State of Maine v. Schwartz

• Court: Superior Court of Maine
• Decided: June 17, 2013
• Docket: CUMcr-13-1576
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss.

STATE OF MAINE,

v. DECISION

MICHAEL SCHWARTZ,

Defendant.

FINDINGS

1. The Cumberland County Sheriff's policy F-130 states that outgoing mail from

inmates shall not be read or censored except when a reasonable belief exists that

the correspondence contains information related to criminal activity or security.

See State's Exhibit A, page 2, paragraph A(3).

2. Jean Coleman works for the Cumberland County Sheriff as a receptionist-records

clerk. For several years she has been designated by Capt. Steven Butes, the head

of security and operations at the Cumberland County Jail, as a "second set of

eyes" to inspect and search outgoing inmate mail for evidence of criminal

activity.

3. In August 2012, Ms. Coleman inspected an envelope sent by inmate Michael

Schwartz to a private person outside the jail.

4. The envelopes provided to jail inmates are very thin. The writing paper supplied

to the inmates is either white or yellow lined. It is easily visible through the thin

envelopes.

5. Ms. Coleman looked for the lined paper through the envelope and did not see it.

Instead she saw what looked to be an official form. She then saw the form

referred to "unemployment." 6. Ms. Coleman was immediately suspicious. Ms. Coleman knew that inmates are

not eligible for unemployment insurance if they have not been able to search for

work, which most inmates cannot do. Ms. Coleman also knew that if an inmate

sent a job search form directly to the Labor Department, the department would

know it had come from an inmate. Jail rules require that all outgoing mail have a

return address on the envelope for the county jail.

7. Ms. Coleman reasonably believed that Mr. Schwartz was sending a fraudulent

work search log to a private person who could then forward it to the Labor

Department in an envelope not showing the jail as Mr. Schwartz's return

address.

8. Ms. Coleman opened Mr. Schwartz's envelope, read the contents and discovered

a fraudulent work search log prepared by Mr. Schwartz.

9. Ms. Coleman then forwarded the mail to its addressee and notified Blaine

Richardson, who investigates unemployment fraud for the State of Maine.

DISCUSSION

The case law submitted by the State and even by Mr. Schwartz establishes that

the sheriff's policy is constitutional. See Stow v. Grimaldi, 993 F.2d 1002, 1004 (1 81 Cir.

1993); United States v. O'Rourke, 2000 U.S. Dist. Lexis 8064, 2000 WL 761659 (D. Me. April

19, 2000).

Mr. Schwartz argues that Ms. Coleman violated the sheriff's policy and the

constitution by opening his envelope without a reasonable belief. In fact Ms. Coleman

was being overly cautious. Under the policy and the law, she did not have to try to

determine the existence of criminal activity by peering through the envelope. She had

the right to open the envelope and briefly inspect what was inside. If she saw evidence

of wrongdoing, as she did, then she could read the material and confiscate it for

2 examination by her superior. If she did not find evidence of wrongdoing after a brief

inspection, then she would simply seal the envelope and send it on its way.

Whichever procedure Ms. Coleman followed, once she determined that the

envelope contained an unemployment form prepared by a prisoner; she had reasonable

belief that a crime was in progress and she acted appropriately.

The clerk shall make the following entry on the docket, by reference:

Defendant Michael Schwartz's motion to suppress is denied in all respects.

DATED: June 17,2013

William S. Brodrick Active-Retired Justice, Superior Court

3 STATE OF MAINE CRIMINAL DOCKET vs CUMBERLAND, ss. MICHAEL T SCHWARTZ Docket No CUMCD-CR-2013-01576 CUMBERLAND COUNTY JAIL PORTLAND ME 04101 DOCKET RECORD

DOB: 08/12/1979 Attorney: VERNE PARADIE State's Attorney: JULIA SHERIDAN PARADIE SHERMAN & WORDEN 11 LISBON ST SUITE 202 LEWISTON ME 04240 APPOINTED 03/13/2013

Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C) Filing Date: 03/07/2013

Charge(s)

1 FORGERY 0311012012 PORTLAND Seq 8508 17-A 703 (1) (A-1) (2) Class C GORHAM I CUM 2 THEFT BY UNAUTHORIZED TAKING OR TRANSFER 0311012012 PORTLAND Seq 8427 17-A 353 (1} (B) (4) Class C GORHAM I CUM 3 MAKING FALSE STATEMENT - UNEMPLOYMENT 0311012012 PORTLAND FRAUD Seq 856 26 1051(1) Class D GORHAM I CUM

Docket Events:

03/08/2013 FILING DOCUMENT - INDICTMENT FILED ON 03/07/2013

03/08/2013 Charge(s): 1,2,3 HEARING - ARRAIGNMENT SCHEDULED FOR 03/13/2013 at 01:00 p.m. in Room No. 1

NOTICE TO PARTIES/COUNSEL 03/08/2013 OTHER FILING - NOTICE OF JOINDER FILED BY STATE ON 03/07/2013 JAMES TURCOTTE , ASSISTANT CLERK JOINED WITH KANE 13-1560 03/14/2013 Charge(s): 1,2,3 HEARING - ARRAIGNMENT HELD ON 03/13/2013 PAUL E EGGERT , JUDGE DA: JULIA SHERIDAN DEFENDANT INFORMED OF CHARGES. 21 DAYS TO FILE MOTIONS TAPE #4804 03/14/2013 Charge(s): 1,2,3 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 03/13/2013

03/14/2013 BAIL BOND - CASH BAIL BOND SET BY COURT ON 03/13/2013 PAUL E EGGERT , JUDGE $5,000. CASH 03/14/2013 HEARING- DISPOSITIONAL CONFERENCE SCHEDULED FOR 05/14/2013 at 08:30 a.m. in Room No. 7

CR 200 Page 1 of 3 Printed on: 06/19/2013 MICHAEL T SCHWARTZ CUMCD-CR-2013-01576 DOCKET RECORD 03/14/2013 TRIAL- JURY TRIAL SCHEDULED FOR 06/24/2013 at 08:30a.m. in Room No. 11

NOTICE TO PARTIES/COUNSEL 03/14/2013 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 03/13/2013

03/14/2013 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 03/13/2013 PAUL E EGGERT , JUDGE COPY TO PARTIES/COUNSEL 03/14/2013 Party(s): MICHAEL T SCHWARTZ ATTORNEY - APPOINTED ORDERED ON 03/13/2013

Attorney: VERNE PARADIE 05/14/2013 HEARING - DISPOSITIONAL CONFERENCE CONTINUED ON 05/14/2013 JEFF MOSKOWITZ , JUDGE DA: ROBERT ELLIS CASE CONTINUED TO 5-16-13 @8:30A.M. TAPE 4958 05/14/2013 HEARING- DISPOSITIONAL CONFERENCE SCHEDULED FOR 05/16/2013 at 08:30a.m. in Room No. 7

05/16/2013 HEARING - DISPOSITIONAL CONFERENCE HELD ON 05/16/2013 JEFF MOSKOWITZ , JUDGE Attorney: VERNE PARADIE DA: JULIA SHERIDAN CONF HELD, OFFER MADE. MOTION FILED 05/16/2013 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 05/16/2013

05/16/2013 Charge(s): 1,2,3 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 06/11/2013 at 01:00 p.m. in Room No. 1

NOTICE TO PARTIES/COUNSEL 06/06/2013 Charge(s): 1,2,3 HEARING - STATUS CONFERENCE HELD ON 05/31/2013 ROLAND A COLE , JUSTICE Attorney: CLIFFORD STRIKE DA: JULIA SHERIDAN VERNE PARADIE PARTICIPATED BY PHONE. TRIAL ON CR-13-1576 JOINED WITH 13-1560 TO PROCEED TO TRIAL ON 6/24. DOCKET 12-6129 JOINED WITH 12-6114 TO BE RESET, 06/12/2013 Charge(s): 1,2,3 HEARING - MOTION TO SUPPRESS HELD ON 06/11/2013 WILLIAM BRODRICK , JUSTICE DA: JULIA SHERIDAN TAPE #5064 06/12/2013 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS UNDER ADVISEMENT ON 06/11/2013 WILLIAM BRODRICK , JUSTICE 06/19/2013 Charge(s): 1,2,3 MOTION - MOTION TO SUPPRESS DENIED ON 06/18/2013 WILLIAM BRODRICK , JUSTICE COPY TO PARTIES/COUNSEL

CR 200 Page 2 of 3 Printed on: 06/19/2013