McGhee v. State, CA

• Decision Date: 06 July 1988
• Docket Number: No. CA,CA
• Citation: 25 Ark.App. 132,752 S.W.2d 303
• Parties: Joseph McGHEE, Appellant, v. STATE of Arkansas, Appellee. CR 87-232.
• Court: Arkansas Court of Appeals

Page 303

752 S.W.2d 303

25 Ark.App. 132

Joseph McGHEE, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 87-232.

Court of Appeals of Arkansas Division I.

July 6, 1988.

James M. Pratt, Jr., Camden, for appellant.

C. Kent Jolliff, Asst. Atty. Gen., Little Rock, for appellee.

JENNINGS, Judge.

Appellant, Joseph McGhee, pled guilty, in August of 1986, to theft by receiving and was placed on five years probation. Two of the conditions of his probation were that he was not to commit any further crime and not to possess firearms.

On September 30, 1987, the Ouachita County Sheriff's Department obtained a search warrant from a municipal judge based on information it had received that appellant was in possession of stolen VCR's, T.V.'s, video cameras and video tapes. The subsequent search of appellant's home turned up no stolen property, but the officers did find a small quantity of cocaine and two firearms, one of which was a sawed-off shotgun. Appellant was arrested and charged with possession of cocaine and being a felon in possession of a firearm. The State also filed a petition to revoke his probation.

A pre-trial suppression hearing was held. The circuit judge ruled that the warrant was invalid and that the evidence obtained as a result of the search was inadmissible in the primary criminal proceedings against the appellant. The court also ruled, however, that the evidence would be admissible in the revocation proceeding. After a hearing on the petition to revoke, appellant's probation was revoked and he was sentenced to six years imprisonment. His sole argument on appeal is that the court erred in refusing to exclude the evidence obtained in the search in the revocation proceeding. We disagree and affirm.

The trial court was obliged to exclude the evidence obtained as a result of the unlawful search in the substantive criminal proceedings against appellant under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). While it is true that probationers have certain rights under the due process clause of the fourteenth amendment, it is equally clear that those rights are not nearly so extensive as those guaranteed to a defendant in a substantive criminal proceeding. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

The courts of this state have uniformly refused to extend the exclusionary rule to probation revocation proceedings. Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1983); Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980); Carson v. State, 21 Ark.App. 249, 731 S.W.2d 237 (1987); Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (App.1980). As the supreme court said in Schneider this is the view of the great majority of jurisdictions.

The United States Court of Appeals for the Third Circuit considered the issue in United States v. Bazzano, 712 F.2d 826 (3rd Cir.1983). The court noted that of the seven federal courts of appeal that had considered the question whether the exclusionary rule is applicable to probation revocation proceedings, all but the Fourth Circuit had concluded that it is not. The court explained its reason for adopting the majority rule:

In our view, excluding from such proceedings reliable evidence bearing on a probationer's rehabilitation would contribute little to deterring constitutional violations while impeding society's interest in protecting itself against convicted criminals who have abused the liberty afforded them.

The Arkansas Supreme Court has reasoned similarly. "It has been observed that in such a situation the exclusion of illegally obtained evidence from a prosecution of the new offense should ordinarily be a sufficient deterrent to unlawful police activity." Dabney v. State, 278 Ark. at 377, 646 S.W.2d at 5.

It is true that the Arkansas Supreme Court, as well as this court, has suggested, by way of dicta, that there may be exceptions to the general rule that the exclusionary rule is inapplicable in probation revocation proceedings. In Harris, we said that the exclusionary rule would be inapplicable in revocation proceedings "at least where there has been a good-faith effort to comply with the law." 270...