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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