PEOPLE
v.
PAUL WILLIAMS
Docket No. 55146.
Michigan Court of Appeals.
Decided July 19, 1982.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William D. Bond, Assistant Prosecuting Attorney, for the people.
James H. Davies, for defendant on appeal.
Before: BRONSON, P.J., and D.F. WALSH and C.W. SIMON,[*] JJ.
C.W. SIMON, J.
Defendant was convicted by a jury of transporting a female for purposes of prostitution, MCL 750.459; MSA 28.714. He was sentenced to a term of from 8 to 20 years imprisonment. Defendant appeals of right.
During the late evening and early morning hours of June 15 and 16, 1980, four officers of the Monroe County Sheriff's Department were working in a rest area off I-75. The sheriff's department *119 had received numerous complaints that male and female persons were using this area to solicit for purposes of prostitution. Two of the undercover officers were positioned in two separate semi trucks. The other two officers were in a panel truck with an observation window. At approximately 11 p.m., the officers observed the defendant drive into the rest area and drop off two black females. Subsequently, one of the females solicited one of the officers positioned in the semi trucks. Sometime after midnight, the officers again observed the defendant enter the rest area and drop off a white female. This female solicited the officers in the semi trucks. She and the defendant were subsequently arrested.
While defendant was incarcerated in jail, he wrote a letter to Connie Bannister, an accused prostitute, who was an inmate at the same jail. The letter was given to a jailer, Vince Burkey, who copied the letter before delivering it to Ms. Bannister. That portion of the letter instructing Ms. Bannister to testify that she observed someone else driving defendant's car on the night in question was introduced into evidence at defendant's trial.
The defendant contends that the trial court erred in admitting the letter into evidence, as the letter was the product of an illegal search. No objection was made to the admission of the letter at trial. Normally, failure to object to admission of evidence at trial precludes review. People v Duncan, 402 Mich. 1, 16; 260 NW2d 58 (1977). However, the Courts have recognized an exception when a constitutional question is raised for the first time on appeal. See People v Crawl, 401 Mich. 1, 31, fn 20; 257 NW2d 86 (1977).
The first inquiry must be whether the exclusion *120 of the letter could make a difference at trial. We conclude that the exclusion of the letter would not have made a difference in the outcome of the trial. Eyewitness testimony established that defendant entered the rest area on two different occasions. On each occasion, he was transporting a female who subsequently solicited undercover officers as a prostitute. The portion of the letter admitted into evidence did not corroborate the testimony of the officers who testified at trial, nor did the letter link defendant to the crime. Rather, the purpose of the letter was an attempt to induce testimony to bolster defendant's story and in fact contained no self-incriminating statement.
Even though admission of the letter was not decisive, we determine that the letter was not unlawfully seized. Persons incarcerated in jail while awaiting trial are entitled to the protections guaranteed by the Fourth Amendment. People v Trudeau, 385 Mich. 276, 281; 187 NW2d 890 (1971); People v Carr, 370 Mich. 251; 121 NW2d 449 (1963). Therefore, the initial inquiry must focus on whether the police conduct violated defendant's reasonable expectations of privacy. Katz v United States, 389 U.S. 347; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967). To determine whether defendant had a reasonable expectation of privacy two questions must be asked: (1) did the defendant have a right to assume that his chosen means of communication would insure privacy; and (2) was the government intrusion on the privacy of defendant justified under the circumstances.
It has long been recognized that among the substantial and important government interests involved in the maintenance of penal institutions are the "preservation of internal order and discipline, the maintenance of institutional security *121 against escape or unauthorized entry". Stroud v United States, 251 U.S. 15; 40 S. Ct. 50; 64 L. Ed. 103 (1919). More recent Supreme Court decisions in Procunier v Martinez, 416 U.S. 396; 94 S. Ct. 1800; 40 L. Ed. 2d 224 (1974), and Wolff v McDonnell, 418 U.S. 539; 94 S. Ct. 2963; 41 L. Ed. 2d 935 (1974), give clear recognition to the existence of a proper and identifiable governmental interest in the monitoring of communications to and from prisoners. The legitimate interest of the government in "institutional security" and "internal order and discipline" makes it not only reasonable but also necessary that jail authorities have the general right to open and read a prisoner's mail.
In People v Oliver, 63 Mich. App. 509, 515; 234 NW2d 679 (1975), we recognized the right of jail authorities to open a prisoner's mail for reasons of internal security. In Oliver, supra, the defendant was attempting to smuggle a letter out of jail. This Court found that jail authorities had the right to confiscate, open, and read the letter. In addition, this Court held that the letter was admissible into evidence at defendant's trial.
We find that Deputy Burkey had a right to open and read the letter before delivering it to another inmate. Defendant had no right to expect that he could use jail personnel to deliver messages without the jail personnel first determining whether such messages contained information adverse to their legitimate interest in preserving internal security, order, and discipline.
We find that, under the circumstances of this case, the defendant had no reasonable expectation of privacy with respect to the letter. Accordingly, the defendant's Fourth Amendment rights were not violated by the deputy's reading and copying the letter. In addition, we follow People v Oliver, *122 supra, and hold that the letter was admissible into evidence at defendant's trial.
We do not mean to say, nor could we, that a pretrial detainee forfeits many significant Fourth Amendment rights. Personal papers, attorney-client correspondence, and personal diaries are not subject to scrutiny or search or seizure by prison officials absent a clear showing that papers or documents seized contain information concerning "imminent danger to inmate safety or prison security". United States v Hinckley, 525 F Supp 1342, 1363 (D DC, 1981), aff'd 30 Crim L Rep (BNA) 2425 (1982).
We have examined defendant's claim of ineffective assistance of counsel and have found it to be without merit. Because the admission of the evidence was proper, counsel's failure to move for suppression was not a decisive error evincing ineffective representation. A defendant is entitled to a new trial if counsel did not perform "at least as well as a lawyer with ordinary training and skill in the criminal law" and did not "conscientiously protect his client's interests, undeflected by conflicting considerations". People v Garcia, 398 Mich. 250, 264; 247 NW2d 547 (1976). Further, defense counsel must not have made a serious mistake without which defendant would have had a reasonable likelihood of acquittal. Garcia, supra, 266; People v Degraffenreid, 19 Mich. App. 702, 718; 173 NW2d 317 (1969). Defense counsel's failure to move for suppression of the letter on Fourth Amendment grounds cannot reasonably be seen as having denied defendant the likelihood of acquittal.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.