State v. Sears

This petition for review questions whether illegally obtained evidence may be used in a probation revocation proceeding. The state does not dispute for purposes of this review that the evidence in question was the fruit of an illegal search and seizure.

Respondent Timothy Sears was placed on probation on April 30, 1973, after having pleaded guilty to the charge of accessory after the fact to the crime of burglary. The court prescribed the usual general conditions of probation, including the condition that Sears comply with all municipal, state and federal laws and ordinances. Probation was to run until October 30, 1974, and sentencing was deferred for the same period of time. Probation was later extended for an additional 30 days.

On November 4, 1974, Sears’ probation officer petitioned the court to revoke Sears’ probation and impose sentence on the ground that Sears had violated one of the conditions of his probation, specifically the condition which provided that he was to comply with all municipal, state and federal laws. In the affidavit that accompanied the petition, the officer alleged that on or about October 16, 1974, Sears committed the offense of possession of marijuana for the purpose of sale and distribution. Sears denied the allegations of the petition, and a hearing on the petition was set for December 11, 1974, before Judge Burke. The court, on its own motion, continued the hearing until January 14, 1975.

In the interim, Sears was indicted for possession of marijuana for the purpose of sale and distribution on the basis of the same facts that constituted the ground for the petition to revoke probation. Sears moved to suppress the evidence in question, marijuana, arguing that it was the product of an illegal search. Judge Kalamarides ruled in Sears’ favor and suppressed the evidence on January 13, 1975. That case was subsequently dismissed.

At the probation revocation hearing of January 14, 1975, Judge Burke stated that he believed Judge Kalamarides’ decision on the legality of the October 6th search was binding upon him. Therefore, he refused to reconsider the question of whether the evidence was legally seized. He went on to state that under the terms of Criminal Rule 26(g) of the Alaska Rules of Criminal Procedure, he believed the state was precluded from making any use of the evidence at the revocation hearing. After submission of additional authority on the issue of whether Rule 26(g) properly applies to the instant situation, Judge Burke, on January 23, 1975, ordered the petition to revoke dismissed. From this ruling the state seeks review. The order dismissing the petition to revoke was stayed pending review.

The question of whether the exclusionary rule should apply in probation revocation proceedings has never been decided by this court. It is the state’s contention that Criminal Rule 26(g) does not preclude the admission of illegally seized evidence in a probation revocation proceeding. Criminal Rule 26(g) states:

Evidence illegally obtained shall not be used for any purpose including the impeachment of a witness.

Moreover, the state argues that as a matter of policy, illegally seized evidence should be admitted in revocation proceedings. In considering this question we find ourselves in a unique position. Counsel have revealed to us no jurisdiction which has expressed the exclusionary rule in terms as broad as Alaska’s Rule of Criminal Procedure 26(g). Rule 26(g) goes beyond what have hitherto been considered the minimum constitutional requirements for an exclusionary rule. The question is how far it reaches. We turn now to an examination of the language, context and history of Rule 26(g).

Respondent argues that the language of Rule 26(g) is explicit in its prohibition of the use of illegally seized evidence: within the terms of the rule itself there apparently is no limitation on the kind of illegally seized evidence to be excluded, the type.of criminal proceeding from which it is to be excluded, or the uses which are prohibited.

The state asserts, however, that despite the seemingly unequivocal language of Rule 26(g), the context in which the rule is found indicates that the rule is intended to apply only to trial proceedings, and not to probation revocation proceedings. Rule 26 falls within Part VI (Rules 23-31) of the Rules of Criminal Procedure, which is entitled “Trial”. Petitioner argues that the section titles of the criminal rules denominate the various purposes of the different rules, and that therefore application of Rule 26 is limited to trial situations. In addition, petitioner points out that Rule 26 itself begins in subsection (a), with a reference to its applicability at trial.

Criminal Rules 1 and 2, which concern the general scope, purpose and construction of the criminal rules, provide in part as follows:

Rule 1. Scope. These rules govern the practice and procedure in the superi- or court in all criminal proceedings

Rule 2. Purpose and Construction. These rules are intended to provide for the just determination of every criminal proceeding. . . . [emphasis added]

When read together with Rule 26(g), Rules 1 and 2 tend to support respondent’s argument that Rule 26(g) is a rule of general applicability, which is to be applied in all criminal proceedings except where rules or statutes provide otherwise. If parole or probation revocation- hearings are “criminal proceedings” within the meaning of the rules, a conclusion that Criminal Rule 26(g) applies to them would be mandated.

However, it is important to recognize that a probation or parole revocation proceeding is distinguishable from normal adjudications of guilt at trial. In Martin v. State, 517 P.2d 1389, 1398 (Alaska 1974), we said:

However, a probation revocation hearing is not a criminal prosecution looking toward an adjudication of guilt or innocence. .

We do not interpret Article I, section 11 of the Alaska Constitution to extend the right of bail to probation revocation proceedings. While the Alaska Constitution and statutes insure to the accused in all criminal prosecutions a right to bail, Martin was not the accused in a criminal prosecution at the time he requested bail from the trial court. [footnotes omitted]

Probation or parole revocation proceedings then are not a part of the normal criminal process. At the point where a party is potentially subject to such a proceeding he has already been adjudicated a criminal and a court has already passed sentence. We therefore hold that probation and parole revocation proceedings are not criminal proceedings within the meaning of our Rules of Criminal-Procedure.

The history and policy behind Rule 26(g) add support to our conclusion that the rule was not meant to apply to probation or parole revocation hearings. Rule 26(g) as it presently exists was drafted by the Criminal Rules Revision Commission in 1972 and adopted by this court in 1973. On July 11, 1972, the committee, chaired by Avrum Gross, submitted its proposed rule changes in a report addressed to then Chief Justice Boney. The committee’s notes on the proposed rules, and the accompanying letter of transmittal, contain comments material to our inquiry into the intent and policy behind Rule 26(g). The committee’s notes to the proposed Rule 26(g) are as follows:

Rule 26 — Subsection (g) is proposed to make clear that the protections of the Miranda Rule are not eroded. See Harris v. New York, 401 U.S. 222 [, 91 SCt. 643, 28 L.Ed.2d 1] . . . (1971) and the standing problem discussed in Dimmick v. State, 473 P.2d 616 (Alaska 1970). Note: It must [jíc] emphasized that a split exists within our committee concerning the inclusion of proposed Rule 26(g) which reads:

‘Evidence illegally obtained shall not be used for any purpose including the impeachment of a witness.’

The minority believe the police can be properly disciplined without turning criminals free. The majority adopt the reasoning of Justice Connor in Dimmick v. State, 473 P.2d 616, 625 (Alaska 1970) that it is important that the government obey the law as well as enforce it and by excluding otherwise probative evidence official misconduct is deterred. The minority would at least want an objective test as proposed by Justice Rabinowitz at page 622 in Dimmick.

It should be emphasized that Proposed Rule 26(g) is a substantial change. The majority consider the policy of the proposal can be decided in the abstract best since the pressure and publicity of an actual defendant whose conviction might be reversed are absent.

Both petitioner and respondent refer to the committee’s comments to support their respective positions concerning the intent and policy underlying the formulation of Rule 26(g). Petitioner asserts that Rule 26(g) was drafted primarily to counter the rules promulgated in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Dimmick v. State, 473 P.2d 616 (Alaska 1970); therefore, Rule 26(g) should be limited in scope to the questions addressed in those cases. Petitioner bases its assertion on the circumstance that these were the specific questions about which the committee expressed concern in its commentary to Rule 26(g). Petitioner also cites to the note following the draft version of the rule, which states:

Subsection (g) is intended to offset the erosion of the Miranda Rule permitted in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 . . . (1971) and the standing problem discussed in Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The holdings of Harris and Dimmick imposed serious restrictions upon the scope of the exclusionary remedy. In Harris, the United States Supreme Court upheld the impeachment of a defendant by his prior statement obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). .The Harris decision established a collateral use exception to the exclusionary rule by authorizing a particular use of illegally obtained evidence for purposes other than direct proof of guilt. Dimmick holds that the exclusionary remedy cannot be utilized by a defendant who was not the immediate victim of a Miranda violation.

The comments make it clear that Rule 26(g) was designed to apply to the Harris and Dimmick situations and can be inferred not to apply to probation or parole revocation proceedings. First, the drafters never professed to have contemplated such proceedings in promulgating the rule. Indeed, the reference to the “. . . actual defendant whose conviction might be reversed” indicates that the drafters contemplated proceedings where a subject could be convicted. Yet one is not “convicted” in a parole or probation revocation proceeding. Second, the concern with deterrence of police misconduct expressed in the committee notes is not, as we demonstrate infra, applicable to the instant case. We now proceed to examine the rationales underlying the exclusionary rule, for the twin purposes of • demonstrating that deterrence of police misconduct does not carry the same force as it would were this a proceeding looking towards adjudication of guilt and that, Alaska’s criminal rules aside, Alaska’s constitution does not require application of exclusionary rules to the instant situation.

In regard to the purpose of the exclusionary rule, federal precedent and our own decisions establish that the rule has twin rationales. One of these rationales is deterrence of unconstitutional methods of law enforcement. The other rationale is the imperative of judicial integrity which requires that the courts not be made “party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.”

An analysis of the deterrence goal of the exclusionary rule and its relation to Alaska’s system of probation is appropriate here. This court must answer the question whether extension of the exclusionary rule to probation revocation hearings would further the goal of deterrence (of unlawful methods of law enforcement) sufficiently to outweigh the need for use of the evidence thus secured to promote the enforcement'of a rational probation system. Theoretically, any time illegally seized evidence is excluded, the deterrent impact of the exclusionary rule as presently administered is incremented. However, invocation of the exclusionary rule in probation revocation proceedings would yield only a minimal additional deterrent effect which is outweighed by the needs of our probation system.

When faced with this question, the Supreme Court of California, in In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, 740, cert. denied, 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970), concluded that

. the incremental deterrent effect that will realistically be achieved by shielding the Adult Authority from illegally procured evidence is slight; the bungling police officer is not likely to be halted by the thought that his unlawful conduct will prevent the termination of parole because the authority cannot consider the evidence that he unlawfully procures. When, as in the instant case, the police are not even aware that a suspect is a parolee, the supplemental deterrent factor is, of course, completely absent.

More recently, the Ninth Circuit answered the question in a similar manner. In United States v. Winsett, 518 F.2d 51, 54 (9th Cir. 1975), Judge Choy wrote:

Application of the exclusionary rule to the probation revocation proceeding in this case would achieve a deterrent effect speculative or marginal at best. Whatever deterrence of police misconduct results from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to probation revocation proceedings would significantly further that goal. See United States v. Hill, 447 F.2d 817, 819 (7th Cir. 1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1164 (2d Cir. 1970). Such an extension would deter only police searches and arrests consciously directed toward probationers, [footnote omitted]

Both the Supreme Court of California and the Ninth Circuit further concluded that any marginal deterrent effects which would flow from application of the exclusionary rule were far outweighed by the potentially disastrous consequences which would follow the imposition of the exclusionary rule in parole or probation proceedings. As articulated by the Ninth Circuit, the primary purpose of probation is

. to promote the rehabilitation of the criminal by allowing him to integrate into society as a constructive individual, without being confined for the term of the sentence imposed. Cf. Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). . Because violation of probation conditions may indicate that the probationer is not ready or is incapable of rehabilitation by integration into society, it is extremely important that all reliable evidence shedding light on the probationer’s conduct be available during probation revocation proceedings. [footnote omitted] [emphasis in original]

518 F.2d at 54-55.

In the case at bar Sears had pled guilty to the crime of accessory after the fact to burglary. As was mentioned previously, as a condition of probation, the sentencing court required that Sears abide by all municipal, state, and federal laws and ordinances. Subsequently, a petition for revocation of Sears’ probation was filed on the ground that Sears had committed the offense of possession of marijuana for the purpose of sale and distribution in violation of the express terms of his probation. Clearly, it would be destructive of the purpose of probation to hold that the sentencing court is forbidden to consider relevant facts concerning Sears’ possession of marijuana in determining whether Sears should be allowed to continue on probationary status. If Sears’ rehabilitation is to be furthered and society protected from antisocial conduct, then it is crucial to rational decision-making that this significant information not be denied the very court which initially imposed probation. Here the needs of the probation system clearly outweigh the possible deterrence of unlawful methods of law enforcement.

Given our conclusion that a probation or parole revocation hearing is not a criminal proceeding, we find the reasoning of the Supreme Court of California and the Ninth Circuit Court of Appeals persuasive and are led to the conclusion that the needs of Alaska’s probation system significantly outweigh any benefits which would flow from our mandating that the exclusionary rule is applicable to probation revocation proceedings.

Further, we do not think that considerations of the imperative of judicial integrity dictate a contrary result. First, we recognize that the illegally seized marijuana is suppressible in any prosecution of Sears for the crimes of possession or possession with the intent to sell. Second, the imperative of judicial integrity was initially met when Sears pled guilty to the charge of accessory after the fact to the crime of burglary. There is no intimation in this record that the guilty plea on Sears’ part was in any manner engendered by a lawless invasion of constitutional rights or by the government’s use of the fruits of such invasion. Third, in the special context of a probation violation proceeding, it is our belief, on the balance, that the facts of this case present no such threat to the imperative of judicial integrity as to outweigh the clear need of the sentencing court to know whether the probationer is conducting his life in a manner which warrants continuation of his present probationary status, or whether because of antisocial conduct the goal of rehabilitation is not being furthered and thus, either a change in the conditions of probation, or incarceration, is necessary in order to protect society.

We can conceive of circumstances which would lead to the application of the exclusionary rule to revocation of probation proceedings. E. g., Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed 183 (1952). In short, police misconduct which shocks the conscience, or is of a na’ ture that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom, would lead us to invoke the exclusionary rule. See, e. g., People v. Dowery, 20 Ill.App.3d 738, 312 N.E.2d 682 (1974), aff’d, 60 Ill.2d 200, 340 N.E.2d 529, 18 Crim.L. Rep. 2268 (1975).

One additional comment is necessary here. In the event the lawless arrest and search or seizure is carried out by enforcement personnel with knowledge or reason to believe the suspect was a probationer, we would then apply the exclusionary rule in the probation revocation proceeding. For, in such a circumstance, the bar of the exclusionary rule would act as a significant deterrent to searches and arrests consciously directed toward probationers. In this regard we are in accord with the Ninth Circuit’s opinion in United States v. Winsett, 518 F.2d 51, 54, n. 5 (9th Cir. 1975), where the court stated:

. when the police at the moment of search know that a suspect is a probationer, they may have a significant incentive to carry out an illegal search even though knowing that evidence would be inadmissible in any criminal proceeding. The police have nothing to risk: If the motion to suppress in the criminal proceedings were denied, defendant would stand convicted of a new crime; and if the motion were granted, the defendant would still find himself behind bars due to revocation of probation. Thus, in such circumstances, extension of the exclusionary rule to the probation revocation proceeding may be necessary to effectuate Fourth Amendment safeguards.

For the foregoing reasons, we reverse the superior court’s determination that the evidence in question should be suppressed and remand the matter for further probation revocation proceedings in conformity with this opinion.

ERWIN, J., concurs.

CONNOR, J., dissents.

BURKE, J., not participating.

. AS 12.15.020.

. AS 17.12.010.

. Those facts are substantially as follows. On the evening of October 16, 1974, Officer Kaas of the Anchorage Police Department was on patrol when he saw several people alight from respondent’s car in an alley behind a bar. One of these people was carrying a beer can. According to Officer Kaas, the car was proceeding slower than the speed limit, which made him suspicious that the driver might be under the influence of intoxicating liquor. He also noted that the car was missing a tail light. He directed the driver of the car to pull over, at which point respondent Sears got out and proceeded toward the patrol car, meeting Officer Kaas halfway. Apparently Sears walked without stumbling or staggering, and his breath did not smell of alcohol. Although . the officer’s preliminary investigation showed that Sears did not have a driver’s license in his possession and that the car was not registered in Sears’ name, no arrest was made at that time. The officer checked by radio and found that Sears’ license had been suspended. At that point Officer Kaas went up to the car, flashed his light inside, and saw a brown bag on top of several unopened cans of beer on the floor in front of the driver’s seat.' He opened the door, inspected the contents of the bag, and found what appeared to be marijuana. After finding the marijuana, the officer searched the rest of the car and found three pipes, believed to be marijuana pipes. Kaas then arrested Sears, charging him with possession of marijuana with intent to sell and distribute. No charges were filed with respect to the tail light violation. The record does not reflect and the state makes no claim that Officer Kaas knew of Sears’ probationary status at that time.

.Since the alleged marijuana offense was the sole ground on which the state was seeking to revoke probation, Judge Burke’s decision to exclude the evidence deprived the state of the proof required to sustain the petition to revoke.

. The Question was presented to us in Himnicutt v. State, 527 P.2d 1292 (Alaska 1974), but the case was remanded for further proceedings without the question having been resolved.

. Exclusionary doctrine has developed primarily through judicial decision. See, e. g., Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) ; Olmstead v. United States, 277 U.S. 438, 471, 48 S.Ct. 564, 72 L.Ed. 944, 953 (1928) (Holmes, J„ separate opinion). It was formulated by the United States Supreme Court and extended to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

. Alaska Rule of Criminal Procedure 26 provides in part:

(a) In General. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by these rules. The admissibility of evidence shall be governed by Civil Rule 43 and by these rules, or in' the absence of rule, by the principles of common law as they may be interpreted by the courts of the state in the light of reason and experience. In the absence of rule, the evidence shall be presented according to the most convenient method prescribed by common law principles, and the principle which favors the reception of the evidence shall govern. The competency and privileges of witnesses shall be governed by Civil Rule 43 and by these rules, or in the absence of rule, by common law principles, [emphasis added]

. The superior court found the broad language of Rule 1 highly persuasive in determining that Rule 26(g) was applicable in probation revocation proceedings.

. See also McGinnis v. Stevens, 543 P.2d 1221, 1226 (Alaska 1975), where concerning prisoners’ rights in prison disciplinary hearings we relied on Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and stated:

we are in agreement with Wolff that a disciplinary hearing is not a criminal trial. The inmate is not charged with a violation of criminal statute, nor is the inmate’s liberty as a free eitizen threatened by potential curtailment. Thus, in accord with Wolff, we hold that an inmate in a major disciplinary proceeding is not entitled to the full panoply of rights due an accused in a criminal proceeding, [footnote omitted]

Compare Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 781-82, 36 L.Ed.2d 656 (1973) ; Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Our holding in Martin adds support to our conclusion, infra, that probation and parole revocation proceedings are not “criminal proceedings” within the meaning of our Rules of Criminal Procedure. Our decision there was made with awareness of Alaska Rule of Criminal Procedure 41(a), which provides in part:

Admission to Bail. The defendant in a criminal proceeding is entitled to be admitted to bail ....

Had we concluded that Martin was a defendant in a criminal proceeding, there would have been no need in that case to reach a constitutional analysis.

.The Report of the Criminal Rules Revision Commission includes a letter addressed to The Honorable George F. Boney and the comfnittee’s notes to the proposed criminal rules. It is available upon request from the State Law Librarian. Also included is the “voted copy” of the proposed rule changes.

. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ; Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669, 1677 (1960) ; J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

. Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889, 901 (1968) ; J. M. A. v. State, 542 P.2d 170 (Alaska 1975).

. In In re Martinez, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, 740, cert. denied, 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970), the Supreme Court of California adopted a parallel position:

On the other hand, the social consequences of imposing the exclusionary rule upon the [Adult Authority] can be disastrous. Conceivably, if the improperly obtained evidence were the sole basis for parole revocation, the authority might find itself unable to act in the ease of the paroled murderer whom the police improperly discovered had cached a minor armory for future use or the paroled narcotics peddler who had collected a quantity of heroin for future sale. Although we recognize, of course, that such evidence would not be admissible in a court of law, we believe that an agency whose delicate duty is to decide when a convicted offender can be safely allowed to return to and remain in society is in a different posture than the court which decides his original guilt. To blind the authority to relevant facts in this special context is to incur a risk of danger to the public which, at least as of this date, outweighs the competing considerations of a problematical gain in deterrence.

. See also United States v. Farmer, 512 F.2d 160 (6th Cir. 1975), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305, 44 U.S.L.W. 3305; United States v. Brown, 488 F.2d 94 (5th Cir. 1973) ; United States v. Hill, 447 F.2d 817 (7th Cir. 1971) ; United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) ; People v. Bowery, 20 Ill.App.3d 738, 312 N.E.2d 682 (1974), aff’d, 62 Ill.2d 200, 340 N.E.2d 529, 18 Crim.L.Rep. 2268 (1975) ; Stone v. Shea, 113 N.H. 174, 304 A.2d 647 (1973) ; Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973) ; Reeves v. Turner, 28 Utah 2d 310, 501 P.2d 1212 (1972) ; State v. Kuhn, 7 Wash.App. 190, 499 P.2d 49 (1972).

. This is precisely the course adopted by the superior court in response to Sears’ motion to suppress the evidence in conjunction with his prosecution for the crime of possession of marijuana for the purpose of sale and distribution.

As indicated previously, it is not contested here that the marijuana was seized illegally, and therefore we are not required to pass on that issue.

. Since we are not confronted with any issue regarding a probationer’s waiver of fourth amendment rights or rights under Article I, section 14 of the Alaska Constitution, we do not consider this an appropriate occasion for a detailed discussion of this problem. We note though, that the extent of probationers’ and parolees’ fourth amendment rights has been recently examined by the Ninth Circuit in Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975) ; and United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975). See also Tamez v. State, 534 S.W.2d 686, 19 Crim.L.Rep. 2026 (Tex.Cr.App., 1976).