               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38347

STATE OF IDAHO,                                  )
                                                 )     2013 Opinion No. 49
       Plaintiff-Respondent,                     )
                                                 )     Filed: September 6, 2013
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
KEITH ALLAN BROWN,                               )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Bonner County. Hon. Fred M. Gibler, District Judge.

       Order denying motions to suppress evidence, affirmed in part and vacated in part;
       and case remanded.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
        Keith Allan Brown appeals from a judgment of conviction for voluntary manslaughter
and accessory to grand theft entered following a conditional guilty plea. Brown challenges the
district court’s denial of his motions to suppress evidence on the grounds that probable cause for
issuance of the warrant for Brown’s arrest had dissipated before he was arrested, that his
confession to police was involuntary, and that Brown’s mail was impermissibly searched while
he was incarcerated. Brown also appeals the district court’s denial of his motion for reduction of
his sentence. We affirm in part, vacate in part, and remand the case.




                                                1
                                                 I.
                                        BACKGROUND
       This case began in February 2007, when Bonner County sheriff’s officers were alerted to
an abandoned truck. 1 The keys were with the truck, which was registered to Les Breaw, along
with Breaw’s wallet, checkbook, legal papers, and several pieces of mail. There were no debit or
credit cards in the wallet. When officers checked at Breaw’s home, it looked as though he had
stepped out and planned to return, but the snow-covered driveway showed no signs of recent
traffic. Concerned for Breaw’s safety, the officers began investigating to determine when he was
last seen. They were told by a neighbor that one of Breaw’s other neighbors, Keith Brown, was
last seen hurriedly packing for a trip around the time Breaw was last seen, and that Brown had
not been seen since. Officers also learned that neither Brown, who worked for Breaw, nor
Brown’s wife, Tyrah Brown, had picked up their most recent paychecks. While investigating
Breaw’s recent bank card activity, officers also discovered a security video from a local store
which appeared to show Brown using Breaw’s debit card. When the store clerk was later asked
about the incident, the clerk remembered it clearly because Brown did not know how to use the
debit card and did not know the debit card’s pin number.
       Because of the suspicious circumstances surrounding Breaw’s and Brown’s
disappearance and the possibly illegal debit card activity, an officer applied to a magistrate for a
search warrant and a warrant to arrest Brown for theft of the debit card. The officer testified in
support of the warrant, and gave the magistrate the details of the suspicious use of the debit card
and the circumstances surrounding Breaw’s and Brown’s disappearance. He also reported to the
magistrate that both Brown and Tyrah had extensive criminal records, including arrests for
identity theft. After considering the evidence, the magistrate found probable cause, and both a
search warrant for the Brown residence and a warrant authorizing Brown’s arrest for grand theft
were issued on February 7, 2007.
       Although the arrest warrant was issued on suspicion of only theft of the bank card, over
the next few weeks officers uncovered more incriminating information about Brown and Tyrah,
including information that an escrow check for $50,000 payable to Breaw had been deposited


1
        Because there was no trial, the background facts recounted here are gleaned elsewhere
from the record presented in this appeal, primarily from the preliminary hearing transcript, police
reports and depositions.

                                                 2
into a bank account held by Tyrah. Tyrah had opened the account on January 22, 2007, and
deposited the check two days later. Within a week, all of the $50,000 had been withdrawn from
the account. Officers also learned that around the time of the suspicious debit card transaction, a
man and woman had gone to some of Breaw’s renters to collect rent, allegedly on behalf of
Breaw. One renter who had paid in cash remembered the incident because Breaw called the next
day claiming that he had never received the rent money. Officers learned from Tyrah’s co-
workers that she had made inconsistent statements about Breaw having travel plans. She told
one individual that the Browns were going to take Breaw to the airport in Seattle, from which he
would fly to Thailand to pick up a sailboat, and told another person that the Browns were going
to drive Breaw to Oregon.
       As part of the investigation, an officer contacted Tyrah’s mother, Rebekah Harding.
Harding said that she had left with the Browns in late January, but Brown purchased a new car in
Montana and left Harding with Brown’s old car at a hotel. During Harding’s initial conversation
with an officer on February 8, she was reluctant to believe that anything illegal had occurred.
She said that Breaw was not missing because he had gone to California to “dig clams” and visit
his mother. She also said that Brown had permission to use Breaw’s debit card, and explained
that Breaw was a poor bookkeeper, so the incident with missing rent money had been a
misunderstanding. The next day, however, Harding called the officer because of a phone call
that she received from Tyrah earlier that morning.          Harding reported that although the
conversation started off casually, when Harding told Tyrah that she had been questioned by a law
enforcement officer the preceding day, the phone line went dead. Harding then suspected that
Brown had done something to Breaw. Harding eventually admitted that Brown had given her
$7,000 before leaving her in Montana.
       On March 19, a body was found hidden under a pile of brush and snow a short distance
from the location where Brown’s truck had been left. Although officers suspected that the body
was Breaw, they were not able to confirm the identity until an autopsy on March 21. During the
autopsy the missing debit card was found in the decedent’s pocket.
       On March 20, the day after the body was found, Brown was arrested in Florida on a
fugitive warrant from Idaho. Before he was extradited to Idaho on the grand theft charge, Brown
and Tyrah were interviewed by Florida law enforcement officials. In these interviews, the
Browns made a number of incriminating statements.          When asked about Breaw’s $50,000


                                                3
escrow check, Brown claimed that the money was owed to him because of services he had
rendered Breaw, but eventually Tyrah confessed to forging Breaw’s name on the escrow check.
Tyrah also confessed to shooting Breaw and hiding his body. According to Tyrah, she had done
it because Breaw had raped her. When Brown was told that his wife had confessed, he also
confessed to killing Breaw and told officers that Tyrah was not there. According to Brown, he
and Breaw had gone shooting that day, and during the outing Breaw offered Brown the escrow
check so that Brown would forgive Breaw for Breaw’s sexual misconduct with Tyrah. Breaw
continued, however, to make disparaging remarks about Tyrah, which ultimately prompted
Brown to shoot Breaw. Brown said that he buried Breaw in the snow and hid the murder
weapon nearby. Brown even drew a map to the gun’s location to persuade officers that Tyrah
was not involved. By the next day, however, Brown’s story had changed. He recanted his story
about killing Breaw and instead told the Florida officers that shooting Breaw had been an
accident. He claimed that Breaw had first shot Brown in the leg, which then caused Brown to
accidentally shoot Breaw in the head.
       Brown was eventually charged with first degree murder, Idaho Code §§ 18-4001, 18-
4003(a), being a felon in possession of a firearm, I.C. § 18-3316, and grand theft, I.C. §§ 18-
2403, 18-2407(1)(b). Brown filed a number of motions to suppress evidence, including his
statements made to Florida police officers and evidence gained from inspection of his mail while
he was incarcerated awaiting trial. These motions were denied. Pursuant to a mediated plea
agreement, Brown ultimately entered a conditional Alford 2 plea to voluntary manslaughter, I.C.
§ 18-4006(1) and accessory to grand theft, I.C. §§ 18-205, 18-2403(1), and 18-2407(1), retaining
the right to appeal any prior adverse rulings of the district court. On appeal, Brown principally
challenges the denial of his suppression motions.
                                               II.
                                          ANALYSIS
A.     Validity of Arrest Warrant
       Brown first asserts that all evidence obtained as a result of his arrest should have been
suppressed because probable cause for the arrest warrant had dissipated before he was arrested.
Brown argues that although the evidence presented in support of the warrant application initially



2
       See North Carolina v. Alford, 400 U.S. 25 (1970).

                                                4
demonstrated probable cause to arrest Brown for theft of Breaw’s debit card, officers later gained
exculpatory information that destroyed that probable cause and failed to disclose it to the
magistrate. Brown contends that such disclosure would have led to a determination that there
was no longer probable cause for the warrant.
       In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that a
defendant may challenge the validity of a warrant by making “a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit.” Id. at 155-56. When such a showing is made,
the Fourth Amendment requires a hearing to determine, by a preponderance of the evidence,
whether the statements are indeed false or made in reckless disregard for the truth. Id. The
Franks doctrine applies not only to affirmative falsehoods in a warrant application, but also to a
deliberate or reckless omission of material exculpatory information. State v. Guzman, 122 Idaho
981, 983-84, 842 P.2d 660, 662-63 (1992); State v. Rounsville, 136 Idaho 869, 871, 42 P.3d 100,
103 (Ct. App. 2002). For the defendant to prevail in such a hearing, he or she must prove by a
preponderance of the evidence that the false statement was made, or the exculpatory information
was omitted intentionally or in reckless disregard for the truth, and that the information in
question was material. Franks, 438 U.S. at 155-56; State v. Lindner, 100 Idaho 37, 41, 592 P.2d
852, 856 (1979). Omitted information is material only if there is a substantial probability that,
had the omitted information been presented, it would have altered the magistrate’s finding of
probable cause. State v. Peterson, 133 Idaho 44, 48, 981 P.2d 1154, 1158 (Ct. App. 1999); State
v. Kay, 129 Idaho 507, 511, 927 P.2d 897, 901 (Ct. App. 1996). The inquiry--whether a
statement or omission was intentional or reckless--presents a question of fact, and we will not
disturb the lower court’s finding without clear error. Peterson, 133 Idaho at 47, 981 P.2d at
1157. The second query--whether the statement or omission was material--is an issue of law that
we review freely. Id.
       Here, Brown argues that before he was arrested in Florida, the Idaho officers had
acquired information indicating that Brown had not stolen Breaw’s debit card or used it without
his permission and that this exculpatory information should have been made known to the
magistrate, who then would have recognized there no longer existed probable cause to arrest
Brown for theft of the card. According to Brown, this newly discovered information included
discovery of the missing debit card on Breaw’s body, information from a business proprietor


                                                5
who reported seeing Breaw use the debit card two days after Brown was suspected of stealing it,
and information from Tyrah’s mother, who claimed that Breaw had previously allowed Brown to
use his debit card to buy gas. Brown relies upon several authorities that have extended the
Franks rationale to require disclosure of material exculpatory information learned after the
issuance of a warrant, but before its execution, to allow the issuing magistrate to determine
whether probable cause for the warrant still exists. See, e.g., United States v. Perez, 484 F.3d
735, 743 (5th Cir. 2007); United States v. Bowling, 900 F.2d 926, 931-32 (6th Cir. 1990); United
States v. Marin-Buitrago, 734 F.2d 889, 894 (2d Cir. 1984).
       Assuming, arguendo, that the Franks doctrine requires officers to return to the magistrate
with newly discovered exculpatory information after a warrant was issued, we agree with the
district court’s assessment that Brown has not shown that such action here would have resulted
in rescission of the warrant for lack of probable cause. First, Brown’s assertion that officers had
discovered the debit card on Breaw’s body before Brown’s arrest in Florida is not supported by
the record. At the Franks hearing, Brown presented evidence that he was arrested on March 20,
and that Breaw’s body--with the missing bank card--was found the day before on March 19.
However, the record also shows that at the request of the coroner, the officers did not go through
Breaw’s pockets before the autopsy. Although the bank card was in Breaw’s pocket, it was not
found until the autopsy was performed on March 21, the day after Brown’s arrest. Thus, even if
probable cause to arrest Brown for grand theft was extinguished when the debit card was found,
that did not occur until after the warrant had been executed and Brown arrested.
       Further, the district court correctly determined that the officers had not acted intentionally
or recklessly by not returning to the magistrate with each piece of evidence gained throughout
the investigation. The new information that was being uncovered by officers included not only
evidence that Brown may not have stolen the credit card or used it without authority, but vastly
more new inculpatory evidence suggesting the theft of other money from Breaw, and possibly
implicating Brown in Breaw’s death. Therefore, an update to the magistrate would not have
been expected to result in the warrant being quashed but in its expansion to cover additional
charges. The district court’s finding that the officers did not intentionally or recklessly omit to
update the magistrate with exculpatory evidence is well supported by the evidence. Accordingly,
the district court’s decision denying suppression of evidence on this ground is affirmed.




                                                 6
B.     Involuntary Confession
       Brown next contends that the district court erred in denying his motion to suppress
incriminating statements to police. The motion asserted that his confession was involuntary
because Brown was “of unsound mind” at the time of this interrogation by Florida police. On
appeal, Brown contends that the prosecution did not satisfy its burden of showing that his
statements were voluntary.
       To determine whether a confession is voluntary, a court must examine the totality of the
circumstances and ask whether the defendant’s will was overborne by police conduct. Arizona v.
Fulminante, 499 U.S. 279, 287-88 (1991); State v. Troy, 124 Idaho 211, 214, 858 P.2d 750, 753
(1993); State v. Valero, 153 Idaho 910, 912, 285 P.3d 1014, 1016 (Ct. App. 2012).              In
determining the voluntariness of a confession, a court should consider the characteristics of the
accused and the details of the interrogation, including whether Miranda 3 warnings were given,
the youth of the accused, the accused’s level of education or low intelligence, the length of the
detention, the repeated and prolonged nature of the questioning, and deprivation of food or sleep.
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Troy, 124 Idaho at 214, 858 P.2d at 753;
Valero, 153 Idaho at 912, 285 P.3d at 1016. The presence or absence of Miranda warnings is a
particularly significant factor. Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) (“[M]aintaining
that a statement is involuntary even though given after warnings and voluntary waiver of rights
requires unusual stamina, and litigation over voluntariness tends to end with the finding of a
valid waiver.”); Berkemer v. McCarty, 468 U.S. 420, 433, n.20 (1984) (“[C]ases in which a
defendant can make a colorable argument that a self-incriminating statement was ‘compelled’
despite the fact that the law enforcement authorities adhered to the dictates of Miranda are
rare.”). If, under the totality of the circumstances, the defendant’s free will was overborne by
threats, through direct or implied promises, or other forms of coercion, then the statement is not
voluntary and is inadmissible. Fulminante, 499 U.S. at 285-87; Troy, 124 Idaho at 214, 858 P.2d
at 753; Valero, 153 Idaho at 912, 285 P.3d at 1016. While one’s “mental condition is surely
relevant to an individual’s susceptibility to police coercion,” it cannot alone make a statement
involuntary because “coercive police activity is a necessary predicate to the finding that a



3
       See Miranda v. Arizona, 384 U.S. 436 (1966).



                                                7
confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth
Amendment.” Colorado v. Connelly, 479 U.S. 157, 165, 167 (1986); see also State v. Doe, 131
Idaho 709, 713, 963 P.2d 392, 396 (Ct. App. 1998). When a defendant alleges an interrogation
to be coercive, the State bears the burden of proving voluntariness of the defendant’s confession
by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972); State v. Yager,
139 Idaho 680, 685, 85 P.3d 656, 661 (2004); State v. Johns, 112 Idaho 873, 878, 736 P.2d 1327,
1332 (1987).
       In his motion to suppress, Brown asserted that his statements to Florida police were
involuntary “because he was of unsound mind when the statements were made, and he was not
competent to make a statement.” As support for this assertion, Brown relied upon his August 19,
2008, competency evaluation that had resulted in the district court ordering a ninety-day
commitment to the Idaho Department of Correction’s Secured Medical Facility for mental health
treatment. Brown attached to a memorandum in support of his motion police reports reflecting
that on two separate occasions, on March 22 and 23, 2007, he was interviewed by Florida police
while in their custody, that each time he was given his Miranda rights and executed waivers, and
that the interrogations were recorded. In the body of the memorandum, Brown made a number
of factual assertions concerning his characteristics including an assertion that he “was of
unsound mind” by reference to the August 2008 competency evaluation, that he was in his “late
forties,” and that he was “only of average intelligence.” The memorandum acknowledged that
Brown was given Miranda warnings, that his two detention interrogations lasted “several hours,”
and that he “does not allege a deprivation of sleep or water.” Brown did not file an individual
affidavit in support, so none of these factual assertions were submitted in evidentiary form.
Neither were the police reports. The State did not file a response.
       A hearing was conducted two days after the motion was filed. No testimony or other
evidence was offered at the hearing. Defense counsel noted that the parties had stipulated to the
district court’s consideration of the psychological evaluation. It is entirely unclear whether the
stipulation included the district court’s consideration of the factual assertions made by Brown in
his memorandum or the police reports attached thereto.
       At the hearing, Brown did not allege that his statements were obtained because of police
coercion. Instead, he argued only that his statements were not voluntary because of mental
infirmity. The State’s argument was also primarily focused on this issue. The district court


                                                 8
approached the matter as it was presented by the parties, concluding that any statements that
Brown made to law enforcement agencies were not rendered involuntary based upon any claim
of a mental health deficiency.
       On appeal, Brown does not continue to advance his argument below that the “evidence”
he presented shows he was mentally incapable of voluntarily confessing. Rather, Brown now
argues that his suppression motion should have been granted because the State presented no
evidence whatsoever to meet its burden of proving that his statements were voluntary.
       Brown is correct in asserting that it was the State that bore both the burden of going
forward with evidence and the burden of persuasion on Brown’s suppression motion. In State v.
Davila, 127 Idaho 888, 908 P.2d 581 (Ct. App. 1995), we described “[t]he procedure for
establishing the voluntariness of a confession” as follows:
       Generally, the prosecution can meet its burden of proving a prima facie [case] of
       voluntariness by eliciting from the interrogating officer that the suspect had not
       been threatened or promised anything and appeared to freely decide for himself to
       forego the assistance of counsel and to provide an incriminating statement. If the
       defendant introduces evidence suggesting official overreaching and a significant
       impact of that overreaching upon the suspect, of course, the prosecution may well
       have to respond with more detailed and persuasive evidence in order to meet its
       burden of persuasion.

Id. at 891, 908 P.2d at 584 (quoting C. MCCORMICK ET          AL.,   MCCORMICK ON EVIDENCE § 151
(4th ed. 1992).    From the record before us, it appears that the prosecutor was under the
misperception that Brown, rather than the State, bore the burden of proof on the suppression
motion, for he argued that “our position is that there’s nothing in the record, absolutely devoid in
the record, to indicate that the statements that he made to [the Florida detective] and/or others in
the state of Florida meet anybody’s definition of involuntary.” The State presented no evidence
about the circumstances of the interrogations or Brown’s mental acuity at the time. On the other
hand, Brown did not even allege that he made his statements because of coercive police activity,
which is a necessary predicate to a finding that a confession is not “voluntary” within the
meaning of the Due Process Clause of the Fourteenth Amendment. Connelly, 479 U.S. at 167.
Nor did he offer any evidence that the mental condition for which he was evaluated in Idaho in
August of 2008 had any bearing upon the voluntariness of his statements made in Florida nearly
a year and one-half earlier. However, determining that Brown presented little or no evidence of
involuntariness does not mean that the State met its affirmative burden to prove voluntariness. In


                                                 9
short, the record is devoid of adequate evidence from which the trial court could make any
finding concerning the voluntariness or involuntariness of Brown’s statements to Florida police.
       Although we are mindful that it was the State which failed in its burden of proof, we are
unwilling to hold that Brown is thereby entitled to a windfall in the form of a suppression order
in the absence of any allegation or evidence that the Florida police used coercive tactics. As we
said in State v. Bower, 135 Idaho 554, 558, 21 P.3d 491, 495 (Ct. App. 2001): “Use of the
exclusionary rule imposes a price upon society in that it often enables the guilty to escape
prosecution. Therefore, the exclusionary rule should be employed only when there has in fact
been a violation of the defendant’s constitutional rights.” An evidentiary vacuum does not
enable a court to make the necessary findings. In this circumstance, we are constrained to vacate
the order denying Brown’s suppression motion and remand for a new hearing at which,
presumably, the State will present some relevant evidence bearing upon the voluntariness or
involuntariness of Brown’s statements to Florida officers. If, on remand, the district court grants
Brown’s suppression motion, he must be allowed the opportunity to withdraw his guilty plea and
have his judgment of conviction set aside.         If however, on remand, the court denies the
suppression motion, Brown’s guilty plea and judgment of conviction need not be disturbed.
Because the issue has come before this Court on a conditional plea preserving Brown’s right to
appeal the denial of his suppression motion, we expressly state that because we are remanding
for further proceedings on the motion, Brown has not yet “prevailed” on this issue. That is, we
are not granting suppression of Brown’s confessions, which is the relief he sought in this appeal.
Therefore, he has no immediate right to withdraw his plea pursuant to Idaho Criminal
Rule 11(a)(2).
C.     Interception and Photocopying of Brown’s Correspondence While Incarcerated
       Brown next challenges the denial of his motion to suppress evidence obtained by police
through their inspection of nonprivileged letters that he sent while incarcerated in the county jail.
Evidence presented on this motion established that Brown’s outgoing nonprivileged mail had
been opened and photocopied.        Brown asserts that this intrusion was investigative, not in
furtherance of the security of the jail or other legitimate penological interest, and that this search
of his mail violated the Fourth Amendment.
       The Fourth Amendment to the United States Constitution prohibits unreasonable searches
and seizures. Warrantless searches are presumed to be unreasonable. State v. Weaver, 127 Idaho


                                                 10
288, 290, 900 P.2d 196, 198 (1995). See also Arizona v. Gant, 556 U.S. 332, 338 (2009).
The Fourth Amendment is not implicated, however, unless the person invoking its protection had
a “justifiable,” “reasonable,” or “legitimate expectation of privacy” that was invaded by the
government action. Smith v. Maryland, 442 U.S. 735, 740 (1979). A defendant attempting to
suppress evidence bears the burden to show such a privacy interest and thus, “standing” to
challenge a search. State v. Holland, 135 Idaho 159, 162, 15 P.3d 1167, 1170 (2000); State v.
Bottelson, 102 Idaho 90, 92, 625 P.2d 1093, 1095 (1981). See also Rakas v. Illinois, 439 U.S.
128, 138-40 (1978) (prior “standing requirement” is subsumed in substantive Fourth Amendment
analysis, which “focuses on the extent of a particular defendant’s rights under the Fourth
Amendment”).
          Nearly a century ago, the United States Supreme Court held that the Fourth Amendment
does not prohibit the examination of prisoners’ mail. Stroud v. United States, 251 U.S. 15, 21
(1919). In Stroud, letters written by a detainee were later used as evidence at trial. The Supreme
Court held that there was no constitutional violation because the letters were obtained “under
established practice, reasonably designed to promote the discipline of the institution.” Id. While
Stroud may be thought to resolve the claims presented here by Brown, some courts have
questioned that decision’s continued authority regarding a prisoner’s privacy interest in view of
the Supreme Court’s more expansive interpretation of the privacy interests protected by the
Fourth Amendment in Katz v. United States, 389 U.S. 347 (1967). See United States v. Brown,
878 F.2d 222, 225 (8th Cir. 1989); United States v. Kelton, 791 F.2d 101, 102-03 (8th Cir. 1986);
United States v. Savage, 482 F.2d 1371, 1372-73 (9th Cir. 1973); 5 W. LAFAVE, SEARCH AND
SEIZURE § 10.9(c) (5th ed. 2012). In Katz, the Supreme Court abandoned the notion that Fourth
Amendment protections were tied exclusively to locations or property rights and instead held
that its prohibition of unreasonable searches protects an individual’s legitimate expectation of
privacy, including a reasonable expectation of privacy in one’s communications. Katz, 389 U.S.
at 353.
          Following Katz, courts have used differing approaches to address inmates’ claims of
unconstitutional mail inspections. A few courts have looked to the specific facts of the case to
determine whether there was a “justifiable purpose” for examining a particular individual’s mail.
Savage, 482 F.2d at 1373 (in absence of a showing of a justifiable purpose of imprisonment or
prison security, interception and photocopying of letter violated the Fourth Amendment);


                                               11
Witherow v. Crawford, 468 F. Supp. 2d 1253, 1267 (D. Nev. 2006) (allowing interception of the
inmates’ mail while investigating whether the inmates were bringing illegal drugs into the
prison); Loza v. Mitchell, 705 F. Supp. 2d 773, 882 (S.D. Ohio 2010) (holding actions were
justified by legitimate penological interest because there was reason to believe outgoing letters
were addressed to material witness); Bowen v. State, 30 S.W.3d 86, 90 (Ark. 2000) (concern for
an inmate on suicide watch was “ample justification for opening their mail”). Other courts have
turned to the institution’s policy to determine whether there was a reasonable expectation of
privacy in outgoing mail. United States v. Whalen, 940 F.2d 1027, 1034-35 (7th Cir. 1991) (no
expectation of privacy in letters that the institutional policy required the inmates to leave
unsealed); State v. Cuypers, 481 N.W.2d 553, 557 (Minn. 1992) (no constitutional violation
when letters inspected according to valid jail regulation that furthers institutional security).
Some of these cases highlight the fact that the inmate was on notice that letters would be
searched which, the courts said, precludes an expectation of privacy. Busby v. Dretke, 359 F.3d
708, 711-12 (5th Cir. 2004) (no expectation of privacy when “on notice” his mail would be
inspected); Smith v. Shimp, 562 F.2d 423, 426-27 (7th Cir. 1977) (a pretrial detainee yields any
expectation of privacy, when “he knowingly exposes [his mail] to possible inspection, by jail
officials”); United States v. Wilson, 447 F.2d 1, 8 (9th Cir. 1971) (guarded language used in a
letter indicated that the inmate was aware the letters would be inspected); State v. Martin, 825
A.2d 835, 849 (Conn. App. Ct. 2003) (no reasonable expectation of privacy after being informed
mail would be monitored); State v. Wiley, 565 S.E.2d 22, 32-33 (N.C. 2002) (no subjective
expectation of privacy when detainees are aware that their mail will be inspected);
Commonwealth v. Moore, 928 A.2d 1092, 1099 (Pa. Super. Ct. 2007) (no expectation of privacy
when inmate “availed himself of the process that exposed his correspondence to the plain view
of prison officials”); State v. Telford, 940 P.2d 522, 525 (Utah Ct. App. 1997) (notice of policy
requiring letters to be “inspected and scanned” eliminated legitimate expectation of privacy).
       A final group of courts have simply held that the institution’s interest in maintaining
security outweigh the inmate’s privacy interest. Kelton, 791 F.2d at 103 (interest in deterring
criminal activity allowed officials to open and copy outgoing mail); United States v. Ligambi,
886 F. Supp. 2d 492, 496-97 (E.D. Pa. 2012) (found no objectively reasonable expectation of
privacy in an inmate’s correspondence); State v. Ruan, 419 N.W.2d 734, 737 (Iowa Ct. App.
1987) (no legitimate expectation of privacy because “the balance must be struck in favor of


                                                12
institutional security”); Sparkman v. State, 968 A.2d 162, 174 (Md. 2009) (reading mail was
acceptable because any expectation of privacy was outweighed by the institution’s security
needs).
          Brown relies upon Ninth Circuit Court of Appeals decisions requiring a specific
justifiable purpose validating a search. In Savage, the Ninth Circuit held that “absent a showing
of some justifiable purpose of imprisonment or prison security the interception and photocopying
of the letter was violative of the [F]ourth [A]mendment.” Savage, 482 F.2d at 1373. That court
later stated that inmates possess a “reasonable expectation of privacy in a sealed letter.” United
States v. Vallez, 653 F.2d 403, 406 (9th Cir. 1981).
          However, the Vallez and Savage rationale may not survive the subsequent Supreme Court
decision in Hudson v. Palmer, 468 U.S. 517 (1984), which addressed prisoners’ Fourth
Amendment rights in the context of random individualized cell searches. The Hudson Court
rejected the view that searches may be constitutionally conducted only according to an
established policy or individualized suspicion. Id. at 528-29. Instead, the Court said that
determining whether an inmate’s expectation of privacy is legitimate or reasonable entails a
balancing of the “interest of society in the security of its penal institutions [against] the interest
of the prisoner in privacy within his cell.” Id. at 527. The Court struck the balance in favor of
security, saying that “society would insist that the prisoner’s expectation of privacy always yield
to what must be considered the paramount interest in institutional security.” Id. at 528. The
Court concluded, “A right of privacy in traditional Fourth Amendment terms is fundamentally
incompatible with the close and continuous surveillance of inmates and their cells required to
ensure institutional security and internal order.” Id. at 527-28. The Hudson analysis has led
some lower courts to question the continued viability of the Ninth Circuit’s analysis in Savage.
See, e.g., State v. Dunn, 478 So. 2d 659, 663 (La. Ct. App. 1985).
          If the Ninth Circuit’s holding in Savage governs, then Brown is correct in his assertion
that the district court erred in holding that the State here made the required showing of some
justifiable penological interest. Although the prosecutor argued that specific aspects of Brown’s
conduct justified inspection of his mail, including Brown’s history of creating false identities for
himself and his wife, his having sent materials out of the jail in violation of jail rules, and his
communications with other persons charged with violent crimes, the prosecutor presented no
evidence to support those assertions. Additionally, there is no evidence in the record of any jail


                                                 13
policy that could support the district court’s finding that the jail had an institutional policy in
place.
         Unfortunately for Brown, however, we conclude that such proof is not required for
affirmation of the district court. See State v. Pierce, 107 Idaho 96, 102, 685 P.2d 837, 843 (Ct.
App. 1984) (a correct ruling based on an incorrect reason may be sustained upon the proper legal
theory). We agree with the district court’s denial of Brown’s motion to suppress evidence gained
from the search of his correspondence because we conclude that Brown possessed no reasonable
expectation of privacy in his nonprivileged mail while he was incarcerated. In our view, the
United States Supreme Court’s analysis in Hudson, balancing the inmate’s claimed privacy
interest against the correctional institution’s security needs, is applicable here. This approach
does not resort to case-by-case resolution dependent upon particular circumstances or
individualized suspicions and recognizes that “loss of freedom of choice and privacy are inherent
incidents of confinement.” Hudson, 468 U.S. at 528 (quoting Bell v. Wolfish, 441 U.S. 520, 537
(1979)). A prison’s security needs that must be weighed against a prisoner’s privacy interest are
readily apparent and were described by the United States Supreme Court as follows:
                 Prisons, by definition, are places of involuntary confinement of persons
         who have a demonstrated proclivity for antisocial criminal, and often violent,
         conduct. Inmates have necessarily shown a lapse in ability to control and
         conform their behavior to the legitimate standards of society by the normal
         impulses of self-restraint; they have shown an inability to regulate their conduct in
         a way that reflects either a respect for law or an appreciation of the rights of
         others. . . .
                 Within this volatile “community,” prison administrators are to take all
         necessary steps to ensure the safety of not only the prison staffs and
         administrative personnel, but also visitors. They are under an obligation to take
         reasonable measures to guarantee the safety of the inmates themselves. They
         must be ever alert to attempts to introduce drugs and other contraband into the
         premises which, we can judicially notice, is one of the most perplexing problems
         of prisons today; they must prevent, so far as possible, the flow of illicit weapons
         into the prison; they must be vigilant to detect escape plots, in which drugs or
         weapons may be involved, before the schemes materialize.

Id. at 526-27.
         Outgoing mail may present less of a security risk than the prospect of contraband secreted
in a prison cell, which was addressed in Hudson, but inmate mail nevertheless raises legitimate
security issues. Inmates may use outgoing mail to communicate to persons on the outside the
inmates’ requests, plans, and methods to smuggle contraband into the institution; to devise and

                                                  14
direct escape strategies; to direct confederates to intimidate witnesses inside or outside of the
institution; or to indirectly communicate threats, harassment, or escape plans to other inmates by
using persons outside as a go between. 4 Monitoring of inmate mail can curtail these security
risks.
         In view of the security risks to be addressed, the prophylactic effect mail inspection
provides, and the settled recognition that diminution of privacy is an inherent “incident of
confinement,” Id. at 528, we hold that the balance must be struck in favor of institutional
security. Any privacy interest claimed by Brown in these circumstances is not one that society
would recognize as reasonable or legitimate. See id. Therefore, the district court did not err in
denying Brown’s motion to suppress evidence gained through inspection of his outgoing letters.
D.       Failure to Present Brown before a Magistrate
         One of the grounds advanced by Brown for his motion to suppress statements he made to
law enforcement officials was a contention that he had not been taken before a federal magistrate
within six hours of his arrest, allegedly in violation of federal law. The district court denied the
motion, and on appeal Brown posits error in this ruling while also acknowledging that the
Federal Rules of Criminal Procedure and 18 U.S.C.A. § 3501(c) are inapplicable to a state
prosecution. Brown has neither cited authority nor made any reasoned argument in support of
this claim of error. Therefore, it will not be considered on appeal. See State v. Zichko, 129 Idaho
259, 263, 923 P.2d 966, 970 (1996) (“When issues on appeal are not supported by propositions
of law, authority, or argument, they will not be considered.”).
E.       Lack of Probable Cause
         During the preliminary hearing at which he was bound over on charges of first degree
murder and grand theft, Brown filed a motion to dismiss those charges on the ground that the
preliminary hearing evidence did not show probable cause for the charges. In support of that
motion, Brown argued that “this type of killing at most was a voluntary manslaughter” and that
he was at most an “accessory after the fact” on the grand theft. Brown’s motion to dismiss both
charges was denied, and he challenges that decision on appeal.

4
       Creative inmates have even attempted to circumvent a policy prohibiting inmate-to-
inmate correspondence by mailing a letter to a nonexistent address and putting a different
inmate’s name on the return address so that when the mail is returned to the prison as
undeliverable, it will go to the other inmate. See Sparkman v. State, 968 A.2d 162, 164 (Md.
2009).

                                                15
       As noted above, the charges against Brown were later reduced to manslaughter and
accessory to grand theft, which are the charges to which he pleaded guilty. Therefore, his
challenge to the sufficiency of the preliminary hearing evidence to establish probable cause for
the higher charges is moot. See State v. Manzanares, 152 Idaho 410, 419, 272 P.3d 382, 491
(2012). Accordingly, we will not address this issue further.
F.     Rule 35 Motion
       The final issue is Brown’s challenge to the district court’s refusal to allow new testimony
in support of Brown’s motion for reduction of his sentences. If, on remand, the district court
grants Brown’s motion to suppress evidence of his statements to police, the judgment of
conviction and sentence will be vacated and this issue regarding Brown’s Rule 35 motion will be
moot. Nevertheless, because the judgment of conviction and sentence may not be vacated on
remand, and in the interest of judicial economy, we will address Brown’s argument.
       Brown was sentenced to a unified term of imprisonment of fifteen years with ten years
determinate for voluntary manslaughter and a concurrent determinate term of five years for
accessory to grand theft. He filed a motion pursuant to Idaho Criminal Rule 35 requesting
reduction of the sentences and sought the court’s permission to submit supporting testimony,
including his own testimony and that of a forensic pathologist, a firearms expert, and a
polygrapher. The district court denied the request to submit this additional evidence. On appeal,
Brown argues that the district court abused its discretion by refusing to allow this additional
testimony and thereby unduly limited the information that the court would consider in deciding
the Rule 35 motion. He asks that we vacate the order denying the Rule 35 motion and remand
for a new evidentiary hearing at which he would be allowed to present his witnesses’ testimony.
       Idaho Criminal Rule 35 states that any motion “shall be considered and determined by the
court without the admission of additional testimony and without oral argument, unless otherwise
ordered by the court in its discretion.” Under the rule, the decision of whether to have an
evidentiary hearing on a motion to reduce a legally-imposed sentence is committed to the sound
discretion of the trial court. State v. Peterson, 126 Idaho 522, 525, 887 P.2d 67, 70 (Ct. App.
1994); State v. Puga, 114 Idaho 117, 118, 753 P.2d 1263, 1264 (Ct. App. 1987). When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine: (1) whether the lower court correctly perceived the issue as one of
discretion; (2) whether the lower court acted within the boundaries of such discretion and


                                               16
consistently with any legal standards applicable to the specific choices before it; and (3) whether
the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
       The district court explained its decision to disallow additional testimony as follows:
                The request for additional evidence is discretionary with the Court. When
       I think back on the case and we had a number of hearings in Sandpoint, pretrial
       hearings, Mr. Brown was quite prolific in his written documents submitted to the
       Court and to everyone else. We had a mediation, a plea, Alford plea, after the
       mediation. We had the presentence report prepared and had the sentencing
       hearing with the full opportunity to call any witnesses who might have something
       relevant to say at the sentencing hearing.
                It doesn’t seem to me that--that there is much to be gained here by calling
       a pathologist, a firearms expert, and a polygrapher. And as far as those--any
       testimony from those people would go to the--seems to me would go to issues of
       guilt, innocence or guilt, and that was taken care of when we took the plea.
                As far as Mr. Brown is concerned, he had the opportunity, as I stated, and
       he submitted reams and reams of written material. So I think that anything he’s
       had to present to the Court has been presented. So I’m going to exercise my
       discretion and deny the request for additional testimony.

       Brown concedes that whether to conduct a Rule 35 hearing is discretionary, but he
contends that “once [the court] held a hearing, it could not unduly narrow its own discretion at
that hearing.” Brown cites State v. Torres, 107 Idaho 895, 693 P.2d 1097 (Ct. App. 1984) in
support of his proposition, but that case is easily distinguishable. In Torres, the district court
mistakenly believed that it lacked discretion to even consider the offered evidence. The court
there did not merely make a discretionary decision to disallow additional evidence but
misperceived that in ruling on the Rule 35 motion, the court was limited to only the information
that had been available to a prior judge when the sentence was imposed. Id. at 898, 693 P.2d at
1100. Here, by contrast, the district court understood the scope of its discretion and declined to
hear proffered experts because it was apparent that their testimony would address matters
relevant principally to the question of guilt rather than sentencing.      We find no abuse of
discretion in that regard. Nor do we find any abuse of discretion in the court’s refusal to hear
additional testimony from Brown who, as the court noted, had an opportunity to present anything
he desired at the sentencing hearing. We also observe that if Brown had any cogent evidence
that would have supported his request for reduction of his sentence, he could have presented it
through affidavits accompanying the motion instead of attempting to present live testimony.



                                                17
       The record shows that the district court understood the scope of its discretion, that it acted
within the bounds of its discretion, and that it did so for a logical reason. Therefore, no abuse of
discretion is shown.
                                                III.
                                         CONCLUSION
       The district court’s order denying Brown’s suppression motion made on the ground that
his confession was involuntary is vacated and the case is remanded for a new hearing on this
motion. In the event that the motion is granted on remand, Brown must be given the opportunity
to withdraw his guilty plea and have the judgment of conviction vacated. The district court’s
orders are in all other respects affirmed. This case is remanded for further proceedings in
compliance with this opinion.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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