State v. Kuhn, 621--II
| Decision Date | 26 June 1972 |
| Docket Number | No. 621--II,621--II |
| Citation | 499 P.2d 49,7 Wn.App. 190 |
| Parties | The STATE of Washington, Respondent, v. Charles KUHN, Appellant. |
| Court | Washington Court of Appeals |
Ralph I. Thomas of Stewart & Thomas, Inc., P.S., Montesano appointed, for appellant.
L. Edward Brown, Pros. Atty., Curtis M. Janhunen, Deputy Pros. Atty., Aberdeen, for respondent.
The defendant, Charles Kuhn, appeals from a judgment and sentence following revocation of probation under a deferred sentence.
The first impression issue on appeal is whether the exclusionary rules of the fourth amendment to the United States Constitution are applicable to a probation revocation hearing; specifically, whether the trial court erred in revoking defendant's deferred sentence by allowing into evidence various stolen items discovered in a warrantless search of defendant's apartment. We hold that the exclusionary rules are not applicable to a revocation of probation hearing.
The record shows that on April 30, 1971 defendant Kuhn pleaded guilty to the crimes of second degree burglary and grand larceny. The judgment and sentence entered on his plea deferred the imposition of sentence for three years and granted him probation.
A petition to revoke the deferred sentence was subsequently filed on the basis of allegations that defendant had violated the terms of his probation by having been found guilty of a disorderly conduct charge, and on two occasions--July 6 and September 4, 1971--of having been found in possession of stolen property. A revocation of probation hearing was held on October 4, 1971. Regarding the July 6 charge, the investigating officer, Nels Sundstrom, testified that he gained entry to defendant's apartment with the aid of defendant's landlord. While searching the apartment the officer discovered miscellaneous food items and a radio allegedly taken from another tenant.
Officer James Schmid, of the Aberdeen Police Department, testified regarding a subsequent tour of defendant's apartment on September 4, 1971. As to this investigation, the record shows that defendant's sister was asked by defendant to remove his possessions from his apartment because he was behind in his rent. Defendant had given the key to his apartment to his sister and written permission to Officer Schmid to accompany her. On two occasions that day, other items of stolen property were found in defendant's apartment. Numerous witnesses testified to ownership of the items of property in question.
When the stolen radio obtained in the July 6 search of defendant's apartment was offered as evidence, defendant made no objection to the item being admitted. He contended that it was his own radio. He did object to the admission of numerous other items of stolen property.
We have set forth in the margin the trial court's oral opinion because we believe it clearly demonstrates the reasons for granting and revoking probation. 1
Defendant contends that revocation of his probation upon the basis of illegally seized evidence on July 6 violated his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments. In essence, he asks the court to extend the Fourth Amendment exclusionary rule to a probation revocation hearing. We decline this extension of the exclusionary rule.
Although Washington courts have yet to consider the propriety of extending the Fourth Amendment exclusionary rule to probation revocation proceedings, it is clear from our own decisions that the granting and the revocation of probationary status is a determination that rests almost exclusively with the trial judge. While it is true that the fundamental elements of fair play must be taken into account at a revocation of probation hearing, nonetheless, whether probation is granted or revoked rests in the sound discretion of the trial court. State v. Riddell, 75 Wash.2d 85, 449 P.2d 97 (1968).
The constitutional due process rights of a probationer at a revocation of probation hearing are not the same as those of one accused of a crime in the initial trial of his case. Because of his conviction and the order of the court under which he is at liberty, the probationer's rights are something less than he was entitled to receive before his conviction. Due process requires that he be represented by competent counsel; have adequate notice of the hearing and of the claimed violations of probation; an opportunity to cross-examine the state witnesses; and an opportunity to testify and to answer, rebut or explain away the claimed violations. When the probationer materially denies a significant matter, which is presented through hearsay and is otherwise unsupported, due process requires that the probationer be accorded the right to confront his accuser. State v. Riddell, Supra.
Clearly, probationers are entitled to all of the basic constitutional rights, including protection from illegal searches and seizures, where the probationer is an accused in a criminal prosecution. United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970); United States v. Hallman, 365 F.2d 289, 291 (3d Cir. 1966); Cf. Martin v. United States,183 F.2d 436, 439 (4th Cir. 1950). However, the constitutional rights of an accused in a criminal prosecution and the rights of an offender in proceedings on revocation of conditional liberty under probation are not coextensive. United States ex rel. Lombardino v. Heyd, Supra; see State v. Riddell, Supra.
Although few cases have considered the subject, it has been held that the Fourth Amendment prohibition against the admission of illegally seized evidence is not applicable to a revocation of probation hearing. United States ex rel. Lombardino v. Heyd, Supra; People v. Hayko, 7 Cal.App.3d 604, 86 Cal.Rptr. 726 (1970). We believe that this rule is completely consistent with the rationale of probation hearings expressed in State v. Shannon, 60 Wash.2d 883, 376 P.2d 646 (1962), State v. Riddell, Supra, and other cases from our jurisdiction.
Not only do we believe that the rule of this case is consistent with prior cases from this jurisdiction, but we are convinced that it is based...
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