People v. Perry

• Citation: 505 N.W.2d 909,201 Mich.App. 347
• Decision Date: 07 September 1993
• Docket Number: Docket No. 126915
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Juan Dupree PERRY, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 909

505 N.W.2d 909

201 Mich.App. 347

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Juan Dupree PERRY, Defendant-Appellant.

Docket No. 126915.

Court of Appeals of Michigan.

Submitted Jan. 14, 1993, at Detroit.

Decided Sept. 7, 1993, at 9:25 a.m.

Released for Publication Oct. 19, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Don W. Atkins, Principal Atty., for people.

John B. Payne, Jr., Dearborn, for defendant on appeal.

Before RICHARD ALLEN GRIFFIN, P.J., and SHEPHERD and FITZGERALD, JJ.

SHEPHERD, Judge.

Defendant appeals as of right from the trial court's November 21, 1989, order revoking his November 21, 1988, sentence of lifetime probation for possession with intent to deliver less than fifty grams of heroin, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv), and imposing a prison sentence of two to twenty years. We affirm.

Following a bench trial on October 28, 1988, defendant was convicted of the possession of heroin with an intent to deliver and sentenced to lifetime probation, as permitted by M.C.L. § 771.2; M.S.A. § 28.1132. Six months later, on April 19, 1989, a search warrant was executed at defendant'sresidence and he was arrested for the possession of more than fifty grams of cocaine. Shortly thereafter, on April 23, 1989, defendant was charged with probation violation based upon the violation of the criminal laws of this state. Thereafter, on October 20, 1989, the trial court suppressed the evidence of cocaine possession because the search warrant was issued without adequate grounds for finding probable cause. On October 26, 1989, the court dismissed the charge of cocaine possession but refused to dismiss the probation violation warrant without a hearing regarding the facts and circumstances surrounding the warrant.

The probation violation hearing was held on November 9, 1989. On the basis of the testimony of one of the officers who executed the search warrant, the trial court found that defendant violated the condition of probation that he not violate the laws of this state.

On appeal, defendant argues that the trial court's decision to revoke his probation solely upon the evidence obtained pursuant to an illegal search and seizure violated the Fourth Amendment exclusionary rule.

The issue whether the Fourth Amendment exclusionary rule applies to probation revocation proceedings is one of first impression. ¹

Federal decisions are nearly unanimous in concluding that the exclusionary rule does not apply:

The applicability of the exclusionary rule to probation or parole revocation has been considered by eight circuit courts. Seven of those courts have held the rule inapplicable. Only one, the Fourth Circuit, has held to the contrary. Having reviewed the holdings of these courts, we conclude the reasoning applied by the majority of circuits is persuasive, and we aline ourselves with them.

We agree with and underscore the conclusion of the Third Circuit that application of the exclusionary rule to revocation proceedings will not achieve the deterrent effect behind the rule. That observation is particularly true where, as here, the allegedly offensive seizure is conducted by state officers as a prelude to the filing of state charges. Because the deterrence to illegal police conduct, if any, can be accomplished within the framework of the state proceeding, application of the exclusionary rule to a parallel federal revocation proceeding would be redundant. Moreover, as noted by the Third Circuit, application of the exclusionary rule at this stage would not achieve a deterrence as much as it would inhibit the interests of the public in the pursuit of its protection against "convicted criminals who have abused the liberty afforded them." [United States v. Finney, 897 F2d 1047, 1048 (CA 10, 1990); citations omitted.]

Among the federal circuits that have not applied the Fourth Amendment exclusionary rule to revocation proceedings is the Sixth Circuit. United States v. Farmer, 512 F.2d 160 (C.A. 6, 1975), cert. den. 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975).

The Ninth Circuit, however, has recognized an exception to this rule where the police knew or had reason to believe that the suspect was a probationer. United States v. Winsett, 518 F.2d 51 (C.A. 9, 1975). There, the court, citing United States v. Calandra, 414 U.S. 338, 349, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), stated that the exclusionary rule should not be extended unless the potential harm to the probation system substantially outweighs potential benefits. Winsett, supra, p. 54. Accordingly, the Ninth Circuit Court of Appeals concluded that "the Fourth Amendment does not require suppression of evidence in a probation revocation proceeding where, at the time of arrest and search, the police had neither knowledge nor reason to believe that the suspect was a probationer." Id., p. 55.

I would adopt the rule set forth by the Ninth Circuit in Winsett. As this Court has recognized, the purpose of the exclusionary rule is to preserve judicial integrity and deter police misconduct. People v. Jordan, 187 Mich.App. 582, 588, 468 N.W.2d 294 (1991). Where there is no indication that the police knew or had reason to know that they were targeting a probationer, then the exclusionary rule should not apply to probation revocation proceedings in Michigan.

Applying this rule to the present case, I conclude that the trial court did not err in revoking defendant's probation. There is no indication in the record that the police knew or had reason to know that defendant was on probation when they executed a search warrant at his residence on April 19, 1989. Thus, the exclusionary rule did not apply to bar evidence obtained pursuant to the illegal search and seizure.

I am the only member of this panel who holds that the exclusionary rule does not apply if the police had no knowledge or reason to know that defendant was on probation at the time the search warrant was executed. Judge Griffin's concurring opinion applies a balancing test with respect to this issue. Judge Fitzgerald's dissent takes the position that the exclusionary rule applies in probation revocation proceedings to the same extent that it applies in any other criminal proceeding. There is a majority holding for nothing more than the dispositive ruling that probation was properly revoked. The panel urges the Supreme Court to grant leave to appeal to resolve the question regarding when and under what circumstances the exclusionary rule applies in probation revocation proceedings. We are publishing this opinion to point out to the bench and the bar that, as of the date of this opinion, this issue has not been resolved in Michigan.

I also note, contrary to defendant's assertion, that there were verified facts on the record from which the trial court could have found that defendant constructively possessed cocaine in the house, People v. Hill, 433 Mich. 464, 470, 446 N.W.2d 140 (1989), in violation of the probationary condition that he not violate the laws of this state. People v. Buckner, 103 Mich.App. 301, 302 N.W.2d 848 (1980).

Defendant also argues that his sentence violates the principle of proportionality set forth in People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). This claim is meritless.

Although the guidelines do not apply to probation revocation sentencing, People v. Leske, 187 Mich.App. 153, 466 N.W.2d 361 (1991), this Court has held that the guidelines are a useful point of departure in determining where on the continuum the sentence should fall. People v. Peters, 191 Mich.App. 159, 477 N.W.2d 479 (1991). Where the sentence to be imposed is for a major controlled substance offense for which the sentencing court is directed by law to impose a sentence that cannot be more or less than a specified term of years, the court is required to fix the length of both the minimum and maximum sentences within those limits. M.C.L. § 769.9(3); M.S.A. § 28.1081(3).

At the sentencing for the underlying offense, held on November 21, 1988, the trial court stated that the minimum sentence range for defendant was twelve to thirty months. The minimum sentence of two years imposed on November 21, 1989, was within the permissible range for the underlying offense.

Affirmed.

RICHARD ALLEN GRIFFIN, Presiding Judge, concurring.

I concur in the result reached by Judge Shepherd. The judgment of the lower court is therefore affirmed.

I write separately, however, because I cannot agree with much of Judge Shepherd's analysis regarding the applicability of the exclusionary rule to probation revocation proceedings. In my view, the applicability of the exclusionary rule should not hinge solely on the narrow question whether the police had actual knowledge or reason to know that the target of their illegal search and seizure was a probationer. Rather, I would examine the totality of the circumstances surrounding the Fourth Amendment violation and apply the exclusionary rule to the probation revocation proceedings only in those cases where (1) the exclusion of the evidence would substantially further the deterrent purpose of the exclusionary rule, and (2) the need for deterrence outweighs the harm to the probation system.

I

The exclusionary rule is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984). The exclusionary rule has never been invoked to disallow the use of illegally seized evidence in all proceedings or against all persons. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Rather, any extension of the rule beyond its traditional applicability in criminal proceedings is warranted only where the...