Jeffrey Torrance JOHNSON v. COMMONWEALTH of Virginia
Record No. 2220-93-2
Court of Appeals of Virginia, Richmond
Oct. 17, 1995
462 S.E.2d 907
Robert H. Anderson, III, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judge BENTON, Senior Judge COLE and Retired Judge TRABUE.*
Jeffrey Torrance Johnson (Johnson) appeals the revocation of probation and a suspended sentence on the ground that the evidence used to show violation of his probation was the product of an illegal search and seizure under the Fourth Amendment. At the time this appeal was argued, no appellate decision in this Commоnwealth addressed this specific issue. On May 16, 1995, a panel of this Court determined that the exclusionary rule does not apply in suspended sentence revocation proceedings. See Anderson v. Commonwealth, 20 Va. App. 361, 457 S.E.2d 396 (1995). We hold that the rationale of Anderson applies еqually to a revocation of probation and for the reasons set forth below, affirm the action of the trial court.
In 1991, Johnson was convicted of distribution of cocaine and was sentenced to twenty yеars in the penitentiary with eleven years and seven months suspended on the condition of good behavior and supervised probation upon release after confinement. While on supervised probаtion, in March 1993, police arrested and charged Johnson with a new offense of possession of cocaine with intent to distribute as a result of an investigatory stop, search, seizure, and arrest.
Richmond police received a call that a man with several guns was standing next to a car behind an apartment building in a high crime area. Responding to the call, a police officer observed Johnson driving quickly from behind the building. The officer stopped Johnson and explained that he was investigating a dispatch. The officer did not know Johnson, nor did the officer know of Johnson‘s probationary status. Johnson appeared nеrvous during the stop and the officer requested that he get out of the car so that the officer could conduct a weapons search. The search revealed ten grams of cocaine, $3000 in cash, a pager, and “some bags.” The officer arrested Johnson and charged him with possession of cocaine with intent to distribute.
At Johnson‘s trial on the 1993 offense, the trial court sustained a motion to suppress the еvidence, finding that the arresting officer did not have an “articulable reason” to justify
Johnson contends on appeal that the exclusionary rule should operate in probation revocation hearings to exclude illegally obtained evidence. We disagree.
Historically, the purpose of the exclusionary rule was “to deter police misconduct.” Derr v. Commonwealth, 242 Va. 413, 422, 410 S.E.2d 662, 667 (1991) (citation omitted). Generаlly, the rule is intended to deter police misconduct by denying illegally obtained evidence from being admitted in the defendant‘s criminal trial. In United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), the United States Supreme Court used a balancing test to determine whether the еxclusionary rule should apply to the admission of evidence in grand jury proceedings. Id. at 349, 94 S.Ct. at 620-21. The Court concluded that the potential injury to the grand jury system outweighed the slight deterrent effect of using the exclusionary rule in federal grand jury proceedings. Id. at 351-52, 94 S.Ct. at 621-22.
We find minimal deterrent value in applying the exclusionary rule to revocation hearings. See Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, 507, cert. denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 230 (1988). “[T]he process of revocation hearings ‘should be flexible enough to consider evidence . . . that would not be admissible in an adversary criminal trial.‘” Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972)). In revocation hearings, application of the exclusionary rule would make the revocation proceedings inflexible and punish the сourt rather than the police. A probationer is subject to the
“[P]robation revocation hearings are not a stage in a criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution.” Davis, 12 Va. App. at 84, 402 S.E.2d at 686 (citations omitted). For example, in Davis, we held that a trial court, in its discretion, may admit hearsay testimony in revocation hearings. Id.
The majority of other jurisdictiоns hold that the exclusionary rule does not apply to revocation hearings. See Anderson, 20 Va. App. at 364, 457 S.E.2d at 398; see also U.S. ex rel. Lombardino v. Heyd, 318 F.Supp. 648, 650-51 (E.D.La.1970), aff‘d, 438 F.2d 1027 (5th Cir.), cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1971); People v. Coleman, 13 Cal.3d 867, 120 Cal.Rptr. 384, 393, 533 P.2d 1024, 1033 (1975); People v. Atencio, 186 Colo. 76, 525 P.2d 461, 463 (1974); Brill v. State, 159 Fla. 682, 32 So.2d 607, 610 (1947); People v. Dowery, 20 Ill. App.3d 738, 312 N.E.2d 682, 687 (1974), aff‘d, 62 Ill.2d 200, 340 N.E.2d 529 (1975); Dulin v. State, 169 Ind.App. 211, 346 N.E.2d 746, 751 (1976); State v. Caron, 334 A.2d 495, 499-500 (Me.1975); Lemire v. Bouchard, 113 N.H. 174, 304 A.2d 647, 649 (1973); Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616, 622 (1975); State v. Kuhn, 7 Wash.App. 190, 499 P.2d 49, 51-52, aff‘d, 81 Wash.2d 648, 503 P.2d 1061 (1972). See generally, Philip E. Hassman, Annotation, Admissibility, in State Probation Revocation Proceedings, of Evidence Obtained Through Illegal Search and Seizure, 77 A.L.R.3d 636, 641-46 (1977); 21 Am.Jur.2d Criminal Law § 579 (1981); 16C C.J.S. Constitutional Law § 1123 (1985). We believe that the rationale of Anderson, in light оf the persuasive authority of our sister jurisdictions, is applicable here. Accordingly, we hold that the exclusionary rule has no application in probation revocation hearings.
Some jurisdictions havе held that due process considerations may require suppression of illegally seized evidence in revocation hearings where the record supports a finding that state actors had a bad faith motive in obtaining the evidence of the probation violation. See Anderson, 20 Va. App. at 365, 457 S.E.2d at 398; State v. Proctor, 16 Wash.App. 865, 559 P.2d 1363, 1364 (1977); People v. Stewart, 242 Ill. App.3d 599, 182 Ill.Dec. 773, 780-81, 610 N.E.2d 197, 204-05 (1993). Here, the trial court found, and the record supports, that no bad faith motive was involved in this stop of Johnson‘s vehicle.
Accordingly, for the reasons stated above, we affirm the revocation of Johnson‘s suspended sentence.
Affirmed.
BENTON, Judge, dissenting.
Although another panel of this Court has decided that evidence unlawfully seized from a person by poliсe is admissible as substantive evidence in a proceeding brought to revoke that person‘s probation, that decision, in my judgment, is contrary to the letter and spirit of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Indeed, “the Supreme Court has never exempted from the operation of the exclusionary rule any adjudicative proceeding in which the government offers unconstitutionally seized evidence in direct support of a charge that may subject the victim of a search to imprisonment.” United States v. Workman, 585 F.2d 1205, 1211 (4th Cir.1978).
Moreover, I believe that due process is denied by using illegally obtained evidence as a basis to impose imprisonment.
A probation revocation hearing is adjudiсative. Its first purpose is to determine whether the probationer is guilty of violating a provision of the probation order. Its second is to decide whether he should be continued on probation or be imprisоned. Although such a hearing is not a stage of a criminal prosecution, it is a criminal proceeding that may result in the loss of liberty. For this reason the due process
Considerаtion of the nature of a probation revocation hearing leads to the conclusion that the application of the exclusionary rule will result in approximately the same potential for injury аnd benefit as its application in other criminal adjudicative proceedings. The rule‘s exclusion of some of the evidence about the new charges which form the basis of the complaint about the рrobationer, the delay incident to suppression hearings, and the rule‘s effectiveness in deterring future unconstitutional searches are neither significantly more nor less than in other such adjudicative procеedings. Therefore, the weight to be assigned the potential advantages and disadvantages of applying the rule to probation revocation proceedings cannot be ascertained by genеralized references to the pros and cons of the rule—a subject that has been the topic of lively debate from the moment of the rule‘s promulgation.
Workman, 585 F.2d at 1209-10 (citations and footnotes omitted).
By failing to apply the exclusionary rule, this Court adopts a policy that denigrates judicial and governmental integrity. A court proceeding which results in a denial of liberty from “evidence secured through . . . a flagrant disregard of the procedure [devised to protect constitutional rights] . . . cannot
For these reasons, I would hold that the evidence that was unlawfully seized in violation of the Fourth Amendment should have been excluded at the revocation proceeding.