State v. Shirley
| Decision Date | 22 August 1977 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 117 Ariz. 105,570 P.2d 1278 |
| Parties | The STATE of Arizona, Appellant, v. Michael Steven SHIRLEY, Appellee. 1112. |
| Court | Arizona Court of Appeals |
This appeal raises the question of whether the exclusionary rule, invoked to suppress evidence of an illegal search, should be applied to a probation revocation hearing when the police officers who conducted the search were aware of the defendant's status as a probationer. We agree with the trial court that it should in this instance.
On April 28, 1975, appellee Michael Shirley pled guilty to the crime of second degree burglary. Imposition of sentence was suspended and appellee was placed on probation.
In the early morning hours of May 3, 1976, officers from the Federal Drug Enforcement Administration task force, Arizona Department of Public Safety, Pinal County Sheriff's Department and Casa Grande Police Department executed a nighttime search warrant and seized a quantity of marijuana, prescription-only drugs and a revolver. The officers were aware when they obtained the warrant that Shirley was on probation.
On May 18, the Pinal County Grand Jury returned an indictment against Shirley on charges of possession of marijuana for sale, possession of prescription-only drugs and possession of a pistol by a criminal. The charges were dropped later because the search warrant was found to be defective.
On May 20, a petition to revoke Shirley's probation was filed in Pinal County Superior Court. Shirley filed a motion to suppress, alleging that the search warrant and affidavit were defective and that all the evidence therefore was illegally obtained. Following a hearing, the court suppressed the evidence and denied the petition to revoke. Its written order stated:
" * * * The basis for the Court's ruling is that this evidence was obtained in violation of defendant-probationer's constitutional rights under the 4th Amendment of the U. S. Constitution: i. e., that the evidence was seized illegally in that the search warrant was defective."
The state contends that a probationer does not enjoy the same constitutional protections as other citizens. Relying on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), it argues that revocation proceedings are not part of the criminal prosecution and thus "the full panoply of rights due a defendant in such a proceeding" does not apply.
Morrissey v. Brewer, supra, however, does not stand for the proposition that a probationer is without any constitutional protection. On the contrary, the majority in Morrissey, which involved parole revocation, points to the liberty which the parolee is enjoying and concludes that due process must be applied before that liberty may be revoked. Morrissey holds that ". . . due process is flexible and calls for such procedural protections as the particular situation demands." 408 U.S. at 481, 92 S.Ct. at 2600. Thus the only question under Morrissey is what procedural safeguards are demanded in this situation.
The state urges that application of the exclusionary rule to probation revocation would not serve the rule's primary purpose of deterring police officers from conducting illegal searches. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); State v. Price, 27 Ariz.App. 673, 558 P.2d 701 (1976). Because we are concerned here with probation revocation and not with conviction, the state concludes that the rationale of deterrence does not apply. While there may be valid reasons for this distinction, they depend on the degree of incentive provided by the use of the illegally seized evidence for unconstitutional searches and seizures.
The state relies on three cases in which courts have refused to apply the exclusionary rule to revocation hearings: In re Martinez, Sup., 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 (1970); United States v. Winsett, 518 F.2d 51 (9th Cir. 1975); United States v. Vandemark, 522 F.2d 1019 (9th Cir. 1975). In each of those cases, however, the officers conducting the search had no knowledge of the suspect's status as a probationer, and the state concedes there is an exception to the rule when the probationer's status is known because of the added incentive to conduct an illegal search.
In another case, Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1970), the court applied the exclusionary rule to a sentencing proceeding. It refused to sanction use of illegally obtained evidence because it...
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