                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 16-1239
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                NICHOLAS STANISHIA,
                                                    Appellant
                                   ________________

                            On Appeal from the District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 1-14-cr-00265-001)
                       District Judge: Honorable John E. Jones, III
                                   ________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 1, 2016

    Before: HARDIMAN, SCIRICA, Circuit Judges and ROSENTHAL, District Judge

                             (Opinion Filed: April 25, 2017)


                                   ________________

                                      OPINION**
                                   ________________





  The Honorable Lee H. Rosenthal, United States District Judge for the Southern District
of Texas, sitting by designation.
**
   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

       Nicholas Stanishia appeals the denial of his motion to suppress evidence obtained

during a search of his prison cell and subsequent conviction for conspiracy to threaten a

witness from a prior state criminal case. We will affirm.1

                                             I.

       This case arises from events while Stanishia was serving a life sentence for murder

at the Southeastern Correctional Institution in Lancaster, Ohio. In May 1997, Stanishia

lured his ex-girlfriend, Leslie White, and her boyfriend, Christopher Bertz, to a bar and

then followed them back to Bertz’s apartment in Columbus, Ohio. Stanishia broke down

the apartment door and shot Bertz and White, who died from her injuries. Bertz survived

and called police, who were unable to apprehend Stanishia. In February 2000, while a

fugitive in Wichita, Kansas, Stanishia broke into the home of a woman and raped her.

Stanishia was apprehended soon thereafter.

       In September 2001, an Ohio jury found Stanishia guilty of aggravated murder,

attempted murder, and burglary based on the events of May 1997. Bertz was a key

witness in the murder trial and identified Stanishia as White’s killer. Stanishia was

sentenced to life imprisonment plus ten years. In 2004, following Stanishia’s

identification through DNA evidence, a Kansas jury found him guilty of burglary, rape,

and kidnapping for the events of February 2000, and he was sentenced to an additional

714 months imprisonment.


1
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
                                             2
       While incarcerated in Ohio, Stanishia located Bertz, with the aid of other inmates

and his former prison psychologist, with whom he had an illicit relationship. On August

1, 2014, a confederate of Stanishia’s, Martin Jay Wilson, placed a gas can filled with

water on Bertz’s back porch. Several days later, on August 4, Stanishia called Bertz, and

demanded Bertz sign an affidavit recanting his trial testimony and promise not to testify

in Stanishia’s then-pending state appeal. Stanishia asked if Bertz had seen the gas can at

his home, and when Bertz confirmed he had, Stanishia told him the next time the gas can

would not be filled with water.

       Bertz contacted the local police, who requested assistance from the Federal Bureau

of Investigation. FBI Agent Eric Rardain contacted Investigator Todd Cordial, an

employee at Southeastern Correctional Institution. Rardain told Cordial about the

threatening calls to Bertz from Stanishia and informed Cordial he suspected Stanishia had

a cellphone in the prison. Rardain asked Cordial to “do what you guys do.” J.A. at 46.

       On August 12, Bertz received the affidavit in the mail at his office. Stanishia

called Bertz again on August 21, 2014, and demanded he sign the affidavit. Stanishia

claimed to be a member of the Aryan Brotherhood and threatened to kill Bertz and his

family if Bertz did not comply.

       Following the second call, Rardain contacted Cordial again. Cordial reviewed

closed circuit television tapes at Southeastern Correctional Institution and, based on the

time and length of the telephone conversation with Bertz, determined Stanishia was

inside of a cleaning supply closet at the time of the phone call. Another inmate, Jody Six,

stood watch outside of the closet.

                                             3
       On August 24, 2014, prison officials searched the closet and Stanishia’s bunk, but

were unable to locate the cell phone. During a search of Six’s living area, prison officials

recovered a laundry bag that contained personal papers belonging to Stanishia. Cordial

seized the papers as contraband, based on institution rules which forbade an inmate from

holding property for another. The papers contained letters and e-mails from Stanishia’s

confederates regarding Bertz, as well as a draft copy of the affidavit. On October 9, 2014,

after obtaining a warrant, FBI agents searched the entire dorm and recovered two cell

phones and additional evidence.

       On October 15, 2014, a federal grand jury indicted Stanishia and four

codefendants for conspiracy to commit interstate transmission of an extortionate threat

and a threat to injure (18 U.S.C. § 371), extortionate threat to injure in interstate

communications (18 U.S.C. § 875(b)), and threat to injure in interstate communications

(18 U.S.C. § 875(c)). Stanishia filed a motion to suppress the evidence recovered during

the August 24, 2014, prison search. Following a hearing, the trial judge denied the motion

to suppress. A jury convicted Stanishia on all three charges of the indictment, and he was

sentenced to 240 months imprisonment. Stanishia now appeals the denial of the motion to

suppress and his conviction.

                                              II.

       We review the denial of a motion to suppress for clear error as to the underlying

facts, but exercise plenary review as to its legality in light of the properly found facts.

United States v. Lafferty, 503 F.3d 293, 298 (3d Cir. 2007). A convicted prisoner does not

have a legitimate expectation of privacy in his cell and accordingly “the Fourth

                                               4
Amendment proscription against unreasonable searches does not apply within the

confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). “The

recognition of privacy rights for prisoners in their individual cells simply cannot be

reconciled with the concept of incarceration and the needs and objectives of penal

institutions.” Id.

       Stanishia relies on United States v. Cohen, in which the United States Court of

Appeals for the Second Circuit recognized a limited Fourth Amendment right for a

pretrial detainee whose prison cell was searched at the request of law enforcement. 796

F.2d 20, 23–24 (2d Cir. 1986). We need not decide today whether to consider the Cohen

exception for pretrial detainees, because it is inapposite to this case. The Second Circuit

has declined to extend the Cohen exception to convicted prisoners. Willis v. Artuz, 301

F.3d 65, 68 (2d Cir. 2002). Convicted prisoners, like Stanishia, have no Fourth

Amendment right with respect to searches of their cells. Hudson, 468 U.S. at 526; see

Parkell v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016) (concluding a convicted prisoner

has no “right to maintain private spaces for possessions,” in contrast to a convicted

prisoner’s limited Fourth Amendment privacy right with respect to bodily searches).

       Stanishia argues the reasoning of Cohen should nonetheless apply to his case

because the search of his cell was based on a tip from law enforcement and was not

motivated by prison safety concerns. This argument fails for two reasons. First, the

Fourth Amendment right of privacy does not extend to searches of prison cells of

convicted prisoners, regardless of the reason for the search, because proper

administration requires prison staff have unfettered access to prison facilities. Hudson,

                                             5
468 U.S. at 527 (“[A]dministration of a prison . . . would be literally impossible . . . if

inmates retained a right of privacy in their cells.”); see Willis, 301 F.3d at 69 (“[A]

convicted prisoner’s loss of privacy rights can be justified on grounds other than

institutional security.”). Thus, the reason for the search is irrelevant to the analysis in this

case. Second, the trial judge correctly concluded prison officials would have searched the

area—regardless of an FBI request to investigate a possible crime—upon learning about a

possible contraband cell phone because a cell phone in a prison poses serious institutional

security risks. Accordingly, the District Court correctly held that the August 24, 2014,

search did not violate the Fourth Amendment.

                                              III.

       For the foregoing reasons and those provided in the District Court’s opinion, we

will affirm the denial of Stanishia’s motion to suppress, and affirm the judgment of

conviction and sentence.




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