Dulin v. State

• Decision Date: 20 May 1976
• Docket Number: No. 1--775A131,1--775A131
• Parties: David W. DULIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 746

346 N.E.2d 746

169 Ind.App. 211

David W. DULIN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1--775A131.

Court of Appeals of Indiana, First District.

May 20, 1976.

Rehearing Denied July 9, 1976.

John S. Capper IV, Crawfordsville, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., for appellee.

LOWDERMILK, Judge.

Appellant (Dulin) brings this appeal from the revocation of his probation and the order of the trial court that he serve the balance of a sentence previously imposed. Dulin presents two issues for our consideration:

I) Whether the trial court should conduct a preliminary hearing to test the validity of a search warrant before the fruits of the search are admitted into evidence at a probation revocation hearing.

II) Whether probation can be revoked upon evidence of the commission of a crime although there has been no prior adjudication of guilt based on such evidence.

FACTS:

In January, 1975, Dulin was charged with possession of marijuana and a smoking apparatus. The next month, Dulin pleaded guilty to possession of less than twenty-five (25) grams of marijuana, and the second charge was dismissed.

At sentencing, the trial judge suspended execution of a one (1) year term and placed Dulin on probation for a like period. Dulin's probation was subject to numerous conditions, only two of which are pertinent to this appeal, to-wit:

'4. Defendant is not to use marijuana, hashish or any substance which may be defined as a controlled substance or a dangerous drug under the law during the time of this probation except upon the prescription of a qualified physician.

'9. Defendant is to conduct himself in such a manner that no one has any occasion to question whether or not he has violated the law. That means that if anyone has sufficient grounds to think that he should be arrested or charged, that may be a violation of the terms and conditions of probation, and so much as a traffic ticket could be enough to revoke the probation. This goes not so much to the act, but to the mental attitude of respect for the law and ability to abide by the law.'

The day after Dulin was placed on probation Officer Swenke of the Crawfordsville Police received a telephone message from an informer who stated that Dulin had marijuana in his automobile. At the probation revocation hearing Swenke stated that the informer gave his name, and that his voice was familiar. Swenke immediately informed the prosecutor of this information, and they eventually presented a city court judge with an affidavit and request for a search warrant.

After receiving the search warrant Swenke proceeded to Dulin's place of employment and conducted a search of Dulin's automobile. The search revealed a plastic bag containing plant-like material which was eventually identified as marijuana. Dulin was arrested and charged with possession of a controlled substance. However, Dulin was never brought to trial, and the charges were dismissed.

As a result of the above search and seizure, ¹ a petition to revoke Dulin's probation was filed, and a hearing date was set. At the hearing, Dulin objected to the evidence seized under the search warrant, and requested a preliminary hearing to test the validity of the warrant. This request was denied. However, during the hearing Swenke was examined at length concerning the information contained in the affidavit. The trial court concluded that Dulin had violated condition number nine (9) as set out at the sentencing proceeding, that probation should be revoked, and that Dulin be committed for the remainder of his one (1) year sentence.

I.

Dulin first contends that the trial court erred in not conducting a preliminary hearing to test the legality of the search warrant which was used to seize the marijuana from his car. Dulin argues, citing Ewing v. State (1974), Ind.App., 310 N.E.2d 571, that evidence which is not admissible at a criminal trial is not admissible at a probation revocation hearing. Thus, Dulin concludes that, as in criminal trials, a separate preliminary hearing on the search warrant was required, and that such a hearing would have revealed the warrant was defective for lack of specificity with regard to the knowledge, credibility and reliability of the informant relied upon by Officer Swenke and the judge of the city court.

The question posed by Dulin's argument is one of first impression for this court. Earlier opinions by this and our Supreme Court have clarified certain aspects of the probation revocation process, see, Russell v. Douthitt (1973), Ind., 304 N.E.2d 793; State ex rel. Gash v. Morgan County Superior Court (1972), Ind., 283 N.E.2d 349; Ewing v. State (1974), Ind.App., 310 N.E.2d 571, but none have dealt with the applicability of search and seizure principles to this narrow area of criminal procedure. We are not, however, without direction in our search inasmuch as the United States Supreme Court, the several lower federal courts, and other state courts have considered the problem now before us. In addition, our statutes lend some assistance.

The fountainhead of modern probation/parole revocation procedure is the opinion of the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.E.2d 484 (1972). This case was followed by Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), which expressly equated parole and probation revocation by stating 'Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty.' (Footnotes omitted.)

411 U.S. at 782, 93 S.Ct. at 1759.

Thus, while Gagnon is obviously applicable, much of what was said in Morrissey is also pertinent.

In discussing the proper procedure for revoking parole, the Morrissey court addressed the problem as follows:

'We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.'

408 U.S. at 480, 92 S.Ct. at 2600.

The conditional nature of a probationer's/parolee's liberty is emphasized by the language of our statutes:

'The several circuit and criminal courts and the city and municipal courts in the cities of the first and second class of this state, shall have power, in any case where any person shall have been convicted of a felony or misdemeanor, or shall have entered his plea of guilty to a charge of felony or misdemeanor, upon the entry of judgment of conviction of such person, to suspend such sentence and parole such person, by an order of such court, duly entered of record as a part of the judgment of the court in such case, . . . whenever such court, in the exercise of its judgment and discretion, shall find and determine that such person has committed the offense for which he or she has been convicted under such circumstances as that, in the judgment of such court, such person should not suffer the penalty imposed by the law for such offense if he or she shall thereafter behave well, or whenever such court shall find and determine that by reason of the character of such person, or the facts and circumstances of such case, the interest of society does not demand or require that such person shall suffer the penalty imposed by law if he or she shall thereafter behave well.' (Our emphasis.)

IC 1971, 35--7--1--1 (Burns Code Ed.)

'The court placing a defendant on probation shall impose such conditions as it may deem best. The court may subsequently revoke or modify any condition of probation or may change the period of probation. While on probation the defendant may be required to pay in one (1) or several sums, a fine or costs imposed at the time of being placed on probation, or may be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, or may be required to provide for the support of any person or persons for whose support he is legally responsible.' (Our emphasis.)

IC 1971, 35--7--2--1 (Burns Code Ed.)

Of course, all of the above does not mean that probationers are completely deprived of constitutional rights or, because of their status, automatically subject to unreasonable or oppressive conditions. As was stated in note 4, at page 782 of 411 U.S. at page 1760 of 93 S.Ct. of Gagnon 'It is clear at least after Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that a probationer can no longer be denied due process, in reliance on the dictum in Escoe v. Zerbst, 295 U.S. 490, 492, 55 S.Ct. 818, 79 L.Ed. 1566 (1935), that probation is an 'act of grace."

At this point, however, we are not concerned with the nature of the conditions imposed upon Dulin. Rather, we must consider the evidence introduced at the revocation hearing which the trial court found sufficient to indicate that Dulin had in fact violated a particular condition.

It should be noted that Dulin did not expressly waive any constitutional rights as a condition of probation, and we do not here decide the propriety of such a condition. See generally, People v. Mason (1971), 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630; ...