Johnson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judge Benton, Senior * Judge Cole and
Retired Judge Trabue
Argued at Richmond, Virginia

JEFFREY TORRANCE JOHNSON

v. Record No. 2220-93-2 OPINION BY
JUDGE KENNETH E. TRABUE
COMMONWEALTH OF VIRGINIA OCTOBER 17, 1995

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge

Cheryl Jakim Frydrychowski, Assistant Public
Defender (David J. Johnson, Public Defender, on
brief) for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney General,
on brief), for appellee.

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

Commonwealth 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 equally to a

revocation of probation and for the reasons set forth below,

affirm the action of the trial court.
*
Retired Judge Kenneth E. Trabue took part in the
consideration of this case by designation pursuant to Code
§ 17-116.01.
 In 1991, Johnson was convicted of distribution of cocaine

and was sentenced to twenty years 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 probation, 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 nervous

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 evidence, finding that the

arresting officer did not have an "articulable reason" to justify

the stop. The Commonwealth chose not to go forward with the

criminal charges and the court then dismissed them. However, the

Commonwealth did proceed with a show cause hearing on Johnson's

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alleged violation of probation. In this hearing the trial judge

admitted the evidence obtained from the illegal stop. The trial

court found that Johnson had violated probation and revoked five

years of Johnson's previously suspended sentence.

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). Generally,

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 (1974), the United States Supreme Court used a balancing

test to determine whether the exclusionary rule should apply to

the admission of evidence in grand jury proceedings. Id. at 349.

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.

We find minimal deterrent value in applying the exclusionary

rule to revocation hearings. See Payne v. Robinson, 541 A.2d

504, 507 (Conn.), cert. denied, 488 U.S. 898 (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.

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81, 84, 402 S.E.2d 684, 686 (1991) (quoting Morrissey v. Brewer,

408 U.S. 471, 489 (1972)). In revocation hearings, application

of the exclusionary rule would make the revocation proceedings

inflexible and punish the court rather than the police. A

probationer is subject to the court's lawful orders; yet, the

court, which was not responsible for the illegal search and

seizure, would be unable to enforce its orders if the

exclusionary rule applied in revocation hearings.
"[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 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 jurisdictions 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

(1971); People v. Coleman, 533 P.2d 1024, 1033 (Cal. 1975);

People v. Atencio, 525 P.2d 461, 463 (Colo. 1974); Brill v.

State, 32 So. 2d 607, 610 (Fla. 1947); People v. Dowery, 312

N.E.2d 682, 687 (Ill. App. Ct. 1974), aff'd, 340 N.E.2d 529 (Ill.

1975); Dulin v. State, 346 N.E.2d 746, 751 (Ind. Ct. App. 1976);
State v. Caron, 334 A.2d 495, 499-500 (Me. 1975); Lemire v.

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Bouchard, 304 A.2d 647, 649 (N.H. 1973); Commonwealth v. Davis,

336 A.2d 616, 622 (Pa. Super. Ct. 1975); State v. Kuhn, 499 P.2d

49, 51-52 (Wash. Ct. App.), aff'd, 503 P.2d 1061 (Wash. 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 of 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 have 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, 559 P.2d 1363, 1364 (Wash. Ct.
App. 1977); People v. Stewart, 610 N.E.2d 197, 204-05 (Ill. App.

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.

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Benton, J., dissenting.

Although another panel of this Court has decided that

evidence unlawfully seized from a person by police 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

(1914), and Mapp v. Ohio, 367 U.S. 643 (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 basis to impose imprisonment.
A probation revocation hearing is
adjudicative. 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
imprisoned. 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 clause entitles a probationer to
written notice of his alleged violation; a
hearing at which the evidence against him
must be disclosed; the right to present
witnesses in his own behalf; and, save in
exceptional circumstances, the right to
confront and cross-examine adverse witnesses.
If a serious question of culpability exists,
the probationer is constitutionally entitled
to the assistance of counsel. In 1970
Congress augmented the constitutional
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 requirements by providing a statutory right
to counsel at all federal revocation
hearings. The similarity between many of the
aspects of a criminal trial and a probation
revocation proceeding is illustrated by the
frequent use of the revocation proceeding as
an alternative to trial on new charges
against a probationer. It is also
illustrated by the court's authority to
modify the probationer's sentence.

Consideration 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 and 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
probationer, 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 proceedings. Therefore,
the weight to be assigned the potential
advantages and disadvantages of applying the
rule to probation revocation proceedings
cannot be ascertained by generalized
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

be allowed to stand without making the courts themselves

accomplices in willful disobedience of law." McNabb v. United

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States, 318 U.S. 332, 345 (1943). The Court overlooks the police

officer's violation of the constitution simply because the

officer testified that Johnson was unknown to him when he stopped

Johnson. "'If the Government becomes a lawbreaker, it breeds

contempt for law; it invites every man to become a law unto

himself; it invites anarchy.'" Elkins v. United States, 364 U.S.

206, 223 (1960) (citation omitted).

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.

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