Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice
ARNOLD DORSEY ANDERSON
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 951086 April 19, 1996
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal of a judgment entered in a probation
revocation proceeding, we consider whether the exclusionary rule
may be used to exclude evidence suppressed in a prior criminal
proceeding.
Arnold Dorsey Anderson was convicted on December 18, 1989,
in the Circuit Court of Nottoway County on four counts of cocaine
distribution, possession of cocaine with the intent to
distribute, and distribution of not more than one-half ounce of
marijuana. Anderson's punishment was fixed at 20 years'
imprisonment with 12 years of the sentence for each of the
cocaine distribution offenses suspended, a suspended term of 40
years for the possession of cocaine offense, and a term of 30
days in jail for the marijuana offense.
In 1993, while at liberty on probation, Anderson was charged
with possession of cocaine. The Circuit Court of Nottoway County
suppressed most of the Commonwealth's evidence because it was
obtained in violation of Anderson's Fourth Amendment rights and
dismissed the prosecution. Subsequently, the Commonwealth
initiated this probation revocation proceeding in the Circuit
Court of Nottoway County and the court issued a capias requiring
Anderson to show cause why his suspended sentences should not be
revoked. During the probation revocation hearing, the
Commonwealth introduced in evidence the same evidence which had
been suppressed in the 1993 criminal proceeding. The suppressed
evidence included: "two baggies" containing cocaine residue
which had been found in Anderson's bathrobe; Anderson's
statements to the police that he had flushed marijuana down a
toilet; and statements that he had purchased and sold a rock of
crack cocaine and that he had consumed a portion of the cocaine.
Anderson objected to the admission of this evidence for two
reasons. First, Anderson asserted that the doctrine of
collateral estoppel prohibits the Commonwealth from re-litigating
the issue whether the search and seizure was constitutionally
permissible because that issue had been decided adversely to the
Commonwealth in the 1993 criminal proceeding. Second, Anderson
argued that the exclusionary rule prohibits the admission of that
evidence.
The circuit court overruled Anderson's objections,
considered the challenged evidence, revoked 20 years of
Anderson's suspended sentence, and sentenced him to confinement
in the penitentiary. Anderson appealed the circuit court's
judgment to the Court of Appeals and advanced the same arguments
there. The Court of Appeals affirmed the judgment of the circuit
court, Anderson v. Commonwealth, 20 Va. App. 361, 457 S.E.2d 396
(1995), and we awarded Anderson an appeal.
Anderson asserts the same arguments on appeal that he
advanced below. Initially, we note that Anderson failed to make
the record of the 1993 criminal proceedings part of this record,
which is essential to our consideration of his claim of
collateral estoppel. Rhodes v. Commonwealth, 223 Va. 743, 749,
292 S.E.2d 373, 376 (1982). Thus, we are unable to consider the
merits of his assignment of error that "[t]he Commonwealth was
barred by collateral estoppel from presenting the evidence, which
was previously suppressed in a criminal trial, in a revocation of
suspended sentence hearing."
Anderson contends that the circuit court erred in admitting
the evidence that had been suppressed in the 1993 criminal
proceeding. We disagree.
The Fourth Amendment of the United States Constitution
provides that:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
The Fourth Amendment does not contain any provision
expressly prohibiting the use of evidence obtained in violation
of the amendment. Rather, the exclusionary rule is a judicially
created remedy designed to deter future unlawful police conduct.
Elkins v. United States, 364 U.S. 206, 217 (1960). And, as the
United States Supreme Court observed in United States v.
Calandra, 414 U.S. 338, 348 (1974):
Despite its broad deterrent purpose, the
exclusionary rule has never been interpreted to
proscribe the use of illegally seized evidence in all
proceedings or against all persons. As with any
remedial device, the application of the rule has been
restricted to those areas where its remedial objectives
are thought most efficaciously served.
Further, the United States Court of Appeals for the Ninth
Circuit, confronted with the identical issue as that before this
Court, observed that the exclusionary rule "has never been
interpreted to proscribe the use of illegally seized evidence in
all proceedings or against all persons . . . and any extension of
the rule beyond its traditional applicability in criminal
proceedings makes sense only if use of the remedy would deter or
would likely deter police misconduct." United States v. Winsett,
518 F.2d 51, 53-54 (9th Cir. 1975) (citations omitted).
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. And, we observe that the exclusionary rule
already served its deterrent purpose when the illegally seized
evidence was excluded in the 1993 criminal proceeding.
We also note that most jurisdictions which have considered
this issue have held that evidence seized in violation of the
Fourth Amendment is admissible in a probation revocation hearing
even though that evidence is not admissible in a criminal
prosecution to determine guilt. See, e.g., State v. Alfaro, 623
P.2d 8, 9-10 (Ariz. 1980);
People v. Wilkerson, 541 P.2d 896, 898 (Colo. 1975); Bernhardt v.
State, 288 So.2d 490, 500 (Fla. 1974); People v. Dowery, 312
N.E.2d 682, 685-87 (Ill. App. Ct. 1974), aff'd, 340 N.E.2d 529,
533 (Ill. 1975); Tiryung v. Commonwealth, 717 S.W.2d 503, 504
(Ky. Ct. App. 1986); State v. Caron, 334 A.2d 495, 499 (Me.
1975); Stale v. Thorsness, 528 P.2d 692, 695-96 (Mont. 1974);
State v. Field, 571 A.2d 1276, 1279-80 (N.H. 1990); Commonwealth
v. Davis, 336 A.2d 616, 621-22 (Pa. Super. Ct. 1975); State v.
Kuhn, 499 P.2d 49, 51-52 (Wash. Ct. App. 1972), aff'd, 503 P.2d
1061 (Wash. 1972). But see Grimsley v. Dodson, 696 F.2d 303,
304-05 (4th Cir. 1982); United States v. Workman, 585 F.2d 1205,
1209-10 (4th Cir. 1978).
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.