State v. Lombardo

295 S.E.2d 399, 306 N.C. 594, 1982 N.C. LEXIS 1545

• Court: Supreme Court of North Carolina
• Decided: October 5, 1982
• Docket: 130A81
• Status: Published

Opinions

CARLTON, Justice.

I.

A.

In light of our holding below that the exclusionary rule is not applicable in probation revocation hearings, an extensive recitation of the facts in this case is unnecessary. However, in order to address the erroneous reasoning of the Court of Appeals, we summarize the essential facts.

Defendant was convicted of felonious sale and delivery of marijuana, a violation of G.S. 90-95(a)(l), in the Superior Court, Hyde County, on 13 August 1979. He received a five-year prison sentence which was suspended. Defendant was placed on probation. One of the conditions of probation was that defendant not have in his possession or control during the five years of probation any controlled substance as defined in Chapter 90 of the North Carolina General Statutes, unless prescribed by a medical doctor and dispensed by a physician or pharmacist.

Fifteen days later, defendant was arrested at Miami International Airport for possession of marijuana.¹ The circumstances leading up to that arrest are not contested. The stipulated facts are as follows: Officer William Johnson of the Dade County Public Safety Department saw defendant at about 5:00 p.m. standing on the sidewalk outside the National Airlines Terminal at Miami International Airport. Defendant was holding a suitbag and briefcase in one hand and a ticket in the other. He appeared nervous and impatient. Defendant then set down his luggage, walked over to a porter and began talking with him. Johnson moved closer, saw that defendant had a baggage claim check, and learned that defendant was en route to New Orleans. Johnson noticed that defendant also had a brown American Tourister suitcase on the sidewalk and overheard the defendant tell the porter he was concerned that this suitcase, which had already been checked for the flight, might not get aboard the plane which was to leave in ten minutes. After showing the porter his ticket and requesting that the suitcase be placed aboard the plane, Johnson watched the defendant carry his briefcase, suitbag and ticket into the terminal. Defendant stopped, set down his luggage and examined his ticket. Johnson thought he saw defendant put the claim check “either down the front of his pants or in his watch pocket.” Johnson noted that defendant’s jeans “were very tight.” Defendant looked around nervously and continued through the airport. At this point, Johnson got another officer, Det. D’Azevedo, to join him. The two officers then followed the defendant toward the boarding area. D’Azevedo displayed his badge to defendant and asked to speak to him. Defendant stopped. D’Azevedo asked defendant to show him his ticket and identification. Defendant appeared pale and sweaty. He gave D’Azevedo his ticket and his Florida driver’s license. Defendant’s hands shook so violently that he nearly dropped the license. D’Azevedo turned around and began writing down the information. Johnson, still standing behind the defendant, then watched the defendant place his hand, which was trembling violently, into the front of his pants and then, with what appeared to be a claim check in his hand, into the back of his tight-fitting blue jeans. Johnson then moved, grabbed both of defendant’s arms and seized his check. Meanwhile, D’Azevedo observed that the name on defendant’s ticket did not match the name on his driver’s license. At this point, Johnson left to procure the suitcase that went with the claim check he had seized from the defendant. The defendant then asked D’Azevedo, “Am I under arrest, because if I’m not, I’m leaving.” D’Azevedo told him he was not free to leave.

The officers obtained the services of the U.S. Customs narcotics detector dog unit. After retrieving the defendant’s suitcase, they placed it among three other suitcases randomly selected. A narcotics detector dog then “alerted” to the presence of a narcotic odor coming from defendant’s suitcase. Defendant was informed of this and placed under arrest for possession of an unknown controlled substance of unknown quantity. About half an hour later defendant and his luggage were transported to another station. During this trip Johnson and another officer questioned defendant about prior arrests and other matters relating to this case, although neither officer had informed defendant of his constitutional rights. D’Azevedo asked for defendant’s consent to search his briefcase and suitbag; defendant refused to give his consent. D’Azevedo had another dog at the second station inspect defendant’s briefcase and suitbag along with an unrelated briefcase placed with them. This dog indicated narcotics in both defendant’s briefcase and his suitbag.

A search warrant was obtained for the three pieces of luggage based on the “alerts” by the two U.S. Customs dogs. The suitcase and briefcase were forced open because defendant would not give the officers the combinations for the locks. About twenty grams of marijuana were found in the suitcase; no narcotics were found in the briefcase or suitbag.

Defendant’s probation officer instituted a revocation hearing in North Carolina based on the Miami arrest. Defendant moved to suppress any evidence obtained from that arrest on the ground that it had been unconstitutionally obtained. Defendant’s motion was granted by Judge Brown and the State appealed.

The Court of Appeals reversed and remanded, holding that Judge Brown erred in treating the matter as a warrantless search when the record disclosed that the search of defendant’s luggage in Miami was made pursuant to a search warrant. Its reasoning was then based on the presumption that the search warrant was valid because it did not appear in the record. The court concluded: “In the present case, the search warrant does not appear of record, and the record before us demonstrates that defendant offered no evidence of facts with which to overcome the presumption of regularity of the search warrant or to overcome the resulting prima facie evidence of the reasonableness of the search.” 52 N.C. App. at 321, 278 S.E. 2d at 321 (1981).

The Court of Appeals’ reasoning is erroneous. First, the court failed to initially determine whether the information used to obtain the warrant was procured through an unconstitutional seizure. If the information was so obtained then the warrant and the search conducted under it were illegal and the evidence obtained from them was “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 416-17, 9 L.Ed. 2d 441, 453-55 (1963). As such, the evidence would be inadmissible if the exclusionary rule is applied to probation revocation hearings.

Second, a careful reading of the two opinions of this Court cited by the Court of Appeals in support of its application of the presumption of regularity indicates the Court of Appeals misunderstood the presumption. These opinions demonstrate that the presumption is applicable only in situations where the defendant challenges the validity of a search warrant that was not introduced into evidence on the ground that the warrant itself does not conform to technical statutory requirements. State v. Spillars, 280 N.C. 341, 350-51, 185 S.E. 2d 881, 887 (1972) (addressing contention that an affidavit must be attached at all times to the search warrant); State v. Shermer, 216 N.C. 719, 721, 6 S.E. 2d 529, 530 (1940) (discussing whether an affidavit used to support a warrant must be signed or the attesting person examined). See also State v. McGowan, 243 N.C. 431, 433, 90 S.E. 2d 703, 705 (1956) (deciding whether a warrant is defective if it is not signed by one authorized to issue it).

Moreover, the Court of Appeals failed to recognize two other factors that must be examined before the presumption of regularity will apply: the presumption will operate only when the facts in the record do not indicate the occurrence of any irregularities and no objection to the validity of the warrant has been raised in a timely fashion. In State v. McGowan, this Court explained the operation of the presumption of regularity:

In this case neither the State nor the defendant introduced the warrant in evidence. If nothing else appears and if no objection to the validity of the warrant had been raised in the Superior Court, we would be justified in presuming the officers of the law performed their legal duties and that the warrant was legal and valid. (Citations omitted.) In this case, however, something else does appear and the validity of the warrant was challenged in the Superior Court.

243 N.C. at 433, 90 S.E. 2d at 705 (1956) (original emphasis).

In the case at bar the record plainly discloses that defendant made a timely objection to the validity of the warrant when defense counsel filed a motion to suppress the evidence obtained under the warrant on the basis of the seizure of defendant at the airport. Indeed, the thrust of defendant’s arguments before this Court and the Court of Appeals has been directed to the constitutionality of that initial seizure —the threshold issue the Court of Appeals failed to address —and the applicability of the “fruit of the poisonous tree” doctrine. Moreover, the uncontroverted facts to which both parties stipulated plainly raise the question of the validity of defendant’s initial seizure at the airport. Hence, the Court of Appeals erred in relying on the presumption of regularity of search warrants not introduced into evidence.

II.

As noted above, defendant’s primary contention from the outset has been that he was unconstitutionally seized in the Miami airport in violation of the fourth and fourteenth amendments. He relies primarily on Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed. 2d 890 (1980). Judge Brown agreed that the seizure was unconstitutional and allowed the motion to suppress. It is unnecessary for us to address the constitutionality of defendant’s seizure and the resulting search because we hold, as discussed below, that the exclusionary rule is not applicable in probation revocation hearings.

B.

In deciding whether the exclusionary rule should be applied in probation revocation hearings, we must keep in mind its purpose. In United States v. Calandra the United States Supreme Court stated that the “prime purpose” of the exclusionary rule is “to deter future unlawful police conduct” by removing the incentive to disregard the fourth amendment. 414 U.S. 338, 347, 94 S.Ct. 613, 619-20, 38 L.Ed. 2d 561, 571 (1974). Its purpose is “not to redress the injury . . . .” Id.

The deterrent effect of the exclusionary rule is based on the assumption that a police officer realizes that his duty is to conduct searches and seizures only in a manner that will help secure a conviction. The officer knows that the prosecution can obtain a conviction only if the evidence he acquires is admissible at trial The exclusionary rule deters police misconduct because the enforcement officer knows that if he violates a defendant’s constitutional rights the evidence he obtains in so doing will not be admissible at trial. If the evidence is not admissible (and the prosecution has nothing else upon which to base its case), the defendant cannot be convicted. In effect, the officer’s search or seizure has been a waste of time.²

Because the exclusionary rule is built on the notion that evidence derived from searches and seizures is oftentimes the foundation upon which a conviction will rest and the strength of the state’s case will be measured by the caliber of such evidence admissible at trial extending the application of the exclusionary rule to probation revocation hearings will add nothing to its deterrent effect. To hold otherwise would be to erroneously assume that an officer would approach any given search or seizure as if the suspect was on probation, an unrealistic assumption at best. The foregoing is true, of course, so long as the enforcement officer does not know that the defendant is on probation. If the officer knows that the defendant is on probation the officer may not be deterred from conducting an illegal search or seizure of the defendant unless he knows the evidence obtained from such illegal conduct is excluded at a probation revocation hearing.

As we stated in State v. Hewett, 270 N.C. 348, 351, 154 S.E. 2d 476, 478 (1967), probation is “an act of grace” accorded one who has been convicted of crime. The “defendant carries the keys to his freedom in his willingness to comply with the court’s sentence.” Id. at 353, 154 S.E. 2d at 479. In the case at bar, fifteen days after he was convicted of felonious sale and delivery of marijuana, officers found that same drug in defendant’s possession in violation of his probation. While the exclusionary rule may well apply in defendant’s trial in Florida, we hold that it will not apply in his North Carolina probation revocation hearing. To apply the rule in such cases would severely damage our probation system by allowing those like Lombardo, who show a total disregard for the system, to exclude evidence of their personal probation violations.

C.

Defendant also argues that the North Carolina statute that governs the terms which may be imposed as a condition of probation should be extended judicially to include application of the exclusionary rule to probation revocation hearings. G.S. § 15A-1343(b)(15) (Cum. Supp. 1981) provides that “[t]he Court may not require as a condition of probation that the probationer submit to any other search [besides one conducted by his probation officer] that would otherwise be unlawful.” Defendant contends that since the court cannot require, as a condition of probation, that the probationer submit to unlawful searches, it also should not be able to admit evidence obtained from an unlawful search to revoke the probation. This argument fails, however, to acknowledge the crucial distinction between the conditions that may be imposed on a probationer and the type of evidence that may be used to prove a violation of those conditions. If, in contravention of G.S. § 15A-1343(b)(15), a court could require a defendant to submit to unlawful searches as a condition of his probation, then the court, in effect, would have the power to rescind a defendant’s fourth amendment rights.³ Moreover, the mere refusal to submit to such a search would constitute a violation of defendant’s probation. That is, without regard to whether a defendant had engaged in any illegal or unacceptable behavior, his probation could be revoked simply because he refused to waive his constitutional rights. This is not the result when we decline to extend the exclusionary rule to probation revocation hearings. In refusing to apply the rule to probation revocation hearings we decide only that given that a defendant’s rights were violated by an officer unaware of defendant’s status, nevertheless, we will admit the evidence derived from the unconstitutional search or seizure because to exclude it would not further the interest of deterring police misconduct.

D.

Defendant correctly cites this Court’s decision in State v. McMilliam, 243 N.C. 775, 92 S.E. 2d 205 (1956) [hereinafter cited as McMilliam II], for the proposition that evidence obtained under an unlawful search warrant or without a search warrant must be excluded in a probation revocation hearing. However, for the reasons stated above, we expressly overrule McMilliam II and hold that evidence which does not meet the standards of the fourth and fourteenth amendments to the United States Constitution may be admitted in a probation revocation hearing.⁴ Although the United States Supreme Court has not yet agreed to address the issue, Queen v. Arkansas, 271 Ark. 929, 612 S.W. 2d 95, cert. denied, 50 U.S.L.W. 3351 (1981), our determination that the exclusionary rule will not apply in probation revocation hearings is in accord with the overwhelming majority of state courts and federal circuits that have answered the question, 77 A.L.R. 3d 636, 641 (1977); 30 A.L.R. Fed. 824, 827 (1976). Of the sixteen state courts which have addressed the issue, thirteen have held that the exclusionary rule does not apply in probation revocation hearings.⁵ Five of the six federal circuit courts that have faced the question have held similarly;⁶ only the fourth circuit has applied the exclusionary rule in probation revocation hearings, United States v. Workman, 585 F. 2d 1205 (4th Cir. 1978). We note, however, that in Workman the officers conducting the search were the defendant’s probation officer and an Alcohol Beverage Control agent who presumably knew the defendant was on probation. The facts in that case are clearly distinguishable, therefore, from the situation existing when defendant Lombardo was seized and searched at the Miami International Airport; that is, the police officers who searched Lombardo and his belongings were not aware of his status as a probationer when the search was conducted. Because the officers conducted their seizure and search of defendant as a preliminary step to a desired conviction of defendant in the Florida courts, their conduct was not the sort that application of the exclusionary rule to probation revocation hearings would deter.

In overruling McMilliam II this jurisdiction joins the mainstream of American legal thought about the issue before us. When McMilliam II was decided over twenty-six years ago, the exclusionary rule had not yet been applied on constitutional grounds in state court proceedings.⁷ In reaching our decision today, however, this Court has the benefit of over twenty years of experience in dealing with the exclusionary rule, wisdom gathered from many jurisdictions including our own. We feel that our decision to overrule McMilliam II is sound in light of this experience, the deterrent purpose of the exclusionary rule, and the viability of the probation system.

For all the reasons articulated above, we hold that the exclusionary rule should not be applied in probation' revocation hearings.

The decision of the Court of Appeals is modified and affirmed. This cause is remanded to the Court of Appeals with instructions to remand to the trial court for further proceedings consistent with this opinion.

Modified and Affirmed.

1 . Marijuana is a Schedule VI controlled substance under G.S. 90-94, possession of which is prohibited under G.S. 90-95.

2 . We note that if a police officer conducts unconstitutional searches or seizures merely to harass, he will do so without regard to whether the exclusionary rule applies.

3 . We do not discuss here the propriety of such actions.

4 . We note that this Court determined in another case that the evidence in McMilliam II was procured in violation of defendant’s state constitutional rights, State v. McMilliam [companion case to McMilliam II hereinafter cited as McMilliam 7], 243 N.C. 771 (1955). The evidence in McMilliam I was excluded at defendant’s criminal trial under a statute which provided generally that evidence obtained without a warrant shall be incompetent “in the trial of any action,” G.S. 15-27. McMilliam II, which we overrule today, judicially extended the reach of G.S. 15-27 by excluding incompetent evidence at probation revocation hearings. Although G.S. 15-27 has been repealed by Act of April 11, 1974, ch. 1286, § 26, 1973 N.C. Sess. Laws 490, 556, this Court must still examine the constitutional basis for application of the exclusionary rule to probation revocation hearings.

5 . Arizona—State v. Towle, 125 Ariz. 397, 609 P. 2d 1097 (1980) (where police do not know arrestee is a probationer).

California—People v. Rafter, 41 Cal. App. 3d 557, 116 Cal. Rptr. 281 (1974); People v. Hayko, 7 Cal. App. 3d 604, 86 Cal. Rptr. 726 (1970).

Colorado—People v. Wilkerson, 189 Colo. 448, 541 P. 2d 896 (1975) (except where the unreasonable search or seizure is such as to shock the conscience of the court); People v. Atencio, 186 Colo. 76, 525 P. 2d 461 (1974).

Florida—Croteau v. State, 334 So. 2d 577 (Fla. 1976); Bernhardt v. State, 288 So. 2d 490 (Fla. 1974); Brill v. State, 159 Fla. 682, 32 So. 2d 607 (1947); Kinzer v. State, 366 So. 2d 874 (Fla. Dist. Ct. App. 1979); Latham v. State, 360 So. 2d 127 (Fla. Dist. Ct. App. 1978); Bruno v. State, 343 So. 2d 1335 (Fla. Dist. Ct. App. 1977), cert. denied, 354 So. 2d 986 (Fla. 1977).

The Florida Supreme Court has determined, however, that the Florida Constitution requires that the exclusionary rule be applied in probation revocation hearings. Grubbs v. State, 373 So. 2d 905 (1979).

Illinois—People v. Watson, 69 Ill. App. 3d 497, 387 N.E. 2d 849 (1979) (except where police harassment demonstrated); People v. Swanks, 34 Ill. App. 3d 794, 339 N.E. 2d 469 (1975); People v. Dowery, 20 Ill. App. 3d 738, 312 N.E. 2d 682 (1974), aff’d, 62 Ill. 2d 200, 340 N.E. 2d 529 (1975).

Indiana—Dulin v. State, 169 Ind. App. 211, 346 N.E. 2d 746 (1976) (unless evidence illegally seized as part of a continuing plan of police harassment or in a particularly offensive manner).

Maine—State v. Caron, 334 A. 2d 495 (Me. 1975).

Montana—State v. Thorsness, 165 Mont. 321, 528 P. 2d 692 (1974).

New Hampshire—Stone v. Shea, 113 N.H. 174, 304 A. 2d 647 (1973).

Oregon—State v. Nettles, 287 Or. 131, 597 P. 2d 1243 (1979); State v. Ray, 41 Or. App. 763, 598 P. 2d 1293 (1979).

Pennsylvania—Commonwealth v. Davis, 234 Pa. Super. 31, 336 A. 2d 616 (1975).

Rhode Island—State v. Spratt, 386 A. 2d 1094 (R.I. 1978).

Washington—State v. Proctor, 16 Wash. App. 865, 559 P. 2d 1363 (1977) (unless police act in bad faith); State v. Simms, 10 Wash. App. 75, 516 P. 2d 1088 (1973); State v. Kuhn, 7 Wash. App. 190, 499 P. 2d 49, aff’d on other grounds, 81 Wash. 2d 648, 503 P. 2d 1061 (1972).

Apparently, the only states which hold that the exclusionary rule should apply in probation revocation hearings are Georgia, Oklahoma and Texas:

Georgia—Adams v. State, 153 Ga. App. 41, 264 S.E. 2d 532 (1980); Giles v. State, 149 Ga. App. 263, 254 S.E. 2d 154 (1979); Amiss v. State, 135 Ga. App. 784, 219 S.E. 2d 28 (1975); Cooper v. State, 118 Ga. App. 57, 162 S.E. 2d 753 (1968).

Oklahoma—Michaud v. State, 505 P. 2d 1399 (Okla. Crim. App. 1973).

Texas—Moore v. State, 562 S.W. 2d 484 (Tex. Crim. App. 1978); Rushing v. State, 500 S.W. 2d 667 (Tex. Crim. App. 1973).

Although the Court of Appeals of New York has not expressly addressed the applicability of the exclusionary rule in probation revocation hearings, it has held that a motion to suppress evidence illegally seized should be granted in a probation revocation hearing where two probation officers and a police officer aware of defendant’s status conducted the illegal search. People v. Jackson, 46 N.Y. 2d 171, 385 N.E. 2d 621, 412 N.Y.S. 2d 884 (1978).

6 . The fifth, sixth, seventh and ninth circuits have all held that the exclusionary rule does not apply in probation revocation hearings. The second circuit held that the rule is not applicable in parole revocation proceedings. United States v. Wiygul, 578 F. 2d 577, 578 (5th Cir. 1978) (absent a demonstration of police harassment); United States v. Vandemark, 522 F. 2d 1019, 1020 (9th Cir. 1975); United States v. Winsett, 518 F. 2d 51 (9th Cir. 1975); United States v. Farmer, 512 (6th Cir. 1975); cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed. 2d 305; United States v. Brown, 488 F. 2d 94, 95 (5th Cir. 1973); United States v. Hill, 447 F. 2d 817, 818-19 (7th Cir. 1971); 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. 1971), cert. denied, 404 U.S. 880, 92 S.Ct. 195, 30 L.Ed. 2d 160 (1971); United States ex rel Sperling v. Fitzpatrick, 426 F. 2d 1161, 1163-64 (2d Cir. 1970) (exclusionary rule not applicable to parole revocation proceedings).

7 . The United States Supreme Court made the fourth amendment exclusionary rule applicable to the states through the fourteenth amendment in 1961 in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961).