State v. Burkholder

• Decision Date: 25 July 1984
• Docket Number: No. 83-1959,83-1959
• Citation: 12 Ohio St.3d 205,12 OBR 269,466 N.E.2d 176
• Parties: , 12 O.B.R. 269 The STATE of Ohio, Appellant, v. BURKHOLDER, Appellee.
• Court: Ohio Supreme Court

Page 205

12 Ohio St.3d 205

466 N.E.2d 176, 12 O.B.R. 269

The STATE of Ohio, Appellant, v. BURKHOLDER, Appellee.

No. 83-1959.

Supreme Court of Ohio.

July 25, 1984.

Syllabus by the Court

Pursuant to Section 14, Article I of the Ohio Constitution, evidence obtained through an unreasonable or unlawful search and seizure is inadmissible in a probation revocation proceeding.

On July 31, 1981, appellee, Michael Burkholder, was placed on five years' probation by the Court of Common Pleas of Montgomery County, after entering a plea of guilty to breaking and entering (R.C. 2911.13). The sentence of not less than two years nor more than five years in the Ohio penal system was suspended.

On September 1, 1982, in the presence of appellee's probation officer, the Centerville police executed a search warrant at appellee's residence and allegedly recovered approximately one hundred eighty-three items of stolen property. As a result of the seizures made pursuant to the warrant, appellee was indicted by the Montgomery County Grand Jury on seven counts of receiving stolen property (R.C. 2913.51). On November 10, 1982, the trial court sustained appellee's motion to suppress all the evidence obtained in the search because the warrant did not recite facts sufficient to establish probable cause. The cause was subsequently "terminated" by the trial court entering a nolle prosequi, and has not been appealed.

On December 22, 1982, a notice of revocation of appellee's probation was filed and a revocation hearing was held on or about December 28, 1982, at which the alleged stolen property recovered from the search of appellee's residence was introduced to show that appellee had violated the terms of his probation. The same trial court which suppressed the evidence at trial, admitted it at the probation revocation hearing. The trial court held that the exclusionary rule did not apply to a convicted felon in probation revocation proceedings, and reinstated the original sentence of imprisonment.

Upon appeal, the court of appeals reversed the judgment of the trial court and remanded the cause for further proceedings. The appellate court opined that so long as the exclusionary rule exists, it must be applied uniformly to all criminal trials and hearings. The court of appeals cited State v. Gallagher (1974), 38 Ohio St.2d 291, 313 N.E.2d 396 , on remand (1976), 46 Ohio St.2d 225, 348 N.E.2d 336 , where this court held that utterances made by an accused to his parole officer are inadmissible at trial where such utterances were made in response to questioning by the parole officer without the accused being advised of his Miranda rights. Despite its distinctions from the instant case, the court of appeals observed that Gallagher provides the key to the question of the extent of constitutional privileges.

The court of appeals, finding its judgment to be in conflict with the Court of Appeals for Summit County in State v. Allen (Dec. 22, 1983), No. C.A. 10814, unreported, and the Court of Appeals for Auglaize County in State v. Bailey (June 29, 1981), No. 2-80-25, unreported, certified the record of the case to this court for review and final determination.

Lee C. Falke, Pros. Atty. and Sharon L. Ovington, Cincinnati, for appellant.

Kurt R. Portmann, Ellis Jacobs and David P. Williamson, Dayton, for appellee.

SWEENEY, Justice.

The critical issue posed by this appeal is one of first impression before this court, and involves important constitutional considerations. We must decide whether evidence obtained in an unreasonable or unlawful search and seizure, while inadmissible in a trial, is nevertheless admissible in a subsequent probation revocation proceeding. Stated differently, we must determine whether the exclusionary rule is applicable in a probation revocation proceeding.

The appellant contends, inter alia, that the exclusionary rule should not apply to probation revocation proceedings, because the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect on unlawful police activities rather than a personal constitutional right of the accused person. The state further submits that Evid. R. 101(C)(3) provides that courts are not bound by the Rules of Evidence in a probation revocation hearing, and that similarly, the exclusionary rule should not be included as one of the minimum requirements a probationer is entitled to in a probation revocation proceeding.

We disagree, and hold that pursuant to Section 14, Article I of the Ohio Constitution, evidence obtained through an unreasonable or unlawful search and seizure is inadmissible in a probation revocation proceeding.

Section 14, Article I of the Ohio Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized."

The constitutional guarantee of this provision applies equally to all persons and is not limited in any manner whatsoever. While the procedural due process requirements in a probation revocation proceeding are not as extensive as those found in a criminal trial, the substantive constitutional right against unreasonable searches and seizures embodied in the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution, must also apply to a probation revocation proceeding.

It has been often stated that the primary purpose of the exclusionary rule is to deter future unlawful police conduct in order to effectuate the Fourth Amendment guarantee against unreasonable searches and seizures. Elkins v. United States (1960), 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669; Mapp v. Ohio (1961), 367 U.S. 643, 656, 81 S.Ct. 1684, 6 L.Ed.2d 1081 ; Tehan v. Shott (1966), 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 ; Terry v. Ohio (1968), 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 ; United States v. Calandra (1974), 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 ; State v. Williams (1983), 6 Ohio St.3d 281, 284, 452 N.E.2d 1323.

In Elkins, supra, 364 U.S. at 217, 80 S.Ct. at 1444, the court stated that the purpose of the exclusionary rule "* * * is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it." We believe that the application of the exclusionary rule to probation revocation proceedings furthers the universally accepted purpose to deter police misconduct by removing the incentive to disregard it.

To say, as does the state, that the purpose of the exclusionary rule was fulfilled when the illegally confiscated evidence was suppressed at trial and that this purpose is not furthered by applying the rule to probation revocation proceedings is in our view myopic. While a probationer stands as a convicted criminal and is deserving of close scrutiny, the mechanisms necessary to keep the probationer in check are already in place without the need to resort to cutting back the constitutional guarantees that the exclusionary rule is designed to protect. As the appellee submits, investigations of probation violations and new criminal charges very often involve the police and probation officers working together. Police officers know the possible results of a probation revocation, and that a revocation can have more serious consequences than new charges. The police have ready access to criminal records, and they know of the high probability that any suspect in a new crime may also be a probationer or parolee.

While we encourage the zealous enforcement of the law by our police officers, we must acknowledge that the potential for abuse is present, and that this potential for abuse must be deterred in order to maintain the constitutional guarantees that underlie the exclusionary rule. As the court of appeals below so aptly noted: "To excuse what admittedly was determined to be an illegal search is to deny the constitutional effect as well as the constitutional purpose of the suppression rule."

Our holding in the case sub judice is consistent with our decision in State v. Gallagher (1976), 46 Ohio St.2d 225, 348 N.E.2d 336 , in that a probationer, like the parolee in Gallagher, must be afforded the right to assert his or her constitutional privileges. Furthermore, our decision here is in accord with the cogent analysis of other courts that have already adopted this interpretation. State v. McMilliam (1956), 243 N.C. 775, 92 S.E.2d 205; Cooper v. State (1968), 118 Ga.App. 57, 162 S.E.2d 753; Amiss v. State (1975), 135 Ga.App. 784, 219 S.E.2d 28; Giles v. State (1979), 149 Ga.App. 263, 254 S.E.2d 154; Adams v. State (1980), 153 Ga.App. 41, 264 S.E.2d 532; Michaud v. State (Okla.Crim.App.1973), 505 P.2d 1399; Rushing v. State (Tex.Crim.App.1973), 500 S.W.2d 667; Moore v. State (Tex.Crim.App.1978), 562 S.W.2d 484; State v. Shirley (1977), 117 Ariz. 105, 570 P.2d 1278; Ray v. State (Fla.App.1980), 387 So.2d 995; see, also, Annotation (1977), 77 A.L.R.3d 636.

As Justice Brandeis noted in his dissenting opinion in Olmstead v. United States (1928), 277 U.S. 438, at 485, 48 S.Ct. 564, at 575, 72 L.Ed. 944:

"* * * In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. * * * "

Based on all the foregoing, we affirm the judgment of the court of appeals in reversing and remanding the judgment of the trial court.

Judgment affirmed.

FRANK D. CELEBREZZE,...