Oliver Milton Basnight, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: May 28, 1996
• Docket: 1845952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick Argued at Richmond, Virginia

OLIVER MILTON BASNIGHT, A/K/A LEONARD JONES MEMORANDUM OPINION * BY v. Record No. 1845-95-2 JUDGE JOHANNA L. FITZPATRICK MAY 28, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Oliver Milton Basnight (appellant) appeals the trial court's

revocation of his suspended sentence. He argues that the trial

court erred in relying on evidence obtained during a warrantless

search in violation of the Fourth Amendment. Because the

exclusionary rule does not apply in revocation hearings except

where bad faith is shown, we affirm the trial court.

In September 1990, appellant was convicted of possession of

cocaine with intent to distribute and sentenced to fifteen years

in the state penitentiary, with ten suspended.

On March 24, 1995, an anonymous informant notified the

Richmond Police Department that appellant, also known as Leonard

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Jones, was at 3007 Decatur Street in the City of Richmond.

Officer James C. Samuels (Samuels), who did not know appellant,

responded to the call to arrest him on an outstanding warrant.

Samuels entered the house and determined which of the three men

in the house was appellant. Samuels then arrested him and

handcuffed him. After placing him under arrest, Samuels left him

in the front hall, returned to the room where he first saw him,

and opened the window blinds. He saw the butt of a gun on the

chair where appellant had been sleeping and seized the gun. At

the police department, appellant stated that he won the gun while

gambling. On April 13, 1995, while the March 24, 1995 firearm

possession charge was pending, the trial court revoked a portion

of appellant's suspended sentence for failing to notify his

probation officer of his address and for absconding from

supervised probation. The court imposed the ten years, ordering

appellant to serve two and leaving eight suspended. On July 5,

1995, the court again ordered appellant to appear and "show cause

why the suspended sentence previously imposed should not be

revoked" based upon his possession of a firearm on March 24,

1995. At the show cause hearing on August 2, 1995, appellant

moved to suppress the gun and his statement, arguing that

Samuels' warrantless entry and search of the house violated his

Fourth Amendment rights. The trial court denied the motion to

suppress and found that the gun was properly seized because it

2 was in plain view. The court revoked appellant's suspended

sentence, imposed the remaining eight years, and granted the

Commonwealth's motion to nolle prosequi the underlying firearm

charge against appellant.

The Supreme Court of Virginia has held that "the

exclusionary rule is not applicable in a probation revocation

hearing absent a showing of bad faith on the part of the police."

Anderson v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___

(1996). In Anderson, the Supreme Court recognized that "[a]pplication of the exclusionary rule in a probation revocation

proceeding would frustrate the remedial and protective purposes

of the probation system, because a court would not be permitted

to consider relevant evidence of the probationer's rehabilitation

or regression." Id. "Conduct which may constitute bad faith on

behalf of a police officer, over and above the illegal search

itself, may take many forms." Anderson v. Commonwealth, 20 Va.

App. 361, 365, 457 S.E.2d 396, 398 (1995).

In the instant case, the exclusionary rule did not prevent

the trial court from considering the gun and appellant's

statement. No evidence shows any bad faith by the police. As in Anderson, the record fails to indicate that Samuels "knew or

thought [appellant] was on probation or parole, expected that the

evidence could be used against [appellant] for a secondary

purpose, or conducted the search or seizure with a purpose of

harassing or annoying [appellant]." Id. at 365-66, 457 S.E.2d at

3 398. Samuels did not know appellant and had no knowledge of

appellant's probationary status. The only information provided

to Samuels was that: (1) appellant was also known as Leonard

Jones; (2) he was at the Decatur Street address; and (3) there

was an outstanding warrant for his arrest.

Accordingly, the decision of the trial court is affirmed.

Affirmed.