State v. Davis

• Decision Date: 05 March 1979
• Docket Number: No. 62710,62710
• Citation: 375 So.2d 69
• Parties: STATE of Louisiana v. Alton DAVIS.
• Court: Louisiana Supreme Court

Page 69

375 So.2d 69

STATE of Louisiana v. Alton DAVIS.

No. 62710.

Supreme Court of Louisiana.

March 5, 1979.

Dissenting Opinion March 6, 1979.

Concurring Opinion Oct. 10, 1979.

Davis, Thomas & Douglas, Harold Douglas, New Orleans, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Julie C. LeBlanc, Asst. Dist. Atty., New Orleans, for plaintiff-respondent.

HALL, Justice Ad Hoc.

The primary issue presented in this case is whether the rule requiring the exclusion in criminal trials of evidence obtained as the result of an unreasonable search and seizure in violation of the Fourth Amendment ¹ should be extended and applied in a probation revocation hearing. Also presented are issues relating to the adequacy of the probation revocation hearing held in this case.

Alton Davis was charged in separate bills of information with two counts of receiving stolen things in violation of La.R.S. 14:69. After trial by jury, defendant was found guilty as charged. The district attorney thereafter filed an information accusing defendant of previous felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). On November 12, 1976 the trial judge found defendant to be an habitual offender and sentenced him to serve 20 years at hard labor as to each count; the sentences to run consecutively. The court suspended execution of the sentence and placed defendant on active probation for five years subject to certain terms and conditions imposed by the trial judge. ²

Several months later defendant was arrested and charged with possession with intent to distribute heroin in violation of La.R.S. 40:966. After his motion to suppress evidence was overruled, defendant was tried by a judge and was found guilty as charged. Defendant was adjudged a multiple offender and, on September 9, 1977, sentenced to serve twenty years at hard labor without benefit of parole, probation, or suspension of sentence. At this sentencing hearing, the state filed a rule to show cause why probation should not be revoked as to defendant's previous convictions and sentences for receiving stolen things. The trial judge, finding that defendant had been convicted of possession with intent to distribute heroin, ordered his probation revoked and ordered defendant to serve the previously suspended sentence: 20 years at hard labor as to each count of receiving stolen property. ³

Thereafter, in State v. Davis, 359 So.2d 986 (La.1978), this court reversed defendant's conviction for possession with intent to distribute heroin, holding the evidence used against him at trial (fifty tin foil packets of heroin) was the product of an illegal search and seizure and, therefore, inadmissible. ⁴ Upon remand, the state dismissed the charges against defendant. The state, however, filed a second rule to show cause why defendant's probation should not be revoked, contending that defendant had violated the terms and conditions of his probation in that, this court's reversal of his conviction notwithstanding, the underlying facts of that occurrence indicated that defendant did have heroin in his possession. On July 19, 1978, after an abbreviated hearing, the trial judge vacated the original revocation of probation grounded upon defendant's conviction, but ordered that the probation be revoked because the facts underlying the second prosecution showed that defendant was in possession of heroin. ⁵ The sentences of November 12, 1976 were ordered made executory, with credit for time served from July 27, 1977 to July 19, 1978. Defendant's application to this court under our supervisory jurisdiction was granted. ⁶

Defendant contends the trial court erred in revoking his probation on the basis of illegally seized evidence. He argues that since illegally obtained evidence must be excluded from criminal proceedings, it would be a denial of his constitutional rights to allow this same evidence to be used in a probation revocation hearing which may also result in loss of liberty for a substantial period of time.

The Nature of Probation and the Revocation Hearing

When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation. La.C.Cr.P. art. 895. The court may, at any time during the probation period, modify, change, or discharge the conditions of probation, or add further conditions authorized by article 895. La.C.Cr.P. art. 896. At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of a violation or threatened violation. La.C.Cr.P. art. 899 A. If a probation officer has reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or to the probationer, the probation officer may arrest the defendant without a warrant, or may authorize a peace officer to do so. La.C.Cr.P. art. 899 B. After an arrest or service of a summons pursuant to article 899, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing. La.C.Cr.P. art. 900. The hearing may be informal or summary. Id. If the court decides that the defendant has violated, or was about to violate, a condition of his probation it may: (1) Reprimand and warn the defendant; (2) Order that supervision be intensified; (3) Add additional conditions to the probation; (4) Order that the probation be revoked. Id.

At the revocation hearing, a violation of the conditions of probation may be shown by establishing a criminal conviction or by actual proof of the commission of a crime, apart from conviction. State v. O'Conner, 312 So.2d 645 (La.1975); See also State v. Harris, 312 So.2d 643 (La.1975). In the first instance, the hearing judge looks to the record of a criminal prosecution, but in the latter he looks to the Actual conduct of the defendant that violates the conditions of his probation. State v. O'Conner, supra.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court adapted the minimum requirements of due process that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), held applicable to parole revocation hearings, and applied them to probation revocation hearings. As established by the Court, these minimum requirements of due process are:

"(a) Written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole." 411 U.S. 786, 93 S.Ct. at 1761.

Morrissey and Gagnon both recognized that the revocation decision has two analytically distinct components: the wholly retrospective factual question of whether the probationer has in fact acted in violation of one or more conditions of his parole, and if so, should the probationer be committed to prison or should other steps be taken to protect society and improve chances of rehabilitation. The court in Gagnon further noted the critical differences between criminal trials and probation revocation hearings, among them that formal procedures and rules of evidence are not employed. The court specifically held that: "Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty." 411 U.S. 782, 93 S.Ct. at 1159.

The Exclusionary Rule and Its Application to Probation

Revocation Hearings

The great majority of state and federal courts which have considered the issue have held that the exclusionary rule is not generally applicable in probation revocation hearings and that evidence derived from an unreasonable search and seizure is admissible in such hearings. ⁷

The Fourth Amendment does not prescribe a remedy for its violation. Thus, the exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a federal or state criminal trial against the victim of the illegal search or seizure. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

The primary purpose of the exclusionary rule is to deter unlawful police conduct. ⁸ The 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. It is designed not to redress the injury to the privacy of the search victim but to deter unconstitutional methods of law enforcement. United States v. Calandra, supra, footnote 8. As stated by the Supreme Court in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960):

"The rule is calculated to prevent, not to repair. Its purpose is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it."

It is thus apparent that the rule is not to be imposed in a vacuum or administered...