U.S. v. Cohen

• Decision Date: 30 June 1986
• Docket Number: 668 and 651,Nos. 433,D,s. 433
• Citation: 796 F.2d 20
• Parties: UNITED STATES of America, Appellee, v. Eliot COHEN, a/k/a "Eli", Johnanne Winchester, a/k/a "Johnnie Winchester," Harold Barr, a/k/a "Larry Freeman", a/k/a "Barry Simon, a/k/a Jay Foster", a/k/a "James Aletter", Defendants- Appellants. ocket 85-1178, 85-1205 and 85-1229.
• Court: U.S. Court of Appeals — Second Circuit

Page 20

796 F.2d 20

55 USLW 2091

UNITED STATES of America, Appellee, v. Eliot COHEN, a/k/a "Eli", Johnanne Winchester, a/k/a

"Johnnie Winchester," Harold Barr, a/k/a "Larry

Freeman", a/k/a "Barry Simon, a/k/a Jay

Foster", a/k/a "James

Aletter",

Defendants-

Appellants.

Nos. 433, 668 and 651, Docket 85-1178, 85-1205 and 85-1229.

United States Court of Appeals, Second Circuit.

Argued Jan. 13, 1986.

Decided June 30, 1986.

Michael R. Bromwich, Asst. U.S. Atty., S.D.N.Y., New York City (Kenneth Roth, Asst. U.S. Atty., New York City, of counsel), for appellee.

Richard P. Caro, New York City, for defendant-appellant Harold Barr.

Lynne F. Stewart, New York City, for defendant-appellant Johnanne Winchester.

Michael S. Washor, New York City (Harvey L. Greenberg, Washor, Greenberg & Washor, New York City, of counsel), for defendant-appellant Eliot Cohen.

Before CARDAMONE and PRATT, Circuit Judges and WYZANSKI, District Judge. ^*

CARDAMONE, Circuit Judge:

Appellants Arthur Barr, Johnanne Winchester and Eliot Cohen challenge the evidentiary and constitutional bases for their convictions in this multi-defendant drug conspiracy case. Except for one issue Barr raises, these challenges are without merit and do not warrant discussion. Therefore, the judgments of conviction of appellants Winchester and Cohen are affirmed.

Barr, the recognized "ring-leader" of the drug conspiracy, was arrested on June 1, 1984 and charged with conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1982). When unable to post bail set at one million dollars, he was remanded into custody and held in pretrial detention at New York's Metropolitan Correctional Center (MCC). Subsequently, four superseding indictments were filed against appellant charging him with distribution of cocaine and interstate travel in aid of drug distribution activities in violation of 18 U.S.C. Sec. 1952 (1982), operating a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848 (1982), tax evasion, in violation of 26 U.S.C. Sec. 7201 (1982), obstruction of justice, in violation of 18 U.S.C. Sec. 1503 (1982) and witness tampering, in violation of 18 U.S.C. Sec. 1512 (1982).

Barr appeals from a judgment of conviction and of forfeiture entered against him on June 19, 1985 in the United States District Court for the Southern District of New York (Lasker, J.) following an eight-week jury trial. He was convicted of operating a continuing criminal narcotics enterprise, narcotics conspiracy (three counts), distribution of narcotics (38 counts), and tax evasion (three counts). The obstruction of justice and witness tampering charges were severed from the other charges during trial. Barr is serving concurrent sentences imposed on these convictions, the longest of which is 20 years. Of the eight issues Barr raises on appeal, seven are without merit. Only the search of his cell in the MCC, while awaiting trial, warrants discussion.

FACTS

On July 5, 1984 MCC corrections officer, Lt. William Chevere, conducted a so-called "contraband" search of Barr's cell. The search lasted approximately half an hour and consisted entirely of an examination of Barr's papers. A short time later, Lt. Chevere returned and examined Barr's papers for an additional hour. Assistant United States Attorney Michael R. Bromwich later admitted in his affidavit that he initiated the July 5 "contraband" search by Lt. Chevere. He directed MCC prison authorities to enter Barr's cell "to look for certain types of documents that may have contained the names and phone numbers of other of Barr's co-conspirators and witnesses who Barr had already contacted and was still in the process of trying to contact."

In order to establish the requisite probable cause to obtain a search warrant for Barr's cell the next day, Det. Rocco R. Sanfillippo relied primarily on the information found by Lt. Chevere during the July 5 warrantless search of Barr's papers. Based on this information, a magistrate issued a search warrant on July 6 authorizing the seizure of all "written, non-legal materials belonging to Harold Barr." Pursuant to the warrant, Det. Sanfillippo and Lt. Chevere seized numerous sheets of paper from Barr's cell which included witness lists, notes on specific charges, personal matters, notes on conversations between Barr and his attorneys, and a sheet of paper on which the government contended Barr was practicing to disguise his handwriting.

Upon Barr's motion to suppress this evidence, the district court suppressed some of the material on Sixth Amendment grounds because they related to Barr's right to counsel. But the trial court refused to suppress the remaining papers or to declare the search unlawful on Fourth Amendment grounds.

DISCUSSION

On appeal Barr challenges the July 5th search of his prison cell as a warrantless search conducted in violation of the Fourth Amendment. If he succeeds on this claim the evidence seized on July 6th will be suppressed since the information establishing probable cause for that search was the fruit of an unlawful search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Barr further argues that the district court should have conducted a taint hearing to determine what fruits, if any, were obtained as a result of information derived from the warrantless search. The government relies on Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), for the proposition that the Fourth Amendment provides no protection for a prisoner's claim of a privacy right in his prison cell. It argues that the fruits of any search conducted of the cell of either a convicted prisoner or pre-trial detainee may not be suppressed on constitutional grounds.

A. Prior Case Law Leading to Hudson v. Palmer

To resolve this issue, it is helpful to review several Supreme Court decisions that preceded Hudson. Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948), set forth the general principle that lawful imprisonment necessarily entails a restriction or withdrawal of constitutional rights, "a retraction justified by the considerations underlying our penal system." Prison officials need wide latitude to subject prisoners to appropriate rules and regulations. Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). Institutional security and related administrative problems as well as legitimate objectives of the correctional system require limitations on prisoner rights. Pell v. Procunier, 417 U.S. 817, 826, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974).

While those provisions of the Constitution that are applicable in general to all citizens must be accomodated to institutional needs and objectives, no wall separates the constitution from prison inmates. Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). Thus, prisoners have been held to retain right of access to the courts, see Johnson v. Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed. 2d 718 (1969); Ex parte Hull, 312 U.S. 546, 548-49, 61 S.Ct. 640, 641, 85 L.Ed. 1043 (1941); Equal Protection Clause of the Fourteenth Amendment protects them against invidious discrimination on the basis of race, except as may be essential to prison security, see Cruz v. Beto, 405 U.S. at 321, 92 S.Ct. at 1081; Lee v. Washington, 390 U.S. 333, 334, 88 S.Ct. 994, 995, 19 L.Ed.2d 1212 (1968) (per curiam); and the Eighth Amendment safeguards inmates from "deliberate indifference to [their] serious medical needs...." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).

From these cases there emerges a rule that when a prison restriction infringes upon a specific constitutional guarantee, it should be evaluated in light of institutional security. Security is the main objective of prison administration; prison officials must have broad latitude to adopt rules that protect the safety of inmates and corrections personnel and prevent escape or unlawful entry. Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). "This principle applies equally to pretrial detainees and convicted prisoners. A detainee simply does not possess the full range of freedoms of an unincarcerated individual." Id. at 546, 99 S.Ct. at 1878.

This brings us to the Supreme Court's 1984 decision in Hudson v. Palmer. In that case a convicted inmate filed an action against a prison official under 42 U.S.C. Sec. 1983 (1982) claiming that an unreasonable "shake down" search of his prison locker and cell violated his Fourth Amendment rights. The Court restated the now self-evident truth that prisoners retain rights as prisoners that are not "fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration." 104 S.Ct. at 3198. Yet, because the interest of society in the security of its penal institutions outweighs the interest of the prisoner in privacy within his cell, it held that the traditional Fourth Amendment privacy right is "fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." Id. at 3200-01. Such a conclusion is bottomed on common sense because if drugs, weapons, and contraband are to be ferreted out of jail cells, then prison officials must have unrestricted access to those places to accomplish that objective. Concededly, isolated instances of unreasonable searches...