address of "Milwaukee State Public Defender's office, Milwaukee, Wisconsin" typewritten on a white piece of paper taped to the front of the envelope; there was no letterhead or seal on the return address. The words "legal papers" were handwritten with a magic marker on the front and back of the envelope.⁵ Lieutenant Maxwell was suspicious of the envelope because, according to the mail sergeant, legal mail is usually metered rather than bearing stamps as did this envelope; legal mail is usually stamped "attorney-client"; and the return address usually is an embossed stamp rather than being taped on. Lieutenant Maxwell opened the envelope outside Steffes's presence. In the envelope were approximately five to ten pages of paper and, flattened between them, a green, leafy substance that tested positive for marijuana. Lieutenant Maxwell answered as follows to questions on the contents of the envelope.

Q: Now I think you testified earlier that when you opened this particular envelope, you found a substance which you believed to be marijuana; correct?

A: That's correct.

Q: You also indicated that you found other paperwork in there?

A: Right.

Q: Now that other paperwork appeared to be legal mail; didn't it?

A: I don't really remember what was written on there. I guess it would appear — would have appeared to be legal mail, but I wasn't really focused on the content on what was on the papers.

¶ 8. Steffes filed a motion to suppress the marijuana as evidence. He contended that Lieutenant Maxwell violated WIS. ADMIN. CODE § DOC 309.04(3)(a), which provides that institution staff may open mail received by an inmate that is "clearly identifiable" as being from an attorney only in the presence of the inmate. The violation of the rule, he argued, was a violation of his constitutional rights, and the remedy was suppression of the marijuana. The trial court denied the motion, concluding that the issue was controlled by State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 601 N.W.2d 287 (Ct. App. 1999). Steffes filed a petition for leave to appeal the nonfinal order, which this court denied. He subsequently pleaded no contest to the charge of solicitation to deliver marijuana to a prisoner within a prison.

DISCUSSION

¶ 9. On appeal Steffes renews his argument that the State obtained the marijuana illegally because Lieutenant Maxwell opened Steffes's mail outside his presence in violation of WIS. ADMIN. CODE § DOC 309.04(3)(a), and this, Steffes contends, constitutes a violation of his Sixth Amendment right to counsel and his Fourteenth Amendment right against the deprivation of liberty without due process of law.⁶ He acknowledges that, since there is no statutory or regulatory provision that evidence obtained in violation of the code is to be excluded in a criminal proceeding, he is not entitled to suppression of the marijuana unless it was obtained in violation of a constitutional right. State v. Mieritz, 193 Wis. 2d 571 574, 534 N.W.2d 632 (Ct. App. 1995).

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¶ 10. On a motion to suppress evidence, a defendant generally bears the burden of producing evidence to support a constitutional violation, and the State then bears the burden of showing a constitutionally valid procedure by a preponderance of the evidence. State v. Noble, 2002 WI 64, ¶ 19, 253 Wis. 2d 206, 646 N.W.2d 38. When we review a trial court's decision on a motion to suppress evidence, we affirm the court's findings of fact unless they are clearly erroneous, and we review de novo the application of constitutional principles to those facts. State v. Vorburger, 2002 WI 105, ¶ 32, 255 Wis. 2d 537, 648 N.W.2d 829.

Sixth Amendment Right to Counsel

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¶ 11. Steffes argues that his Sixth Amendment right to counsel entitles him to be present when mail to him from his attorney is opened. He argues that Lieutenant Maxwell violated this right because the envelope he opened had a return address from the public defender's office, was marked "legal papers," and Lieutenant Maxwell testified that the papers in the envelope "would have appeared to be legal mail." Alternatively, Steffes argues that even if the envelope did not actually contain a communication from his attorney, he was still entitled under the Sixth Amendment to be present when it was opened. The State responds that Steffes's Sixth Amendment right to counsel was not violated because there is no evidence that his right to confidential communication with his attorney was interfered with. Since both parties find support for their positions in Peckham, 229 Wis. 2d 778, on which the trial court relied, we discuss this case in some detail.

¶ 12. In Peckham, an inmate appealed from a prison disciplinary decision on the ground that mail she had addressed to "Attorney-K Leslie" had been opened outside her presence in violation of WIS. ADMIN. CODE § DOC 309.05(4)(a) (which has since been renumbered to WIS. ADMIN. CODE § DOC 309.04(3)(a), with the relevant language essentially unchanged). The inmate asserted that the evidence obtained from that mailing could not therefore be used against her in the disciplinary action. The inmate had sent the mail out of the prison, but it was returned to the prison due to an insufficient address and opened by prison staff outside her presence. Inside was correspondence between the inmate and a publishing company concerning a refund and replacement for some volumes she had received. Id. at 780.

¶ 13. We concluded in Peckham that, even though the mail did not actually contain correspondence to an attorney, opening and examining it outside the inmate's presence was a violation of the rule because the envelope was addressed to "Attorney-K Leslie." Id. at 785. However, we also concluded that suppression of the evidence obtained was not warranted because there was no statute specifically requiring suppression, and the evidence had not been obtained in violation of the inmate's constitutional rights. Id. at 794.

¶ 14. In reaching the...