Present: Hassell, C.J., Keenan, Koontz, Lemons, and Goodwyn,
JJ., and Stephenson and Russell, S.JJ.
JAMES GREGORY LOGAN
OPINION BY
v. Record No. 072342 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
September 12, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The dispositive issue in this appeal is whether the Court
of Appeals erred in holding that the exclusionary rule never
applies to evidence submitted in probation revocation
proceedings, regardless of the searching officer's conduct or
bad faith.
I
The facts relevant to the issue presented are not in
dispute. In 2002, James Gregory Logan was convicted of
selling cocaine as an accommodation under Code § 18.2-248(D).
He was sentenced to five years' imprisonment, with three years
and seven months suspended upon condition that he be of good
behavior for three years and six months from the date of his
release from probation. On August 22, 2003, Logan, while on
probation, was arrested for possession of cocaine. He was
convicted and appealed his conviction to the Court of Appeals,
contending that the search and seizure that yielded the
contraband had violated his rights under the Fourth Amendment
to the United States Constitution. The Court of Appeals,
sitting en banc, reversed Logan's conviction on Fourth
Amendment grounds, Logan v. Commonwealth, 47 Va. App. 168,
173, 622 S.E.2d 771, 773 (2005), and the Commonwealth did not
appeal that decision.
The Commonwealth then sought to have Logan's probation
revoked because he had violated the requirement that he be of
good behavior. The Commonwealth argued that Logan's conduct
in possessing cocaine while on probation was proved and that
the exclusionary rule did not apply at a probation revocation
hearing. Logan argued that the evidence obtained as a result
of an unlawful search and seizure should be excluded from the
probation revocation hearing because the police officer who
made the warrantless search and seizure had acted in bad
faith.
At the probation revocation hearing, Danville police
officer Jerry Lee Pace, Jr. testified that he saw a man whom
he thought was wanted for a felony. Officer Pace followed the
man into a rooming house and up the stairs where he saw the
man and a woman on the landing. The man, who possessed a
piece of crack cocaine, was Logan. Logan was not the wanted
felon.
The trial court conducting the probation revocation
hearing found that the police officer had not acted in bad
faith and that the evidence obtained from the officer's search
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and seizure should not be excluded. The court, therefore,
revoked Logan's probation. Logan filed an appeal with the
Court of Appeals.
II
In the Court of Appeals, Logan contended, as he had done
in the trial court, that the evidence obtained by Officer Pace
should have been suppressed because the officer, in entering
the rooming house, had acted in bad faith. The Court of
Appeals did not consider Logan's bad-faith argument, finding
irrelevant the question whether the officer had acted in bad
faith and holding that the exclusionary rule never applies in
a probation revocation proceeding. Logan v. Commonwealth, 50
Va. App. 518, 524, 651 S.E.2d 403, 406 (2007).
This holding by the Court of Appeals is contrary to
Anderson v. Commonwealth, 251 Va. 437, 440, 470 S.E.2d 862,
863 (1996), in which we held that "the exclusionary rule is
not applicable in a probation revocation proceeding absent a
showing of bad faith on the part of the police." (Emphasis
added.) The Court of Appeals ruled that the United States
Supreme Court, in Pennsylvania Bd. of Probation & Parole v.
Scott, 524 U.S. 357, 364 (1998), had nullified any reason to
apply the exclusionary rule in a probation revocation
proceeding, irrespective of the circumstances that led to the
discovery of the evidence. Logan, 50 Va. App. at 523-24, 651
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S.E.2d at 405. The Court of Appeals, by rejecting the
possible application of the "bad faith" exception, therefore
found that Scott had overruled Anderson by implication. The
Court of Appeals found that it was "governed by the principles
set forth in Scott" and "constrained to find that the
exclusionary rule does not apply to probation revocation
hearings." Id. at 524, 651 S.E.2d at 406.
We conclude that the Court of Appeals' reliance on Scott
is misplaced based upon three relevant distinctions between
Scott and the present case. First, Scott involved a parolee,
rather than a probationer, 524 U.S. at 360, and parolees "have
fewer expectations of privacy than probationers, because
parole is more akin to imprisonment than probation is to
imprisonment," Samson v. California, 547 U.S. 843, 850 (2006).
Second, the parolee in Scott had explicitly consented to a
search of the house and his person as a condition of parole.
524 U.S. at 360. Third, a parole revocation hearing is an
administrative proceeding, and "[a]pplication of the
exclusionary rule would . . . alter the traditionally
flexible, administrative nature of parole revocation
proceedings." Id. at 364. Therefore, we reaffirm our holding
in Anderson and rule that the Court of Appeals erred in
holding that the exclusionary rule never applies in probation
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revocation proceedings and in failing to consider Logan's bad-
faith argument.
III
Accordingly, we will reverse the judgment of the Court of
Appeals and remand the case to the Court of Appeals for a
review of Logan's challenge to the trial court's determination
that the police officer's actions did not constitute bad
faith.
Reversed and remanded.
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