State v. Turner

• Decision Date: 28 February 1995
• Docket Number: No. 69869,69869
• Citation: 891 P.2d 317,257 Kan. 19
• Parties: STATE of Kansas, Appellee, v. Curtis L. TURNER, Appellant.
• Court: Kansas Supreme Court

Page 317

891 P.2d 317

257 Kan. 19

STATE of Kansas, Appellee, v. Curtis L. TURNER, Appellant.

No. 69869.

Supreme Court of Kansas.

Feb. 28, 1995.

Syllabus by the Court

Generally, evidence illegally seized from a probationer is not barred from a probation revocation proceeding by the exclusionary rule. The bare fact that the officer or officers acting unlawfully knew of the defendant's probationary status is insufficient to create an exception thereto. However, an exception may be warranted if the court finds, under the totality of the circumstances, that the police misconduct is so egregious that its deterrence outweighs the court's need for information.

Daniel E. Monnat, of Monnat & Spurrier, Chartered, Wichita, argued the cause and was on the briefs, for appellant.

David Lowden, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

McFARLAND, Justice:

Curtis L. Turner appeals from the revocation of his probation and the reinstatement of his original sentence in three separate cases. The sole issue is the applicability of the exclusionary rule to probation revocation proceedings. The district court held the rule to be inapplicable to probation revocation proceedings. The Court of Appeals held the rule should be applied where, as here, the involved police officers knew the defendant was on probation and reversed the decision of the district court revoking defendant's probation. State v. Turner, 19 Kan.App.2d 535, 873 P.2d 208 (1994). The matter is before us on petition for review.

The applicable facts are not in dispute and are summarized in the opinion of the Court of Appeals as follows:

"On January 25, 1991, Turner pled guilty in 90 CR 23 to five counts of burglary and four counts of theft. He was sentenced to a controlling term of two to five years' imprisonment. On the same day, Turner pled guilty in 90 CR 799 to three counts of burglary and three counts of theft. He received a controlling sentence of three to seven years, with the sentence imposed in 90 CR 799 to run consecutive to the sentence imposed in 90 CR 23. The court later placed Turner on probation in both cases for a period of five years. As a condition of his probation, Turner was required to obey the laws of the State of Kansas.

"On September 18, 1991, Turner pled guilty in 91 CR 436 to conspiracy to possess marijuana with intent to sell. He was sentenced to a term of one to two years and again placed on probation for five years. One of the conditions of this probation was that Turner obey the laws of the State of Kansas.

"On November 6, 1992, law enforcement authorities executed a search warrant at Turner's home in Wichita. During the search, the officers recovered substances which were alleged to be marijuana and cocaine. Turner was taken into custody and given a Miranda warning. He admitted under questioning to selling cocaine. On November 18, 1992, Turner was charged in 92 CR 2144 with possession of cocaine with intent to sell, possession of marijuana with intent to sell, and two counts of no tax stamp. On that day, Turner's probation officer likewise filed a warrant based on the evidence recovered on November 6, alleging that Turner had violated the conditions of his probation.

"The district court conducted a combination preliminary hearing/probation revocation hearing on December 22, 1992. The court denied Turner's request that the probation revocation proceedings be postponed until disposition of the new charges against him. During the hearing, the State offered the testimony of Wichita police detective Alan Prince. On cross-examination, Prince testified as follows:

'Q: Now, when you went to the residence ... to execute the search warrant, you knew that Mr. Turner was on probation; correct?

'A: Yes, I did.

'Q: And one of the goals of executing the search warrant at the time and date that you did was for the purposes of obtaining evidence to revoke his probation; correct?

'A: I really didn't have any--if I wanted to--he wasn't charged with any kind of probation violation when he was booked. That was never--that might have been a forethought, but the basic goal that day was to secure the residence, search the residence for any narcotics, and charge him for those narcotics that were located in the residence.

'Q: Okay. And, as a forethought, you were aware that if you found narcotics in the residence and were able to charge him with a new crime, that that would probably result in a probation revocation; correct?

'A: I was hoping it would, yes.

At the conclusion of the hearing, the court bound Turner over on the new charges and revoked his probation on the three earlier cases.

"Several months later, prosecutors determined that the affidavit supporting the warrant to search Turner's home contained false statements made either deliberately or with reckless disregard for the truth. The individual in charge of the search and of the information contained in the affidavit supporting the search warrant was Prince. Because the warrant to search Turner's home had been illegally obtained, the State determined the evidence recovered in the search was inadmissible and dismissed the charges against Turner in 92 CR 2144.

"Turner subsequently filed a motion to reconsider revocation of his probation in each of the three earlier cases. Turner argued that the exclusionary rule should be applied in a probation revocation hearing. The State conceded that, if the exclusionary rule were applicable, then there was no admissible evidence to support revocation of Turner's probation. The district court denied Turner's motion, finding as a matter of public policy that the exclusionary rule should not apply in a probation revocation hearing. The district court commented that, if Prince deliberately lied or intentionally misled a federal magistrate, he could be prosecuted under state law and subjected to an internal affairs investigation." 19 Kan.App.2d at 535, 536-37, 873 P.2d 208.

The Fourth Amendment of the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of an illegal search and seizure. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974).

The primary purpose of the exclusionary rule is to deter unlawful police conduct. 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." United States v. Calandra, 414 U.S. at 348, 94 S.Ct. at 620. "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." Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).

The rule is neither to be imposed in a vacuum nor administered mechanically. Rather, it should be applied in light of its deterrent purpose. United States v. Calandra, 414 U.S. at 348, 94 S.Ct. at 620; United States v. Winsett, 518 F.2d 51 (9th Cir.1975). Any extension of the rule beyond its traditional applicability in criminal proceedings is warranted only where the use of the remedy would result in appreciable deterrence of police misconduct. United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 3413, 82 L.Ed.2d 677 (1984). Thus, in deciding whether or not to extend the exclusionary rule, the likelihood that the rule's deterrent effect will be achieved should be balanced against the cost of withholding reliable information from the truth-seeking process. Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 1165-66, 94 L.Ed.2d 364 (1987); United States v. Calandra, 414 U.S. at 351-52, 94 S.Ct. at 621-22. (Calandra denied extension of the rule to grand jury proceedings.)

Under Calandra, and in subsequent cases, the question whether to apply the exclusionary rule is determined by weighing the extent to which its application will deter law enforcement officials from committing unconstitutional acts against the extent to which its application will deflect the truth-finding process, free the guilty, and generate disrespect for the law and the administration of justice. Stone v. Powell, 428 U.S. 465, 485-95, 96 S.Ct. 3037, 3048-53, 49 L.Ed.2d 1067 (1976) (exclusionary rule not applied during federal habeas corpus review).

The single issue before this court is whether the exclusionary rule should apply to a probation revocation hearing. The district court held it should not. The Court of Appeals held that it should, in circumstances where the search was conducted by a law enforcement officer who knew that the victim of the search was a probationer.

A majority of federal circuits, including the 10th Circuit, have held that the exclusionary rule does not apply to a probation revocation hearing. United States v. Finney, 897 F.2d 1047 (10th Cir.1990); United States v. Bazzano, 712 F.2d 826, 830-34 (3d Cir.1983), cert. denied 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir.1978); United States v. Winsett, 518 F.2d at 53-55; United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir.), cert. denied 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir.1973); United States v. Hill, 447 F.2d 817, 819 (7th Cir.1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir.1970) (parole revocation). See also Annot., Admissibility, In Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence...