IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 16, 2005
STATE OF TENNESSEE v. KENNETH HAYES
Appeal from the Criminal Court for Davidson County
No. 97-C-1735 Steve Dozier, Judge
No. M2004-00715-CCA-R3-CD - Filed June 28, 2005
The Appellant, Kenneth Hayes, appeals the revocation of his probation by the Davidson County
Criminal Court. In 1997, Hayes pled guilty to felony possession of cocaine and was sentenced to
a term of eight years with service of one year in confinement followed by supervised probation. In
2004, a probation violation warrant was issued alleging that Hayes violated probation by possessing
cocaine. At the revocation hearing, Hayes sought suppression of the cocaine upon grounds that it
was illegally seized. The trial court found that the police search was valid and revoked Hayes’
suspended sentence. After review, we conclude that the cocaine was illegally seized.
Notwithstanding, we further conclude that in the absence of police harassment or that the evidence
was obtained in a particularly offensive manner, the exclusionary rule is not applicable to probation
revocation proceedings. Accordingly, the order of revocation is affirmed.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL, J., joined.
Brent Horst, Nashville, Tennessee, for the Appellant, Kenneth Hayes.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Victor S. Johnson III, District Attorney General; and Pamela Anderson, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
Factual Background
On November 25, 1997, the Appellant pled guilty to possession of more than .5 grams of
cocaine with intent to sell. He was sentenced as a Range I standard offender to an eight-year split-
confinement sentence with one year to be served in confinement and the remainder to be served on
supervised probation. On January 28, 2004, a violation warrant was filed against the Appellant
alleging that he violated the terms of probation by possessing 2.2 grams of cocaine and by failing
to report the arrest to his probation officer.
Prior to the February 2, 2004 revocation hearing, the Appellant filed a motion to suppress the
evidence obtained as a result of his December 26, 2003 arrest. During a combined revocation and
suppression hearing, Officer Jacob Pilarski with the Metro Police Department testified that he was
on routine patrol of Twelfth Avenue North between Buchanan and Clay Streets on the evening of
December 26, 2003. While there, he noticed the Appellant, whom he was not familiar with, sitting
in a parked car in front of 1902 Twelfth Avenue, an area known for drug activity. The Appellant
remained seated in the vehicle for five to ten minutes before Officer Pilarski approached. Pilarski
testified that the following encounter occurred after approaching the vehicle:
I just asked him - - he was sitting in this vehicle. I asked him what he was
doing there, if he had ID, if he had a driver’s license. I asked if I could view it, which
he let me.
At that point I went and checked his record, checked for warrants.
The officer testified that the record check revealed “three or four prior drug-possession
charges.” At this point, the officer returned to the vehicle and continued his questioning of the
Appellant. “I asked him if he had any illegal narcotics in his vehicle, crack, marijuana, cocaine,
drugs, any - - any kinds of - - type of drug, pistols, guns. . . .” The Appellant responded that he did
not. The officer then asked the Appellant “to step from the vehicle.” The Appellant was placed
against his car and searched, but the pat-down search revealed no contraband. The officer then asked
the Appellant if he could search the vehicle, and the Appellant consented. During the search of the
vehicle, the officer found approximately 2.2 grams of crack cocaine located in the fuse panel of the
dashboard.
The trial court denied the Appellant’s motion to suppress finding that “there was a reasonable
suspicion for the officer to approach the defendant and conduct an inquiry.”1 Based upon this
finding, the court revoked the Appellant’s suspended sentence and ordered that the remainder of his
original eight-year sentence be served in confinement. This appeal followed.
Analysis
A trial court's findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); see also State v.
1
The officer testified that while on patrol of Twelfth Avenue North, he “saw a group of guys,” and upon his
approach the group dispersed leaving behind a jacket containing marijuana and scales. The State does not argue nor is
there any suggestion that the Appellant was part of that group. Indeed, the officer testified that the Appellant was seated
alone in his car during the events. Apparently these facts were relied upon by the trial court to find reasonable suspicion.
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Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). This court reviews the trial court's application of the
law to the facts under a de novo standard of review without deference to the determinations of the
trial court. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
I. Legality of the Search
Both the Fourth Amendment of the United States Constitution and Article 1, Section 7 of the
Tennessee Constitution protect against unreasonable search and seizure. However, these
constitutional protections "are implicated only when a police officer's interaction with a citizen
impermissibly intrudes upon the privacy or personal security of the citizen." State v. Daniel, 12
S.W.3d 420, 424 (Tenn. 2000).
Our supreme court has held that:
[W]hat begins as a consensual police-citizen encounter may mature into a seizure of
the person. While many of the circumstances in this case point in the direction of a
consensual police-citizen encounter, one circumstance reflects a distinct departure
from the typical consensual encounter - - Officer Wright’s retention of Daniel’s
identification to run a computer check. Without his identification, Daniel was
effectively immobilized. Abandoning one’s identification is simply not a practical
or realistic option for a reasonable person in modern society. Contrary to the State’s
assertion, when an officer retains a person’s identification for the purpose of running
a computer check for outstanding warrants, no reasonable person would believe that
he or she could simply terminate the encounter by asking the officer to return the
identification. Accordingly, we hold that a seizure within the meaning of the Fourth
Amendment and Article I, section 7 occurred when Officer Wright retained Daniel’s
identification to run a computer warrants check.
Id. at 427 (internal citations omitted). The police officer’s interaction with the Appellant in the
instant case is similar to, if not more intrusive than, that in Daniel. As in Daniel, the record is void
of any evidence of reasonable suspicion of criminal activity. We conclude that the holding in Daniel
is controlling in this case and that the Appellant’s detention constituted a de facto arrest. As such,
we conclude that the trial court’s ruling that reasonable suspicion existed was error.
Notwithstanding the unlawful seizure, we must next determine whether the Appellant’s
consent, obtained during the illegal detention, was obtained by exploitation of the Fourth
Amendment illegality. See State v. Huddleston, 924 S.W.2d 666, 674 (Tenn. 1996) (citing Wong
Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)). Applying the considerations
of Huddleston, no Miranda warnings were provided to the Appellant, consent immediately followed
the illegal seizure, and no intervening event occurred. These facts weigh against a finding of
attenuation of the taint. Accordingly, we conclude that the search and seizure of the cocaine was
unreasonable under Fourth Amendment protections.
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II. Application of the Exclusionary Rule
Notwithstanding our conclusion that an unlawful seizure occurred, our review is not
complete. The question remains as to whether the exclusionary rule is applicable to revocation
proceedings.2 A probation violation hearing is not part of the criminal prosecution process, as
revocation of probation is remedial rather than punitive. Morrissey v. Brewer, 408 U.S. 471, 92 S.
Ct. 2593 (1972); see also Tenn. Code Ann. § 40-35-311 (2003). Revocation proceedings are
informal, as evidenced by relaxed rules regarding the admissibility of evidence, the absence of a jury,
and a preponderance of evidence burden of proof. See Tenn. Code Ann. § 40-35-311 (c) - (e); see
generally Barker v. State, 483 S.W.2d 586, 588 (Tenn. 1972). Probationers are not entitled to
receive the full range of due process rights. Barker, 483 S.W.2d at 589.
Probation revocation provides a procedure to determine whether a probationer should be
deprived of his/her liberty for failure to comply with conditions of probation or a breach of the law.
See Tenn. Code Ann. § 40-35-311(a). “Revocation deprives an individual, not of the absolute liberty
to which every citizen is entitled, but only of the conditional liberty” provided in the terms of
probation. Morrissey, 408 U.S. at 481, 92 S. Ct. at 2600. Violation of probation suggests an
individual is not prepared fully to enter society, so it is vital that “all reliable evidence shedding light
on the probationer’s conduct be available during probation revocation proceedings.” United States
v. Winsett, 518 F.2d 51, 55 (9th Cir. 1975). Indeed, at the revocation hearing “the trial judge may
enter such judgment upon the question of such charges as the trial judge may deem right and proper
under the evidence adduced before the trial judge.” Tenn. Code Ann. § 40-35-311(d).
The Supreme Court has denied extension of the exclusionary rule to parole revocation
proceedings, concluding that “the rule would provide only minimal deterrence benefits in this
context, because application of the rule in the criminal trial context already provides significant
deterrence of unconstitutional searches.” Pennsylvania Bd. of Probation and Parole v. Scott, 524
U.S. 357, 364, 118 S. Ct. 2014, 2020 (1998).3 The State has an ‘overwhelming interest’ in ensuring
compliance with the conditions of probation. See Scott, 524 U.S. at 365, 118 S. Ct. at 2020 (quoting
Morrissey, 408 U.S. at 477, 92 S. Ct. at 2593). Application of the exclusionary rule to probation
revocation proceedings would, at most, discourage only the intentional search of probationers.
Winsett, 518 F.2d at 54. The exclusion of evidence establishing a violation of probation would
decrease the State’s power to ensure conformance with probation conditions by preventing a
probationer from facing the consequences of disobedience. Scott, 524 U.S. at 353, 118 S. Ct. at
2020. It would obstruct the court’s ability to gauge a probationer’s improvement or regression and
2
W hile ruling that the seizure of the cocaine was admissible based upon a valid search, the trial court held that
even if error, the exclusionary rule was not applicable to revocation proceedings. As such, the court found that the
evidence could be considered. The trial court recognized that the question presented was one of first impression in this
state.
3
“Revocation of probation . . . is constitutionally indistinguishable from the revocation of parole.” Gagnon v.
Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759-1760 n.3 (1973).
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compel probation officers to spend more time gathering admissible proof concerning those who
violate conditions of probation. Winsett, 518 F.2d at 55 (citing United States ex. rel. Sperling v.
Fitzpatrick, 426 F.2d 1161, 1165 (2nd Cir. 1970)). More significantly, it would allow those “who
would otherwise be incarcerated to escape the consequences of their actions.” Scott, 524 U.S. at 364,
118 S. Ct. at 2020. These same effects exist regardless of whether a probationer has consented to
searches as a condition of probation.
We are constrained to note, however, that revocation proceedings are not provided carte
blanche exemption from all evidence acquired unlawfully. A number of jurisdictions which have
employed the principle that the exclusionary rule does not apply at probation revocation proceedings
nonetheless afford an exception that suppression of the evidence is permitted when unlawfully
obtained evidence results from police harassment or if evidence is obtained in a particularly
offensive manner. See, e.g., Winsett, 518 F.2d at 55; United States v. Farmer, 512 F.2d 160, 162 (6th
Cir. 1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973); Illinois v. Holliday, 743 N.E.2d
587, 593 (Ill. App. 3d 2001); Dulin v. State, 346 N.E.2d 746, 751 (Ind. Ct. App. 1976). Generally
harassment requires more than mere evidence that the police knew the accused was on probation at
the time of the encounter. Holliday, 743 N.E.2d at 593-94. We adhere, however, to the admonitions
in Winsett:
[W]hen the police at the moment of search know that a suspect is a probationer, they
may have a significant incentive to carry out an illegal search even though knowing
that evidence would be inadmissible in any criminal proceeding. The police have
nothing to risk: If the motion to suppress in the criminal proceedings were denied,
defendant would stand convicted of a new crime; and if the motion were granted, the
defendant would still find himself behind bars due to revocation of probation. Thus,
in such circumstances, extension of the exclusionary rule to the probation revocation
proceeding may be necessary to effectuate Fourth Amendment safeguards.
Winsett, 518 F.2d at 54 n.5.
We conclude that exclusion of evidence in a revocation hearing that is obtained as a result
of police harassment or obtained in a particularly offensive manner is consistent with our statute
which permits the trial judge to enter judgment “as the trial judge may deem right and proper” under
the evidence presented. See Tenn. Code Ann. § 40-35-311(d). The record in this case does not
establish that the officer was informed that the Appellant was a probationer, only that he had prior
convictions. In the absence of any evidence of police harassment or that the evidence was obtained
in a particularly offensive manner, we conclude that the exclusionary rule is not applicable in this
case.
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CONCLUSION
Based upon the foregoing, we affirm the Davidson County Criminal Court’s revocation of
the Appellant’s probation and reinstatement of the judgment as originally imposed.
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DAVID G. HAYES, JUDGE
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