Anderson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia

ARNOLD DORSEY ANDERSON

v. Record No. 2148-93-2 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MAY 16, 1995

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Denis J. McCarthy for appellant.

Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Janet F. Rosser, Assistant Attorney General,
on brief), for appellee.

This appeal is from a trial court's order that revoked

twenty years of Arnold Dorsey Anderson's suspended penitentiary

sentences of fifty-two years. The sole issue is whether the

trial court erred at the revocation hearing by allowing the

Commonwealth to introduce evidence that Anderson possessed

cocaine, which evidence had been suppressed at an earlier

criminal prosecution against Anderson because the judge ruled

that the cocaine had been illegally seized in violation of the

Fourth Amendment.

In 1989, Anderson was convicted of five felony counts of

distributing and possessing cocaine. He was sentenced to a total

of eighty years imprisonment with sixty-four years suspended.

In 1993, Anderson was charged and prosecuted for possessing

cocaine. However, at trial, the court found that the cocaine had
been seized in violation of Anderson's Fourth Amendment

protection against unreasonable searches and seizures. Based

upon that finding, the court suppressed the cocaine as evidence,

and because that evidence was indispensable to the prosecution,

the court dismissed the indictment charging that Anderson

possessed cocaine. The Commonwealth's attorney then requested

that a capias be issued to show cause why Anderson's suspended

sentence should not be revoked. At the revocation hearing, the

Commonwealth introduced as evidence the cocaine that had been

suppressed at Anderson's earlier trial. The judge found that

Anderson possessed the cocaine and revoked twenty years of

Anderson's suspended sentences.
The Fourth Amendment protects people from unreasonable

searches and seizures. Katz v. United States, 389 U.S. 347, 351

n.9 (1967). Evidence obtained in violation of the Fourth

Amendment is inadmissible in a criminal prosecution for a charged

criminal violation pertaining to the seized evidence. Mapp v.
Ohio, 367 U.S. 643, 655 (1961). By adopting an exclusionary

rule, the Supreme Court sought to curb illegal police conduct in

making unwarranted and unreasonable searches and seizures in

violation of the Fourth Amendment where no other meaningful

sanction against such police misconduct had proven effective.

Id. at 651-53. However, the exclusionary rule is not to be

"'interpreted to proscribe the introduction of illegally seized

evidence in all proceedings or against all persons.'" United

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States v. Leon, 468 U.S. 897, 906 (1984) (quoting Stone v.

Powell, 428 U.S. 465 (1976)) (emphasis added).

Application of the exclusionary rule has been "restricted to

those instances where its remedial objectives are thought to be

most efficaciously served." Arizona v. Evans, ___ U.S. ___, ___,

115 S. Ct. 1185, 1191 (1995). In determining whether to extend

the exclusionary rule to proceedings other than the immediate

criminal prosecution which resulted from the illegal search or

seizure, the inquiry must be whether to do so effectively or in a

meaningful way furthers the primary purpose of the rule, that is

to "deter future unlawful police conduct." United States v.

Janis, 428 U.S. 433, 446 (1976); see also Reynolds v.

Commonwealth, 9 Va. App. 430, 435, 388 S.E.2d 659, 662 (1990).

Many state and federal courts which have considered whether the

purpose of the rule is served by excluding illegally seized

evidence in secondary proceedings have refused to extend the

exclusionary rule to proceedings for the revocation of probation,

parole, or a suspended sentence. See Chase v. State, 522 A.2d

1348 (Md. Ct. Spec. App. 1987); Thompson v. United States, 444

A.2d 972 (D.C. 1982); see also Annot. 77 ALR 3d 636 (1977 and

1994 Supp.) (discussing the exclusionary rule in both state and

federal revocation proceedings).

Anderson urges us to follow the holding of the United States

Fourth Circuit Court of Appeals in United States v. Workman, 585

F.2d 1205 (4th Cir. 1978), which applied the exclusionary rule in

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probation revocation hearings. The Workman decision has been

strongly criticized by other courts that have considered it. See

United States v. Bazzano, 712 F.2d 826, 833 n.2 (3rd Cir. 1983)

(stating that Workman "greatly overstates" the deterrent effect

of the rule), cert. denied, 465 U.S. 1078 (1984). We decline the

invitation to adopt the Workman holding.

Although a probation, parole, or suspended sentence

revocation proceeding is not criminal in nature, the outcome of

such a proceeding may result in the loss of one's liberty. See

Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686

(1991). Nevertheless, unless the evidence shows that the police

officers who illegally seized the evidence also acted in bad

faith, the exclusionary rule should not be used to prevent the

evidence from being admitted into evidence in a secondary

proceeding, such as a probation revocation hearing. See State v.

Turner, ___ P.2d ___, 1995 WL 81615 (Kan.); Chase, 522 A.2d at

1362-64. Unlike the situation in Leon, where evidence seized

under a defective warrant is excluded unless the state proves

that the police acted in good faith, we hold that illegally

seized evidence may be admitted in a secondary proceeding unless

the defendant shows that the officer's conduct was so egregious

that it constituted bad faith. Only when an officer acts in bad

faith do we need to extend the exclusionary rule of Mapp to

secondary proceedings in order to curb improper police conduct.

Conduct which may constitute bad faith on behalf of a police

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officer, over and above the illegal search itself, may take many

forms. See People v. Stewart, 610 N.E.2d 197 (Ill. App. 1993)

(evidence obtained in illegal warrantless search can be excluded

if police know defendant is a probationer); State v. Proctor, 559

P.2d 1363 (Wash. App. 1977) (police conducting illegal

warrantless search of known probationer can amount to bad faith

justifying excluding evidence). However, we find nothing in the

record which proved that the police officer knew or thought

Anderson was on probation or parole, expected that the evidence

could be used against Anderson for a secondary purpose, or

conducted the search or seizure with a purpose of harassing or

annoying Anderson.
Accordingly, we affirm the trial court's ruling.

Affirmed.

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