Richardson v. State, 0-91-1184

Citation1992 OK CR 76,841 P.2d 603
Decision Date10 November 1992
Docket NumberNo. 0-91-1184,0-91-1184
PartiesGeorge W. RICHARDSON, a/k/a Jody Richardson, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
ACCELERATED DOCKET ORDER

On August 15, 1988, appellant pled guilty in Case No. CRF-88-98 to Unlawful Possession of a Controlled Dangerous Substance, and received a five (5) year suspended sentence. Several years later on February 3, 1991, a search warrant was executed at appellant's residence and contraband was discovered. Appellant was then charged with Unlawful Possession of a Controlled Dangerous Substance With Intent to Distribute, and Unlawful Possession of Paraphernalia, in Case No. CRF-91-23. On the basis of these charges, appellee filed on February 11, 1991, an Application to Revoke [appellant's] Suspended Sentence in Case No. CRF-88-98. Then, on April 25, 1991, appellee filed a Motion to Dismiss Case No. CRF-91-23, on the basis that the search warrant which led to the discovery of the incriminating evidence in that case was invalid.

Appellant filed a Motion to Suppress on April 29, 1991. He argued that the contraband obtained pursuant to the invalid search warrant could not be introduced against him at the hearing on appellee's Amended Application to Revoke Suspended Sentence in Case No. CRF-88-98. At the June 20, 1991, hearing, the trial court overruled appellant's Motion to Suppress, and granted appellee's Amended Application to Revoke Suspended Sentence. The trial court found that the search warrant was in fact invalid. However, it concluded that the fruits of that warrant were admissible in the revocation proceeding, because the officers' entry was made upon the good faith belief that the warrant was valid. From this judgment and sentence, appellant perfected his appeal to this Court.

Pursuant to the Rules of the Oklahoma Court of Criminal Appeals, Rule 11.2(a)(2), 22 O.S.Supp.1990, Ch. 18, App., this appeal was automatically assigned to the Accelerated Docket of this Court. The sole proposition of error presented was whether evidence police seized pursuant to an invalid warrant and in violation of appellant's Fourth Amendment rights, was admissible in his revocation proceeding to prove that he violated a condition of his probation. Following oral argument presented on October 15, 1992, this Court ruled, in a three (3) to two (2) vote, that, absent egregious police misconduct, evidence illegally seized from a probationer is not barred by the exclusionary rule from revocation proceedings.

This Court acknowledges that this holding represents a departure from our previous decisions in Chambers v. State, 649 P.2d 795, 797 (Okl.Cr.1982), and Michaud v. State, 505 P.2d 1399, 1402-03 (Okl.Cr.1973). In those cases, we held that the exclusionary rule does apply to bar evidence--seized in violation of the Fourth Amendment--from revocation proceedings. We recognized in Michaud that a revocation proceeding is not a criminal trial and is not, therefore, governed by the full scope of trial rules and procedure. Id. at 1402. See also Gilbert v. State, 765 P.2d 807, 809 (Okl.Cr.1988). However, we reasoned that because 22 O.S.1971, § 991b required that revocation of a suspended sentence be supported by competent 1 evidence, and evidence obtained in violation of the Fourth Amendment had been held incompetent, such unlawfully obtained evidence could not be presented in a revocation hearing. Michaud, supra, at 1402.

Michaud was decided in the aftermath of Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961), in which the Supreme Court held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." Since Mapp, however, the Supreme Court has made clear that the Fourth Amendment "has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons." United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677 (1984), quoting Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976). For example, "[e]vidence obtained in violation of the Fourth Amendment and inadmissible in the prosecution's case in chief may be used to impeach a defendant's direct testimony." Id. 468 U.S. at 910, 104 S.Ct. at 3414, citing Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), as well as several other cases. See also Bowman v. State, 585 P.2d 1373, 1379 (Okl.Cr.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1243, 59 L.Ed.2d 471 (1979). 2

This Court adopted the exclusionary rule several decades before it was held by the United States Supreme Court to be enforceable against the states. See Gore v. State, 24 Okl.Cr. 394, 218 P. 545, 547, 550 (1923). In Simmons v. State, 277 P.2d 196, 198 (Okl.Cr.1954), we further held that the exclusion of evidence acquired through an unconstitutional search or seizure was not merely a rule of procedure, but a fundamental right under art. II, § 30 of the Oklahoma Constitution. 3 We will continue, when deemed appropriate, to interpret our state constitution as providing more expansive individual liberties than those conferred by the United States Constitution.

Regarding the admissibility in a revocation hearing of unlawfully seized evidence, however, we are today persuaded that art. II, § 30 of the Oklahoma Constitution should not be interpreted to require the exclusion, from revocation proceedings, of evidence seized in violation of the Fourth Amendment. The deterrence of police misconduct--which is the potential benefit gained by application of the exclusionary rule to probation proceedings--is outweighed by the harm, to the probation revocation system's "fact-finding" process, that might be caused by prohibiting the admission of relevant evidence. Ex Parte Caffie, 516 So.2d 831, 834 (Ala.1987). See also United States v. Winsett, 518 F.2d 51, 53 (9th Cir.1975). In so holding, this Court aligns itself with a host of other courts, state and federal, which have concluded that the exclusionary rule should not apply to revocation proceedings. See United States v. Montez, 952 F.2d 854, 857-59 (5th Cir.1992); United States v. Finney, 897 F.2d 1047, 1048 (10th Cir.1990), and cases cited therein; Chase v. State, 309 Md. 224, 522 A.2d 1348 (1987); Ex Parte Caffie, supra; State v. Caron, 334 A.2d 495 (Me.1975); State v. Thorsness, 165 Mont. 321, 528 P.2d 692 (1974); and, State v. Kuhn, 7 Wash.App. 190, 499 P.2d 49 (1972). Accordingly, we overrule both Michaud and Chambers, supra, Adams v. State, 719 P.2d 843 (Okl.Cr.1986), and any other case from this Court 4 which has reached a contrary conclusion.

Our holding that the exclusionary rule does not apply to revocation proceedings is not, however, absolute. We agree with the Supreme Court of Alabama in Ex Parte Caffie, supra, that "where illegal acts of the police were directed specifically at a probationer or where they shock the conscience, the deterrent effect that exclusion of such evidence would have outweighs the need of the sentencing court for full and [sic] reliable information." Id., 516 So.2d at 836. Therefore, in certain circumstances, the conduct of the police may be so egregious as to call for the application of the exclusionary rule to revocation proceedings.

The testimony in the instant case revealed no such police misconduct. In fact, the trial court made a specific finding that the police who searched appellant's residence did so in good faith, and upon the belief that the warrant was valid. Accordingly, this case does not present the egregious police misconduct that would require application of the exclusionary rule to this revocation proceeding.

IT IS THEREFORE THE ORDER OF THIS COURT, that the decision of the district court overruling appellant's Motion to Suppress be AFFIRMED.

IT IS SO ORDERED.

/s/ James F. Lane

JAMES F. LANE,

Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN

Vice Presiding Judge

specially concurring

/s/ Tom Brett

TOM BRETT,

Judge

dissenting

/s/ Ed Parks

ED PARKS,

Judge

dissenting

/s/ Charles A. Johnson

CHARLES A. JOHNSON,

Judge.

LUMPKIN, Vice-Presiding Judge: specially concurring.

I join in the Court's well reasoned and articulated decision in this case. It not only follows the precedent regarding interpretation of the Oklahoma Constitution, article II, section 30, established in Degraff v. State, 2 Okl.Cr. 519, 103 P. 538 (1909), and followed in Long v. State, 706 P.2d 915 (Okl.Cr.1985), but it also applies the federal interpretation of the United States Constitution as set forth in U.S. v. Finney, 897 F.2d 1047 (10th Cir.1990). See also Langham v. State, 787 P.2d 1279 (Okl.Cr.1990).

The dissent in this case seems to want to reinterpret the United States Constitution for the federal courts and disregard our prior decisions in DeGraff, Long, and Langham. This position is not supported by the scope of our judicial authority or prior caselaw. As footnote 2 of the Order sets out, our prior decisions dictate the result reached by the Court in this matter. In addition, footnote 4 correctly recognizes that Turner v. City of Lawton, 733 P.2d 375 (Okl.1986), concerns only an application in a civil administrative personnel hearing. Further, the Court in Turner did not recognize the prior precedent in DeGraff or seek to modify that decision. Therefore, while the dissent might like to interpret both constitutions in a different manner, the position is not supported by federal or state jurisprudence.

PARKS, Judge, with whom BRETT, Judge, joins, dissenting:

The fifty-four (54) words which comprise the Fourth Amendment to the United States Constitution were intended to secure to the American people the right to be free

from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and...

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    ...proceedings when officers conducting search did not know and had no reason to believe suspect was probationer), and Richardson v. State, 841 P.2d 603, 605-06 (Okla. Crim. App. 1992) (rule does not apply to revocation hearings, but may be applied in cases of particularly egregious misconduct......
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