Nisonger v. State ( 1978 )

ROSE, Justice,

specially concurring, with whom McCLINTOCK, Justice, joins.

I concur in the result herein, but I disagree with the court’s conclusion with respect to the voluntariness of the appellant’s consent, authorizing censorship of his mail. Such an “authorization” is inherently coercive — since it evolves from a no-consent, no-mail situation — and, therefore, should not be considered as a waiver under the Fourth Amendment. Palmigiano v. Travisono, D.R.I., 317 F.Supp. 776.

This does not avoid the fact, however, that the defendant, nevertheless, voluntarily issued the letter — with knowledge of the mail-censorship probability. This would be sufficient, for me, to support admissibility of the letter in the absence of other coercive circumstances under United States v. Baumgarten, 8 Cir., 517 F.2d 1020. In other words, I would hold, as did the court in Baumgarten, supra, that the scanning of the defendant’s letter was a valid “entry” (in the search and seizure context). The “plain-view” doctrine then comes into play to justify the admission of the part of the letter which was read to the jury.