Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Millette, JJ., and Russell, S.J.
JAMES GREGORY LOGAN OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 090706 January 15, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal requires us to revisit the question of the
application of the exclusionary rule to probation revocation
proceedings. Reaffirming our holding in Anderson v.
Commonwealth, 251 Va. 437, 470 S.E.2d 862 (1996), we hold that
the exclusionary rule is not applicable in probation
revocation proceedings absent a showing of bad faith on the
part of the police.
Facts and Proceedings
On August 22, 2003, Danville Police Officer Jerry L. Pace
followed James Gregory Logan into a rooming house under the
mistaken apprehension that Logan was a man named Chappell for
whom there was an outstanding felony warrant. Logan, a
resident of the rooming house, was standing on the second-
floor landing of a stairway leading upward from the entrance
hall. Officer Pace saw Logan hand a piece of crack cocaine to
another person and arrested him for possession of cocaine.
This event gave rise to a ramified chain of proceedings
leading to the present appeal.
Logan’s motion to suppress the Commonwealth’s evidence on
Fourth Amendment grounds was denied by the Circuit Court of
the City of Danville, which held that Logan had no expectation
of privacy in the common areas of the rooming house. He was
convicted of possession of cocaine and sentenced to four years
and six months imprisonment, with three years suspended. That
conviction was reversed by the Court of Appeals sitting en
banc on the ground that the evidence obtained pursuant to the
officer’s warrantless entry into the rooming house violated
Logan’s rights under the Fourth Amendment. Logan v.
Commonwealth, 47 Va. App. 168, 622 S.E.2d 771 (2005) 1 (Logan
II). The Commonwealth did not appeal that reversal.
At all times pertinent to Logan II, Logan was on
probation for an earlier conviction, in the same circuit
court, for distribution of cocaine as an accommodation in 2001
(Logan I). In that case he was sentenced, on March 15, 2002,
to five years imprisonment. The sentence was suspended,
conditioned upon Logan’s serving one year and five months
imprisonment, followed by 12 months of supervised probation,
with Logan to be of good behavior for three years and six
months after his release from probation.
1
The Court of Appeals, en banc, affirmed the prior
decision of a panel of the Court, but did so on the narrow
ground that the Commonwealth had conceded that the rooming
house was not open to the general public. Id.
2
After the conviction in Logan II, the officer supervising
Logan’s probation under Logan I reported to the court that
Logan had not been of good behavior based upon the facts
leading to his conviction in Logan II. Logan was brought
before the court on a rule to show cause and counsel was
appointed for him, but the revocation hearing was continued
until the Court of Appeals decided Logan II. After the Court
of Appeals reversed the conviction in Logan II, Logan’s
counsel moved the circuit court to dismiss the rule to show
cause, contending that the Commonwealth’s effort to revoke
Logan's probation from Logan I was now based solely upon a
conviction that had been vacated. The Commonwealth asked the
court to revoke probation notwithstanding the reversal, based
not upon the conviction but upon Logan’s failure to be of good
behavior. The circuit court denied the motion to dismiss and
entered an order revoking suspension of the sentence imposed
in Logan I.
Logan appealed the revocation order to the Court of
Appeals. A panel of that Court held, based upon federal
decisions, that the exclusionary rule is never applicable in
probation revocation proceedings. Logan v. Commonwealth, 50
Va. App. 518, 524, 651 S.E.2d 403, 406 (2007). We awarded
Logan an appeal from that judgment and reversed it, remanding
the case to the Court of Appeals for consideration of Logan’s
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contention that the circuit court had erred in finding that
Officer Pace had not acted in bad faith. In so ruling, we
held that the Court of Appeals’ reliance on federal decisions
was misplaced and that the application of the exclusionary
rule to probation revocation proceedings continued to be as we
expressed it in Anderson. Logan v. Commonwealth, 276 Va. 533,
535-36, 666 S.E.2d 346, 347-48 (2008).
Upon remand, the Court of Appeals held that the record
contained no evidence to support a finding that Officer Pace
had acted in bad faith. The officer testified that he had
been in the rooming house on prior occasions and had seen no
signs to indicate that it was not open to the general public. 2
The Court concluded that, although the Commonwealth later
conceded that the rooming house was not in fact open to the
general public, “[the fact that the officer] was mistaken,
however, does not mean that he acted in bad faith.” Logan v.
Commonwealth, 53 Va. App. 520, 526, 673 S.E.2d 496, 499
(2009). The Court of Appeals affirmed the circuit court’s
determination that Officer Pace’s actions did not warrant the
2
Another witness testified that there were signs at and
near the front door saying “No Trespassing” and “Ring or Knock
to Enter.” Officer Pace testified that the only signs he saw
said merely “Rooms.” He said that when he entered, “it was a
storm door, and there’s a wooden door on the inside, but at
that particular time it was standing open.”
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exclusion of his evidence at the probation revocation hearing.
Id. at 527, 673 S.E.2d at 499. We awarded Logan an appeal.
Analysis
In Anderson, we said:
We hold that the exclusionary rule is not
applicable in a probation revocation proceeding
absent a showing of bad faith on the part of the
police. There is a strong public interest in
receiving all evidence relevant to the question
whether a probationer has complied with the
conditions of probation. Application of the
exclusionary rule in a probation revocation
proceeding would frustrate the remedial and
protective purposes of the probation system, because
a court would not be permitted to consider relevant
evidence of the probationer's rehabilitation or
regression.
251 Va. at 440, 470 S.E.2d at 863. We continue to adhere to
that holding. In Anderson, we explained the difference
between the application of the exclusionary rule in a criminal
trial and its application in probation revocation proceedings.
The rule is a judicially-created remedy, not an individual’s
constitutional right. The purpose of the rule is to deter
future unlawful police conduct. Exclusion of unlawfully
seized evidence at trial makes its seizure profitless to the
police. Excluding it in a probation revocation proceeding
will ordinarily serve only to impede the search for truth
where the inquiry is whether the defendant has violated the
terms of his probation. Id.
5
The circuit court made an express factual finding that
the officer did not act in bad faith. Such findings are
binding upon appeal unless they are plainly wrong or without
evidence to support them because the credibility of witnesses
and the weight accorded to evidence are matters solely for the
fact-finder, who has an opportunity to see and hear that
evidence as it is presented. Elliott v. Commonwealth, 277 Va.
457, 462-63, 675 S.E.2d 178, 181 (2009).
“Bad faith,” in Fourth Amendment jurisprudence, is not
the mere opposite of “good faith,” as those terms have been
judicially defined. In applying the bad faith exception
stated in Anderson, exclusion of proof is warranted only upon
a showing of conscious wrongdoing by an officer. 3 Absence of
the objective “good faith” required for certain constitutional
exceptions to the warrant requirement is not sufficient to
trigger the exclusionary rule in probation revocation
proceedings. The United States Supreme Court has repeatedly
refused to apply Fourth Amendment exclusion standards to
probation revocation proceedings. Pennsylvania Bd. of Prob. &
Parole v. Scott, 524 U.S. 357, 363-64 (1998).
3
“Bad faith” is defined differently in the civil context,
but even there it connotes the “conscious doing of a wrong.”
See Black’s Law Dictionary 139 (6th ed. 1990).
6
A “good faith” analysis, in Fourth Amendment cases, turns
upon a purely objective determination: the conclusion an
objective police officer would reasonably have drawn under the
circumstances known to him at the time of the search rather
than the officer’s subjective motivation or state of mind.
Brigham City v. Stuart, 547 U.S. 398, 404 (2006); Illinois v.
Krull, 480 U.S. 340, 349-50 (1987); United States v. Leon, 468
U.S. 897, 922 n.23 (1984); Robinson v. Commonwealth, 273 Va.
26, 34-38, 639 S.E.2d 217, 222-24 (2007).
A “bad faith” analysis, by contrast, turns almost
entirely upon the subjective motivation or state of mind of
the police officer making the search. In order to invoke the
exclusionary rule in a probation revocation case, the evidence
must show that the officer making the search was motivated by
bias, personal animus, a desire to harass, a conscious intent
to circumvent the law, or a similar improper motive. See
Commonwealth v. Michaliga, 947 A.2d 786, 792-93 (Pa. Super.
2008) (bad faith is not simply bad judgment or negligence but
rather it implies conscious wrongdoing); Spencer v. State, 667
S.E.2d 223, 225 (Ga. Ct. App. 2008) (police must not act in
bad faith or in an arbitrary or capricious manner when
searching a probationer); Plue v. State, 721 N.E.2d 308, 310
(Ind. Ct. App. 1999) (evidence seized illegally will be
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excluded in a revocation proceeding if seized as part of a
continuing plan of police harassment).
The record in the present case is devoid of evidence that
would tend to show any such motivation on the part of Officer
Pace. Therefore, applying the rule in Anderson, we will
affirm the judgment of the Court of Appeals insofar as it
upholds the revocation of Logan’s probation and suspended
sentence.
Four months after we had remanded this case to the Court
of Appeals for reconsideration of Logan’s bad faith claim, the
Supreme Court of the United States decided Herring v. United
States, 555 U.S. ___, 129 S.Ct. 695 (2009). That case
involved the application of the exclusionary rule to evidence
seized in a search that violated the Fourth Amendment because
the police were mistakenly told that the defendant was wanted
on an outstanding warrant in an adjoining county, when in fact
that warrant had been recalled but the adjoining county’s
database had not been updated to show the recall. Herring
involved the application of the exclusionary rule to evidence
offered at a criminal trial, not a probation revocation
proceeding. On remand, the Court of Appeals nevertheless
applied the reasoning of Herring to the question of bad faith
we had directed it to consider. That application may be read
to substitute an objective “good faith” test for the
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admissibility, in probation revocation proceedings, of
evidence that has been seized in violation of the Fourth
Amendment.
Because we adhere to the requirement that bad faith must
be shown in order to trigger the application of the
exclusionary rule in probation revocation proceedings, we
expressly overrule the opinion of the Court of Appeals in
Logan v. Commonwealth, 53 Va. App. 520, 673 S.E.2d 209 (2009),
insofar as it may be read to suggest that our holding in
Anderson is in any way altered.
Affirmed.
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