|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Olsen, 405
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Nathaniel D. Pitnof,
Worcester, for defendant.
Judy G. Zeprun, Asst.
Atty. Gen., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.
ABRAMS, Justice.
The sole
issue on appeal is whether evidence seized in violation of the Fourth Amendment
to the Constitution of the
While on
probation for prior drug‑related convictions in the Westborough Division
of the District Court Department, Eva M. Olsen was arraigned on three new drug‑related
indictments in the Superior Court in
At trial, the judge allowed Olsen's motion to
suppress all the evidence. (FN2) The Commonwealth informed the judge that it
would not appeal the suppression and that it had no other evidence with which
to convict the defendant. The judge
dismissed all three indictments with prejudice.
On the same afternoon, Olsen's probation in the District Court was
revoked on the basis of the same evidence that the trial judge had suppressed.
Olsen
concedes that the majority of jurisdictions, including the Federal courts, that
have considered the question have decided that the exclusionary rule does not
apply to probation revocation proceedings.
The reasons for not excluding the evidence in a probation proceeding
based on violation of the Fourth Amendment are the same as those based on the
Fifth Amendment. See Commonwealth v. Vincente, 405 Mass. 278,
540 N.E.2d 669 (1989). Olsen argues,
however, that art. 14 may provide broader protection to probationers than the
United States Constitution. See Commonwealth v. Fini,
403 Mass. 567, 570, 531 N.E.2d 570 (1988).
Olsen urges us to join the minority of States in extending the
exclusionary rule to probation revocation proceedings as a matter of State
law. (FN3)
[405 Mass.
493] In Federal law and in most jurisdictions, the exclusionary rule does not
apply as a matter of course to probation revocation proceedings because the
"application of the exclusionary rule is restricted to those areas where
its remedial objectives are thought most efficaciously served." See
Commonwealth v. Vincente, supra 405 Mass. at 280,
540 N.E.2d 669, quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct.
613, 620, 38 L.Ed.2d 561 (1974). Accord United
States v. Bazzano, 712 F.2d 826, 832‑833
(3d Cir.1983), cert. denied sub nom. Mollica v. United States, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984); United States v. Winsett, 518 F.2d 51, 53‑54 (9th Cir.1975);
People v. Rafter, 41 Cal.App.3d 557, 116 Cal.Rptr.
281 (1974); Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, ‑‑‑
U.S. ‑‑‑‑, 109 S.Ct. 242, 102
L.Ed.2d 230 (1988); People v. Dowery,
62 Ill.2d 200, 340 N.E.2d 529 (1975); Dulin v. State,
169 Ind.App. 211, 346 N.E.2d 746 (1976);
State v. Caron, 334 A.2d 495 (Me.1975); Chase v. State, 309 Md.
224, 522 A.2d 1348 (1987); State v. Thorsness,
165 Mont. 321, 528 P.2d 692 (1974). See
also Annot., 77 A.L.R.3d 636 (1977 & 1988
Supp.). The Supreme Court's dictum in Wong
Sun v. United States, 371 U.S. 471, 485, 83 S.Ct.
407, 416, 9 L.Ed.2d 441 (1963), to the effect that such evidence "shall
not be used at all," clearly does not apply to every kind of forum and
proceeding under Federal law nor under the law of most States. See
United States v. Calandra, supra; Commonwealth v. Vincente, supra;
and cases cited, supra.
A
probation revocation proceeding is not a criminal trial. Gagnon v. Scarpelli,
411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d
656 (1973). See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct.
2593, 2599, 33 L.Ed.2d 484 (1972).
(FN4) The probationer already has
been convicted of a crime at a trial. He
or she enjoys "only ... conditional liberty ... dependent on observance of
special parole restrictions." Morrissey, supra at 480, 92 S.Ct. at 2599. United States v. Basso, 632 F.2d 1007,
1013 (2d Cir.1980). Probation is granted
with the hope that the probationer will be able to rehabilitate himself or
herself under the supervision of the probation
officer. "Evidence that a
probationer is not complying [405 Mass. 494] with the conditions of probation
may indicate that he or she has not been rehabilitated and continues to pose a
threat to the public." Commonwealth v. Vincente,
supra 405 Mass. at 280, 540 N.E.2d 669.
Accordingly, "the State has an overwhelming interest in being able
to return an individual to imprisonment without the burden of a new adversary
criminal trial if in fact [the probationer] has failed to abide by the
conditions of his [or her probation]." Morrissey, supra 408 U.S. at 483, 92 S.Ct. at 2601.
We weigh
this overwhelming State interest in admitting all reliable evidence against the
deterrent purpose of the exclusionary rule.
Most courts have concluded, and we agree, that a police officer's
"zone of primary interest" is in gathering evidence with which to
convict a defendant of crime. Bazzano, supra
at 832, quoting United States v. Janis,
428 U.S. 433, 458, 96 S.Ct. 3021, 3034, 49 L.Ed.2d
1046 (1976). Thus, it is at criminal
trial that the exclusionary rule's "remedial objectives are ... most
efficaciously served." Calandra, supra
414 U.S. at 348, 94 S.Ct. at 620. Exclusion of such evidence from a probation
revocation hearing, however, would provide at most only marginal additional
deterrence against police misconduct.
See cases cited, supra. As one commentator has stated: "[I]t cannot realistically be supposed
that a police officer, no matter how venal he [or she] may be, will refrain
from obeying the law, thereby losing vital case‑in‑chief evidence,
in the vain hope that in exchange he [or she] may obtain evidence which can
only be used 'should it subsequently appear that the victim of such conduct was
a [probationer]' " (footnotes omitted).
Cole, The Exclusionary Rule in Probation and Parole Revocation
Proceedings: Some Observations on
Deterrence and the "Imperative of Judicial Integrity," 52 Chi.‑Kent
L.Rev. 21, 36‑37 (1975), quoted in Chase v. State, supra 309 Md. at 253,
522 A.2d 1348. When the police officers
involved in the illegal search and seizure neither know nor have reason to know
of the search victim's status as probationer, the deterrent value of excluding
the evidence from a probation revocation proceeding is absent. Winsett, supra at 54 & n. 5. Payne v. Robinson, supra
207 Conn. at 571, 541 A.2d 504. Cf. State v. Shirley, 117 Ariz. 105, 570
P.2d 1278 (1977) (exclusionary rule applies when officers conducting illegal
search and seizure knew of probationer's status).
[405 Mass.
495] Olsen argues, however, that concern for judicial integrity precludes the
use of illegally obtained evidence in any court proceeding whatsoever. See
Elkins v. United States, 364 U.S. 206, 222‑223, 80 S.Ct. 1437, 1446‑1447, 4 L.Ed.2d 1669 (1960). It does not appear that any of the cases in
which illegally obtained evidence was held inadmissible to revoke probation
explicitly relied on a concern for judicial integrity. See
United States v. Rea, 678 F.2d 382 (2d Cir.1982); United States v. Workman,
585 F.2d 1205 (4th Cir.1978); (FN5) State v. Shirley, supra; State v. Dodd,
396 So.2d 1205 (Fla.Dist.Ct.App.1981), aff'd, 419
So.2d 333 (Fla.1982); Ray v. State, 387 So.2d 995
(Fla.Dist.Ct.App.1980); Adams v. State, 153 Ga.App.
41, 264 S.E.2d 532 (1980); Amiss v. State, 135 Ga.App.
784, 219 S.E.2d 28 (1975); State v. Burkholder, 12 Ohio St.3d 205,
466 N.E.2d 176 cert. denied, 469 U.S. 1062, 105 S.Ct.
545, 83 L.Ed.2d 432 (1984); Michaud v. State, 505 P.2d 1399
(Okla.Crim.App.1973); Rushing v. State, 500 S.W.2d 667 (Tex.Crim.App.1973). A few dissenting opinions decry the use of
illegally obtained evidence in any proceeding as a matter of judicial
integrity. See, e.g., Bazzano, supra
at 846 (Gibbons, J., dissenting); United States v. Hill, 447 F.2d 817, 819
(7th Cir.1971) (Fairchild, J., dissenting); Dowery, supra
62 Ill.2d at 208‑210, 340 N.E.2d 529 (Goldenhersh,
J., dissenting); Caron, supra at 505‑506 (Dufresne, C.J., dissenting). We believe, in the circumstances of this
case, the imperative of judicial integrity is adequately served by the
exclusion of illegally obtained evidence at trial.
Our decision in Commonwealth v. Fini, supra, is not to
the contrary. In Fini, we concluded that evidence
obtained through illegal electronic eavesdropping in a private home is
inadmissible, under art. 14 of the Declaration of Rights, to impeach a
defendant's testimony at trial. See Commonwealth v. Blood, 400 Mass. 61, 68‑71,
507 N.E.2d 1029 (1987) (evidence derived from illegal electronic surveillance
inadmissible in Commonwealth's case‑in‑chief). We stated in Fini, supra 403 Mass. at 573, 531 N.E.2d
570, that "half measures of deterrence are not enough," and that
"the exclusion of such [illegally obtained] evidence for all purposes will
act as a still [405 Mass. 496] further deterrent." Despite our broad language, it is clear that
we were referring to "all purposes" at trial. In the next sentence, we stated: "Such a rule would tend to discourage
the gathering of such evidence based on the hope that it will reach the jury in
one way if not in another." Id.
All that was before us in Fini was the use of electronic eavesdropping evidence
at trial; we did not decide any other
issue.
We note
that this case does not involve egregious police conduct, Thompson v. United States, 444 A.2d 972 (D.C.1982), or conduct
that "shock[s] the conscience." In re Martinez, 1 Cal.3d 641, 649‑652,
83 Cal.Rptr. 382, 463 P.2d 734 (1970). Our decision should not be taken as an
invitation to harassment. People v. Watson, 69 Ill.App.3d 487, 26 Ill.Dec. 19, 387 N.E.2d 849 (1979). Dulin
v. State, 169 Ind.App. 211, 346 N.E.2d 746
(1976). We expressly leave open the
question whether the police officer's knowledge of the probationer's status
would compel a different result. See Payne v. Robinson, 207 Conn. 565, 573,
541 A.2d 504 (1988); and compare State v. Caron, 334 A.2d 495, 502
(Me.1975) (Dufresne, C.J.,
dissenting).
Our
decision protects the availability of probation for offenders. If we were to exclude that evidence from
probation revocation hearings, there might be a disinclination to order
probation in the first place. See People v. Dowery,
20 Ill.App.3d 738, 312 N.E.2d 682, aff'd, 62 Ill.2d
200, 340 N.E.2d 529 (1974); State v. Kuhn, 7 Wash.App.
190, 499 P.2d 49 aff'd, 81 Wash.2d 648, 503 P.2d 1061
(1972). Our decision today also protects
the public interest in having access to all reliable evidence relevant to the
probationer's conduct and rehabilitation. Commonwealth v. Vincente,
supra.
Order revoking probation affirmed.
(FN1.) The Commonwealth argues that Olsen's
failure to move to suppress the evidence at the surrender hearing constituted a
waiver of the issue. However, the record
shows that she raised the issue and asserted her belief that the evidence was
inadmissible at the surrender hearing.
We assume for purposes of this appeal that her actions were adequate to
preserve the issue.
(FN2.)
The reason for suppression does not appear in the record. The record reveals that the officer knew of
Olsen's arrest but not of her probationary status.
(FN3.)
See Adams v. State, 153 Ga.App. 41, 264 S.E.2d 532 (1980); Amiss v. State, 135 Ga.App. 784, 219 S.E.2d 28 (1975); State v. Burkholder, 12
Ohio St.3d 205, 466 N.E.2d 176, cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984); Michaud v. State, 505 P.2d
1399 (Okla.Crim.App.1973); Rushing v. State, 500 S.W.2d 667
(Tex.Crim.App.1973).
(FN4.) Morrissey concerned revocation of
parole.
Gagnon expressly equated the due process requirements, applicable to
proceedings for revocation of parole, with those applicable to proceedings for
revocation of probation, stating that neither is "a stage of a criminal
prosecution, but [both do] result in a loss of liberty."
Gagnon, supra 411 U.S. at 782, 93 S.Ct. at
1759. Cf. Commonwealth v. Sawicki, 369 Mass. 377,
380, 339 N.E.2d 740 (1975).
(FN5.)
Both Rea and Workman involved warrantless searches by
probation officers. See Commonwealth v. LaFrance,
402 Mass. 789, 525 N.E.2d 379 (1988).