*1 Perry v PERRY PEOPLE 14, 1993, January Decided Docket No. 126915. Submitted at Detroit. 7,1993, sought. September appeal at 9:25 Leave to a.m. Wayne D. a bench trial in the Juan was convicted after fifty grams possession of less than of heroin Circuit Court of with the intent to deliver and was sentenced to lifetime not tion. A condition of the was that he violate later, warrant was laws the state. Six months search possession at his residence and he was arrested for executed fifty grams charged more than of cocaine. He was also with J., court, Jackson, probation violation. The Thomas E. found adequate grounds that the search warrant was issued without therefore, and, finding probable suppressed the evi- for cause charge possession. Following dence and of cocaine dismissed violation, hearing regarding charge and on testimony of executed the basis of the one of the officers who warrant, guilty the search the court found the defendant violating probation, probation, a condition of his revoked his imprisonment. twenty years’ him to two to He sentenced appealed, alleging basing that the court erred in its decision to probation solely upon pursu- revoke his the evidence obtained illegal ant to an search and seizure in violation of the Fourth Amendment Appeals held: The Court considering illegally 1. The trial court did not err in revoking probation. Further- seized evidence the defendant’s more, there were verified facts on the record from which constructively trial court could have found that the defendant possessed cocaine. permissible range imposed 2. The sentence was for within the underlying offense. J., Shepherd, stated that rule does where, case, knowledge as in this had no or reason to know that the defendant was on at the time the search warrant was executed. Griffin, P.J., result, concurring appli- in the stated that the hinge solely cability of the rule should not on the knowledge narrow whether the had actual Opinion by Shepherd, target reason know that of their search and Rather, probationer. totality seizure was a of the circum- surrounding stances the Fourth Amendment violation should applied be examined and the *2 proceedings only in those cases where the exclusion substantially pur- of the evidence would further the deterrent pose of the rule and the need for deterrence outweighs probation system. the harm the The exclusion of substantially the evidence in this case would not further the deterrent Affirmed. J., dissenting, Fitzgerald, stated that the applies probation proceedings, and that this case
should be reversed and remanded a for determination whether probation the defendant’s should be continued or revoked with- unconstitutionally out reliance on the seized evidence. Kelley, Attorney General, Frank J. Thomas L. Casey, General, O’Hair, Solicitor John D. Prosecut- ing Attorney, Timothy Baughman, A. Chief of Training, Appeals, Research, and and Don W. Principal Attorney, people. Atkins, for the Payne, appeal. Jr., John B. for the defendant on Shepherd Griffin, P.J., Before: and and Fitz- JJ. gerald, appeals right J. Defendant as of
Shepherd, from 21, 1989, trial court’s November order revok- ing 21, 1988, his November sentence of lifetime possession for with intent to deliver less fifty grams 333.7401(2)(a)(iv); than MSA heroin, MCL
14.15(7401)(2)(a)(iv), imposing prison a twenty years. sentence of two to We affirm. Following a bench trial 28, 1988, on October possession defendant was convicted of of heroin with an intent to deliver and sentenced to lifetime probation, permitted by as 771.2; MCL MSA April later, 28.1132. Six 19, 1989, months on search warrant was executed at defendant’s resi- Opinion Shepherd, J. possession of more for arrested he was dence and Shortly thereafter, fifty grams on of cocaine. than charged April with 23, 1989, was defendant based upon violation of violation tion Thereafter, on October this state. laws of criminal suppressed the evidence 1989, court the trial possession was warrant the search because cocaine finding proba- adequate grounds for issued without 26, 1989, dismissed the court cause. On October ble possession charge but refused of cocaine without violation warrant dismiss hearing regarding facts and circumstances surrounding the warrant. hearing held on was violation testimony of the basis of 1989. On
November one search war- who executed of the officers defendant violated found that rant, the trial court he not violate the condition *3 of this state. laws argues appeal, trial that defendant On upon probation solely his to revoke decision court’s illegal pursuant to an
the evidence obtained Amend- the Fourth seizure violated search and ment exclusionary ex- Amendment the Fourth issue whether
The probation applies clusionary revocation to rule impression.1 proceedings first is one of nearly in con- unanimous are Federal decisions apply: cluding rule does that the to exclusionary rule applicability The 1 640, 645; Hardenbrook, App 243 Previously, 68 Mich v (1976), "parenthetically” the exclu this Court noted 705 NW2d hearings. Never inapplicable revocation sionary to rule is specific theless, issue whether did not deal with Hardenbrook illegal barring search obtained an evidence rule instead, but, proceedings, dealt applies to seizure Arizona, 384 US the rule of Miranda whether with (1966), applied L Ed 2d 694 16 86 S Ct hearings. 350 201 Mich 347 Opinion by Shepherd, parole revocation has been considered by eight circuit courts. Seven of those courts have one, inapplicable. the rule Only held Circuit, the Fourth contrary. Having has held to the reviewed courts, holdings of these we conclude the rea- soning applied by the majority per- of circuits is suasive, and we aline ourselves with them. agree We with and underscore the conclusion of application the Third Circuit that of the exclusion- ary proceedings rule to revocation will not achieve the deterrent effect behind the rule. That observa- where, here, tion is particularly true alleg- as edly offensive seizure is conducted state officers prelude filing as a to the charges. of state Because conduct, deterrence any, if can accomplished be within the framework of the state proceeding, application of the exclusionary parallel federal proceeding would be Moreover, redundant. as noted by the Third Cir- cuit, application of the exclusionary rule at this stage would not achieve a deterrence as much as it would inhibit pursuit public interests of the in the protection against of its "convicted crimi- nals who have liberty abused the afforded them.” (CA Finney, States v [United 10, 1990); citations omitted.] Among applied the federal circuits that have not the Fourth Amendment rule to revo- proceedings cation is the Sixth Circuit. United (CA 1975), Farmer, States v F2d 160 cert den 423 US 987 recognized Circuit, however, Ninth has an exception to this rule where the knew or suspect had reason to believe that was a probationer. United States Winsett, F2d *4 (CA 1975). citing 9, There, court, the United States Calandra, 338, v US 94 Ct 613; S exclusionary 38 L Ed (1974), 2d 561 stated that the rule potential should not be extended unless the harm probation system substantially outweighs to the by Shepherd, Opinion p supra, 54. Accord- potential Winsett, benefits. Appeals con- ingly, Court the Ninth Circuit does not Amendment Fourth that "the cluded require suppression in a of evidence proceeding time of arrest where, at the knowledge police nor had neither search, the and reason suspect awas that the to believe p Id., 55. tioner.” adopt the Ninth rule set forth I would recognized, Court has As this in Winsett.
Circuit the exclusionary preserve rule is to police integrity Peo- judicial misconduct. and deter ple NW2d Jordan, 187 Mich that is no indication there 294 police targeting Where they that were to know or had reason knew probationer, rule then a proceed- apply not should Michigan. ings in present case,
Applying I con- rule to the this revoking not err the trial court did clude that probation. no indication There is defendant’s reason to knew or had record that they probation when on defendant was know that executed a April residence on at his
search warrant rule did not Thus, 1989. pursuant apply to the evidence obtained to bar seizure. search and. panel only who holds of this member I am if the rule does that knowledge know that or reason to no had time the search at the on was defendant concurring Judge Griffin’s was executed. warrant respect balancing applies opinion test with Fitzgerald’s this takes dissent issue. pro- applies position proceedings the same extent bation proceeding. any applies in other criminal it that There is nothing holding majority than more for *5 App 201 Mich Opinion by Shepherd, dispositive ruling properly that was panel urges Supreme revoked. The Court to grant appeal leave to to resolve the re- garding when and under what circumstances the exclusionary proceedings. applies publishing opinion We are this point out to that, the bench and the bar as of the opinion, date of this solved in this issue has not been re- Michigan. contrary note,
I also
assertion,
to defendant’s
that
there were verified facts on the record from
which the trial court could have found that defen-
possessed
constructively
dant
house,
cocaine in the
People Hill,
v
464,
433 Mich
470;
Although guidelines do not sentencing, People tion Leske, v App (1991), 466 NW2d 361 this Court guidelines point has held that departure are a useful determining where on the continuum People the sentence should fall. Peters, 191 Mich 159; NW2d 479 Where the sen- imposed major tence to be is for controlled sentencing substance offense for which the court is impose directed law to a sentence that cannot specified be years, more or less than a term of required length court fix of both the minimum and maximum sentences within those 769.9(3); 28.1081(3). limits. MCL MSA sentencing underlying At the for the offense, held on 21, 1988, November the trial court stated range the minimum sentence for defendant by Griffin, P.J. thirty minimum sen- months. The twelve to was imposed years two on November tence of range underly- permissible for the within the was ing offense.
Affirmed. (concurring). I concur in the result P.J.
Griffin, *6 Shepherd. by Judge judgment the The of reached court therefore affirmed. lower is separately, however, I cannot because I write Shepherd’s analysis agree with much of regarding applicability of the the proceedings. my view, In to applicability of the rule should the hinge solely on the whether narrow knowledge know or reason to the had actual target their search and seizure the probationer. Rather, the I would examine awas surrounding totality the circumstances the apply the exclu- violation and Fourth Amendment proceed- sionary rule (1) ings only in the exclusion of those cases where substantially further the deter- the evidence would (2) exclusionary rule, rent need probation outweighs the harm to for deterrence system.
i judicially created rule is "a The safeguard remedy designed Fourth Amendment through rights generally effect, its deterrent right personal than rather constitutional aggrieved.” party Leon, 468 US United States (1984). The 897, 906; exclusionary 3405; 82 L Ed 2d 104 S Ct to disal-
rule has never been invoked
illegally
in all
evidence
the use of
seized
low
proceedings
against
persons.
States v
all
United
by Griffin, P.J.
Calandra, 414
L
338;
613;
US
94 S Ct
38 Ed 2d 561
(1974).
any
beyond
Rather,
extension of the rule
its
applicability
proceedings
traditional
criminal
only
remedy
warranted
would
where
use of
appreciable
result
deterrence
supra
deciding
Leon,
Thus,
at 909.
misconduct.
exclusionary rule,
extend
the likelihood that
the rule’s deterrent effect will be
should
achieved
against
withholding
be
cost of
balanced
relia-
truth-seeking process.
ble information from the
Krull,
340, 347;
Illinois v
480 US
107 Ct
S
e.g.,
See,
L Ed
Janis,
2d 364
United
States
433, 454;
428 US
96 S Ct
whether to extend the
rule to
proceedings
balancing
tion revocation
involve a
potential
probation system
harm to the
if the
potential
evidence is excluded
deterring police
versus
benefit of
e.g.,
See,
misconduct.
United
(CA 1975);
Winsett,
States v
54-55
*7
1987).
parte
(Ala,
Caffie,
Ex
831,
516 So 2d
834
If
potential
outweighs
substantially
the
harm
the
potential benefits,
then the rule should not be
supra
Calandra,
extended. See
at 351-352.
Although
directly
by
addressed
either
the
parties
my colleagues,
or
I would hold that
the
Michigan2
guar-
United States1 and
constitutional
against
antees
unreasonable searches and seizures
regard
are coextensive with
I
this issue.
find no
compelling
impose
reason to
a
different
more
upon
parallel provision
restrictive construction
Michigan
required of Constitution than is
People
Collins,
United States Constitution.
v
(1991).
8,
438
In United States v (CA 3, 1983), Circuit Court the United States Third following important emphasized Appeals, a criminal trial and distinctions between hearing: tion revocation considering probation exclusionary on In the effect rule, it extending
proceedings of
*8
probationer
that because the
must be remembered
crime,
guilty of a
and his
already
has
been found
356
347
by Griffin, P.J.
"conditional,”
United States v
liberty
only
Basso,
(2d
Cir, 1980),
632 F2d
cert
denied,
(1981),
965;
1480;
450 US
101 S
67 L
Ct
Ed 2d 613
is,
effect,
hearing
more a
resentencing
taking
rights.
than a
of
As the Su-
Brewer,
preme
Court indicated in Morrissey v
471;
2593;
(1972),
US
92 S Ct
regression, also it force but would personally spend more of their time proof concerning proba- those admissible accept or will not rehabilita- important, exclusionary rule should be Most only its deterrent would be invoked when agree substantially I cannot that deter- furthered. every would be served revoca- rence proceeding irrespective of the nature of the tion Amendment violation. Fourth Shepherd agree Judge great I with and with the weight authority rule is pro- fully applicable to not ceedings. proba- Admissibility, See anno: state proceedings, of evidence obtained tion revocation through illegal seizure, 77 ALR3d 636.
search and Shepherd’s disagree Judge However, I with belief knowledge of the defendant’s that a officer’s trigger mechanically probationary status should application of the rule. Shepherd’s knowledge my view, In test is simply Montez, too broad. See United States v (CA adoption a rule 1992). F2d such of evidence in would lead to the exclusion simply proceedings where the facts tion revocation given competing justify inter- not exclusion do ests at stake. of the defendant’s a relevant knowledge Although officer’s probationary certainly status is scrutiny careful consideration to cause knowledge actions, such should the officer’s by Griffin, P.J. determining applica- the sole for serve as basis bility Rather, the deter- excluding rent effect assessed and the evidence should be
weighed against the harm to our probation system.
hi My regarding substantially views this issue are scholarly analysis influenced review and *10 applicability note, contained in of the exclu- sionary probation proceedings, rule to revocation 17 Mem St U L R 555 Its author articulates following accept urge the I rule of law that and Supreme adopt: the Court to decision whether to the [The proceeding] rule to a only should carefully reviewing be made after all the surrounding particular facts the fourth amend- ment violation to determine whether exclusion substantially will pur- further the rule’s deterrent pose. Since the rule is not constitutionally man- dated, defeating the courts must carefully avoid its purpose by deterrent mechanically applying the every proceeding. rule to . . . analysis court’s must focus specifically [T]he any application on deterrent benefits of the rule might provide. Various factors the courts should consider include whether the officer knew that the of victim the fourth amendment violation was a probationer, faith acting good whether the officer was in conducting search, when whether evidence was secured for primary purpose using proceeding. it in a revocation Only reviewing surrounding after all the factors will the court properly be able to assess whether exclusion of the evidence will further the rule’s purpose. deterrent analysis The court’s stop this issue must not however, point, at this for deterrence alone does by Fitzgerald, Dissent invoking rule. As justify not set Calandra, forth the courts must remain con- necessarily cerned with the harm that will through result incriminating evidence. exclusion Probation, which allows a convicted defendant incarceration, designed protect society avoid is attempting to If while rehabilitate the defendant. probationary privilege a defendant’s abuse of his is review, judicial goals barred from the dual severely impaired. become Therefore, ap- the determination whether ply rule to a First, proceeding requires two-step analysis. any appreciable courts must ascertain whether deterrent benefits can be achieved sion. If for deterrence system dence is answer exclusionary through exclu- so, the courts if must then decide the need outweighs injury incriminating necessarily will suffer if evi- proceeding. Only from if excluded the should the yes to the latter applied. rule be [Id. 580-581.] applying test, After the above I concur with affirming Shepherd the decision of the lower court. I do so for the reason that present case the exclusion of the evidence would substantially further the deterrent *11 join remaining I in portions opinion. Shepherd’s (dissenting). respectfully J. I dissent
Fitzgerald, majority’s from the conclusion that the Fourth not, Amendment rule does in the absence of an indication that knew they targeting had reason to that know were a probationer, proceed- ings. Workman, See United States v 1978). (CA Noting similarity 1209-1211 be- proceeding tween a violation and other adjudicative proceedings, criminal the Fourth Cir- Appeals cuit Court of stated: 201 Mich by Fitzgerald, Dissent exempted from Supreme has never Court [T]he any adjudi- operation the cative offers government proceeding which sup- in direct unconstitutionally seized evidence port of a of a charge may subject victim that Indeed, has the court imprisonment. search observed rule standing to that invoke recognition that the need premised "is on a for exclud- and hence the rationale for deterrence ing strongest the Govern- are where the evidence imposi- conduct would result ment’s unlawful tion of a criminal sanction on the victim of citation search.” omitted.] [Id. proceeding Although it is a stage prosecution, of a criminal trial and similar to a criminal proceeding criminal hold, I would liberty. result a loss may therefore, trial court must determine should be continued defendant’s whether on the unconstitution- or revoked without reliance and re- evidence and would reverse ally seized determination. mand for such a