State of Maine V. Schwartz

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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. referred to "unemployment." She then saw the form 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 CRIMINAL DOCKET CUMBERLAND, ss. Docket No CUMCD-CR-2013-01576 STATE OF MAINE vs MICHAEL T SCHWARTZ CUMBERLAND COUNTY JAIL PORTLAND ME 04101 DOCKET RECORD DOB: 08/12/1979 Attorney: VERNE PARADIE PARADIE SHERMAN & WORDEN 11 LISBON ST SUITE 202 LEWISTON ME 04240 APPOINTED 03/13/2013 State's Attorney: JULIA SHERIDAN Major Case Type: FELONY (CLASS A,B,C) Filing Document: INDICTMENT Filing Date: 03/07/2013 Charge(s) 1 FORGERY Seq 8508 17-A GORHAM 0311012012 PORTLAND 703 (1) (A-1) (2) I CUM Class C 2 THEFT BY UNAUTHORIZED TAKING OR TRANSFER Seq 8427 17-A 353 (1} (B) (4) Class C GORHAM I CUM 0311012012 PORTLAND 3 0311012012 PORTLAND MAKING FALSE STATEMENT - UNEMPLOYMENT FRAUD Seq 856 GORHAM 26 1051(1) Class D 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. 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 03/14/2013 Charge(s): 1,2,3 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 03/13/2013 1 TAPE #4804 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. CR 200 Page 1 of 3 7 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. 05/14/2013 HEARING- TAPE 4958 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

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