U.S. v. Vandemark

• Decision Date: 10 July 1975
• Docket Number: No. 74-2312,74-2312
• Citation: 522 F.2d 1019
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Duane VANDEMARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1019

522 F.2d 1019

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Duane VANDEMARK, Defendant-Appellant.

No. 74-2312.

United States Court of Appeals Ninth Circuit.

July 10, 1975.

Howard B. Frank (argued), San Diego, Cal., for defendant-appellant.

Richard E. Strauss, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

OPINION

Before KOELSCH and WALLACE, Circuit Judges, and JAMESON, ^* District Judge.

WALLACE, Circuit Judge:

Vandemark was convicted of possession of 28 pounds of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The imposition of sentence was suspended and he was placed on probation for two years. Twenty-two days later, Border Patrol agents, unaware of Vandemark's status as a probationer, stopped the car he was driving, searched the trunk and found 284 pounds of marijuana. Vandemark was indicted for possession of marijuana with intent to distribute and his case was assigned to a different district court judge. He timely moved to suppress the marijuana upon the ground that his car was stopped without founded suspicion, but before the motion was heard, the government had the indictment voluntarily dismissed. Vandemark's probation officer then moved to revoke probation before the district judge who had originally granted probation. At the probation revocation hearing, Vandemark moved to strike all testimony about events subsequent to the allegedly unconstitutional stop. After hearing evidence concerning the stop and search, the district judge stated that the search was probably illegal but held that the exclusionary rule did not apply to probation revocation proceedings. He revoked probation and imposed a two-year prison term, from which Vandemark appeals. We affirm.

Vandemark first argues that evidence derived from the allegedly unconstitutional stop and search should have been excluded at the probation revocation hearing. This precise question was recently before us. We held that evidence obtained in violation of the Fourth Amendment is admissible in probation revocation proceedings if, at the time of the search, the law enforcement officers did not know or have reason to believe that the suspect was on probation. United States v. Winsett, 518 F.2d 51 (9th Cir. 1975). This accords with the almost unanimous view that the exclusionary rule does not usually apply in probation revocation proceedings. United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973) (alternate holding); United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir. 1975); United States v. Hill, 447 F.2d 817, 818-19 (7th Cir. 1971) (alternate holding); United States v. Allen, 349 F.Supp. 749, 753-54 (N.D.Cal.1972); United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648, 650-52 (E.D.La.1970), Aff'd, 438 F.2d 1027 (5th Cir.) (per curiam), Cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed.2d 160 (1971); People v. Calais, 37 Cal.App.3d 898, 904, 112 Cal.Rptr. 685, 689 (3d Dist.1974) (alternate holding); People v. Hayko, 7 Cal.App.3d 604, 609-11, 86 Cal.Rptr. 726, 730 (1st Dist.1970); People v. Atencio, Colo., 525 P.2d 461, 462-63 (1974); Bernhardt v. State, 288 So.2d 490, 500 (Fla.1974) (alternate holding); Brill v. State, 159 Fla. 682, 684-86, 32 So.2d 607, 608-10 (1947); People v. Dowery, 20 Ill.App.3d 738, 741-44, 312 N.E.2d 682, 684-87 (1st Dist.1974); State v. Caron, Me., 334 A.2d 495, 499-500 (1975); State v. Thorsness, Mont., 528 P.2d 692, 695-96 (1974); Stone v. Shea, 113 N.H. 174, 177, 304 A.2d 647, 649 (1973); State v. Simms, 10 Wash.App. 75, 79-81, 516 P.2d 1088, 1091-92 (2d Div.1973) (dictum); State v. Kuhn, 7 Wash.App. 190, 192-95, 499 P.2d 49, 51-52 (2d Div.), Aff'd on other grounds, 81 Wash.2d 648, 650-51, 503 P.2d 1061, 1063 (1972). But see Michaud v. State, 505 P.2d 1399, 1402-03 (Okl.Cr.1973). The exclusionary rule also does not generally apply in parole revocation proceedings. E. g., United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163-66 (2d Cir. 1970) (opinions of Hays, J., and Lumbard, C. J.); In re Martinez, 1 Cal.3d 641, 648-52, 83 Cal.Rptr. 382, 386-89, 463 P.2d 734, 738-41, Cert. denied 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88 (1970). As the district judge correctly considered the evidence allegedly seized in violation of the Fourth Amendment, there was ample evidence to support the revocation of probation.

Vandemark next argues that even if the district judge may revoke probation on the basis of illegally seized evidence, he may not consider that evidence in subsequently imposing a sentence. We disagree.

The prime purpose of the exclusionary rule is to deter unlawful police conduct. "(T)he 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. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). The rule is not to be imposed in a vacuum nor should it be administered mechanically. It should be applied in light of its deterrent purpose. See id.; United States v. Winsett, supra, 518 F.2d at 53-54. Not always is justice served by applying the exclusionary rule. "As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 620. Thus, unconstitutionally seized evidence may be introduced in grand jury proceedings, Id. at 351-52, 94 S.Ct. 613; it may be used against persons other than the victim of the search, Alderman v. United States, 394 U.S. 165, 171-76, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); it may be introduced to impeach the credibility of a criminal defendant who testifies at trial, Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954); it may be used in civil actions between private parties, Honeycutt v. Aetna Ins. Co., 510 F.2d 340 (7th Cir. 1975); and it may be used to demonstrate that a probationer has violated a term of his probation, United States v. Winsett, supra, 518 F.2d at 55.

United States v. Calandra, supra, provides the analytical framework for determining whether the exclusionary rule should apply to sentencing after revocation of probation. In holding that the exclusionary rule did not apply in grand jury proceedings, the Supreme Court weighed "the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context." 414 U.S. at 349, 94 S.Ct. at 620. Utilizing this balancing approach, we hold that extension of the exclusionary rule to sentencing subsequent to revocation of probation would have a disruptive effect far out of proportion to any incremental deterrence of police misconduct.

The detrimental effect of the exclusionary rule upon sentencing is apparent. It deprives the district judge of information necessary to effectuate the federal policy of individualized sentencing. Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) (dictum). A sentence can be properly tailored to fit an individual defendant only to the extent that the judge is aware of the major facts relevant to needed correction.

A sentencing judge . . . is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant if not essential to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.

Id. at 247, 69 S.Ct. at 1083 (footnote omitted). Closing the eyes of the sentencing judge to a fact as relevant as the commission of a subsequent crime would disrupt the sentencing process. This is especially true in sentencing subsequent to revocation of probation. As the illegally seized evidence may be considered to revoke probation, the fact of the revocation itself is properly before the judge as he contemplates the sentence to be imposed. This fact would be very significant as it tends to demonstrate that the defendant had abused the court's initial trust by violating a term of probation and indicates that probation has not assisted in rehabilitation. Application of the exclusionary rule to such cases would require the sentencing judge to ignore the evidence underlying the revocation. But once the fact of revocation is before the sentencing judge, excluding the underlying evidence only creates confusion. The sentencing judge would be forced to perform the difficult task of forgetting the underlying evidence he considered when he revoked probation. Such mental gymnastics add little to the administration of justice.

Further, without considering the underlying revocation, the judge is prevented from imposing a sentence commensurate with the wrongs committed. For example, Vandemark was originally convicted of illegal possession of 28 pounds of marijuana. His probation was revoked because he possessed 284 pounds, over ten times more contraband. Application of the exclusionary rule would prevent consideration of his deepening involvement in crime. Thus, the court could not impose a proper individualized sentence.

By contrast, the potential benefit from extension of the exclusionary rule is slight. In order to determine the benefits relevant to our balancing inquiry, we must return to the reason for the rule. The primary justification for exclusion is not that use of evidence tainted by an unconstitutional search aggravates the original constitutional violation. Nor is the rule intended to remedy the...