dissenting: I dissent from the last four paragraphs of the majority opinion. Society has paid a high price as a result of the exclusionary rule. I would not extend the exclusionary rule one iota beyond what is required by the United States Supreme Court. Suppression of evidence for violation of an accused’s Fourth Amendment rights is not a constitutional requirement. It is a court-made rule. The United States Supreme Court has applied this rule to criminal prosecutions, not to probation revocation hearings.
Probation is an act of grace. The probationer is not required to accept probation. When the probationer chooses probation rather than prison the probationer accepts certain restrictions (some statutory and others imposed by the court) and agrees to abide by those restrictions. First and foremost, the probationer agrees to obey the law.
Here, the probationer had committed and pleaded guilty to eight burglaries, seven felony thefts, and one conspiracy to possess marijuana with intent to sell. Within 14 months of being placed on probation for conspiracy to possess marijuana with intent to sell, marijuana and cocaine were found in the probationer’s home and he admitted to selling cocaine.
The parties have conceded the search warrant used in searching the probationer’s home was invalid. This clearly makes the evidence seized excludable in determining guilt of a criminal offense in both state and federal criminal trials. Thus, the probationer cannot be convicted for the new offenses of possession of marijuana or cocaine or sale of cocaine. The invalid search warrant does not, and should not, exclude the evidence in a probation revocation hearing.
Trial courts look to the purpose of the exclusionary rule and balance the potential injury to society, such as the loss of ability to enforce probation requirements, against the potential benefits of applying the exclusionary rule to the probation system. In my opinion, the marginal increase in deterrence of law enforcement *29officers’ conduct would be slight while damage to the probation system would be great.
The majority would limit the exclusionary rule in probation revocation hearings to those cases where police conduct is “so egregious that its deterrence outweighs the court’s need for information,” a standard that I would suggest is vague but clearly intended to cover extraordinary, extreme, and flagrant conduct on the part of law enforcement officers. Clearly, it does not cover mistakes of fact, technical defects in warrants, and good faith efforts in obtaining warrants, etc. It appears to me that for conduct which meets the “egregious” threshold, which in turn “may” warrant an exception to the rule that illegally seized evidence from a probationer is not excluded from probation revocation proceedings, other effective deterrents are available. For instance, a law enforcement officer could be prosecuted for perjury or making a false oath when false information is knowingly given to obtain a search warrant; civil causes of action are available for extraordinary, extreme, and flagrant violations of Fourth Amendment rights; and departmental disciplinary proceedings are also available.
On the other side of the scale, to exclude reliable evidence of a violation of probation would deter society from rehabilitating the probationer and encourage the probationer to continue disobeying the law. The court services officers’ time available to supervise and rehabilitate a probationer (time already at a premium and carefully rationed by necessity) would be decreased as it would be spent attempting to obtain admissible evidence.
To permit admission of the evidence is reasonably related to legitimate probation system interests. Law enforcement officers and probation officers know the evidence will be excluded in prosecution for crimes, so exclusion under the rule adopted by the majority would add only minimally to the exclusionary rule’s deterrent effect on law enforcement officers’conduct. That minimal effect would be largely offset by the other remedies available to deter “egregious” conduct that meets the majority’s standard.
I would adopt the majority opinion but delete the last four paragraphs of the opinion and the last sentence of the syllabus.