Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, 

 and Millette, JJ., and Russell, S.J. 

JAMES GREGORY LOGAN OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 090706 January 15, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This appeal requires us to revisit the question of the 

application of the exclusionary rule to probation revocation 

proceedings. Reaffirming our holding in Anderson v. 

Commonwealth, 251 Va. 437, 470 S.E.2d 862 (1996), we hold that 

the exclusionary rule is not applicable in probation 

revocation proceedings absent a showing of bad faith on the 

part of the police. 

Facts and Proceedings

 On August 22, 2003, Danville Police Officer Jerry L. Pace 

followed James Gregory Logan into a rooming house under the 

mistaken apprehension that Logan was a man named Chappell for 

whom there was an outstanding felony warrant. Logan, a 

resident of the rooming house, was standing on the secondfloor landing of a stairway leading upward from the entrance 

hall. Officer Pace saw Logan hand a piece of crack cocaine to 

another person and arrested him for possession of cocaine. 

This event gave rise to a ramified chain of proceedings 

leading to the present appeal. 
 Logan’s motion to suppress the Commonwealth’s evidence on 

Fourth Amendment grounds was denied by the Circuit Court of 

the City of Danville, which held that Logan had no expectation 

of privacy in the common areas of the rooming house. He was 

convicted of possession of cocaine and sentenced to four years 

and six months imprisonment, with three years suspended. That 

conviction was reversed by the Court of Appeals sitting en 

banc on the ground that the evidence obtained pursuant to the 

officer’s warrantless entry into the rooming house violated 

Logan’s rights under the Fourth Amendment. Logan v. 

Commonwealth, 47 Va. App. 168, 622 S.E.2d 771 (2005)1 (Logan 

II). The Commonwealth did not appeal that reversal. 

 At all times pertinent to Logan II, Logan was on 

probation for an earlier conviction, in the same circuit 

court, for distribution of cocaine as an accommodation in 2001 

(Logan I). In that case he was sentenced, on March 15, 2002, 

to five years imprisonment. The sentence was suspended, 

conditioned upon Logan’s serving one year and five months 

imprisonment, followed by 12 months of supervised probation, 

with Logan to be of good behavior for three years and six 

months after his release from probation. 

 1

 The Court of Appeals, en banc, affirmed the prior 

decision of a panel of the Court, but did so on the narrow 

ground that the Commonwealth had conceded that the rooming 

house was not open to the general public. Id.

2
 After the conviction in Logan II, the officer supervising 

Logan’s probation under Logan I reported to the court that 

Logan had not been of good behavior based upon the facts 

leading to his conviction in Logan II. Logan was brought 

before the court on a rule to show cause and counsel was 

appointed for him, but the revocation hearing was continued 

until the Court of Appeals decided Logan II. After the Court 

of Appeals reversed the conviction in Logan II, Logan’s 

counsel moved the circuit court to dismiss the rule to show 

cause, contending that the Commonwealth’s effort to revoke 

Logan's probation from Logan I was now based solely upon a 

conviction that had been vacated. The Commonwealth asked the 

court to revoke probation notwithstanding the reversal, based 

not upon the conviction but upon Logan’s failure to be of good 

behavior. The circuit court denied the motion to dismiss and 

entered an order revoking suspension of the sentence imposed 

in Logan I. 

 Logan appealed the revocation order to the Court of 

Appeals. A panel of that Court held, based upon federal 

decisions, that the exclusionary rule is never applicable in 

probation revocation proceedings. Logan v. Commonwealth, 50 

Va. App. 518, 524, 651 S.E.2d 403, 406 (2007). We awarded 

Logan an appeal from that judgment and reversed it, remanding 

the case to the Court of Appeals for consideration of Logan’s 

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contention that the circuit court had erred in finding that 

Officer Pace had not acted in bad faith. In so ruling, we 

held that the Court of Appeals’ reliance on federal decisions 

was misplaced and that the application of the exclusionary 

rule to probation revocation proceedings continued to be as we 

expressed it in Anderson. Logan v. Commonwealth, 276 Va. 533, 

535-36, 666 S.E.2d 346, 347-48 (2008). 

 Upon remand, the Court of Appeals held that the record 

contained no evidence to support a finding that Officer Pace 

had acted in bad faith. The officer testified that he had 

been in the rooming house on prior occasions and had seen no 

signs to indicate that it was not open to the general public.2

The Court concluded that, although the Commonwealth later 

conceded that the rooming house was not in fact open to the 

general public, “[the fact that the officer] was mistaken, 

however, does not mean that he acted in bad faith.” Logan v. 

Commonwealth, 53 Va. App. 520, 526, 673 S.E.2d 496, 499 

(2009). The Court of Appeals affirmed the circuit court’s 

determination that Officer Pace’s actions did not warrant the 

 2

 Another witness testified that there were signs at and 

near the front door saying “No Trespassing” and “Ring or Knock 

to Enter.” Officer Pace testified that the only signs he saw 

said merely “Rooms.” He said that when he entered, “it was a 

storm door, and there’s a wooden door on the inside, but at 

that particular time it was standing open.” 

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exclusion of his evidence at the probation revocation hearing. 

Id. at 527, 673 S.E.2d at 499. We awarded Logan an appeal. 

Analysis

 In Anderson, we said: 

 We hold that the exclusionary rule is not 

applicable in a probation revocation proceeding 

absent a showing of bad faith on the part of the 

police. There is a strong public interest in 

receiving all evidence relevant to the question 

whether a probationer has complied with the 

conditions of probation. Application 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. 

251 Va. at 440, 470 S.E.2d at 863. We continue to adhere to 

that holding. In Anderson, we explained the difference 

between the application of the exclusionary rule in a criminal 

trial and its application in probation revocation proceedings. 

The rule is a judicially-created remedy, not an individual’s 

constitutional right. The purpose of the rule is to deter 

future unlawful police conduct. Exclusion of unlawfully 

seized evidence at trial makes its seizure profitless to the 

police. Excluding it in a probation revocation proceeding 

will ordinarily serve only to impede the search for truth 

where the inquiry is whether the defendant has violated the 

terms of his probation. Id. 

5
 The circuit court made an express factual finding that 

the officer did not act in bad faith. Such findings are 

binding upon appeal unless they are plainly wrong or without 

evidence to support them because the credibility of witnesses 

and the weight accorded to evidence are matters solely for the 

fact-finder, who has an opportunity to see and hear that 

evidence as it is presented. Elliott v. Commonwealth, 277 Va. 

457, 462-63, 675 S.E.2d 178, 181 (2009). 

 “Bad faith,” in Fourth Amendment jurisprudence, is not 

the mere opposite of “good faith,” as those terms have been 

judicially defined. In applying the bad faith exception 

stated in Anderson, exclusion of proof is warranted only upon 

a showing of conscious wrongdoing by an officer.3 Absence of 

the objective “good faith” required for certain constitutional 

exceptions to the warrant requirement is not sufficient to 

trigger the exclusionary rule in probation revocation 

proceedings. The United States Supreme Court has repeatedly 

refused to apply Fourth Amendment exclusion standards to 

probation revocation proceedings. Pennsylvania Bd. of Prob. & 

Parole v. Scott, 524 U.S. 357, 363-64 (1998). 

 3

 “Bad faith” is defined differently in the civil context, 

but even there it connotes the “conscious doing of a wrong.” 

See Black’s Law Dictionary 139 (6th ed. 1990). 

6
 A “good faith” analysis, in Fourth Amendment cases, turns 

upon a purely objective determination: the conclusion an 

objective police officer would reasonably have drawn under the 

circumstances known to him at the time of the search rather 

than the officer’s subjective motivation or state of mind. 

Brigham City v. Stuart, 547 U.S. 398, 404 (2006); Illinois v. 

Krull, 480 U.S. 340, 349-50 (1987); United States v. Leon, 468 

U.S. 897, 922 n.23 (1984); Robinson v. Commonwealth, 273 Va. 

26, 34-38, 639 S.E.2d 217, 222-24 (2007). 

 A “bad faith” analysis, by contrast, turns almost 

entirely upon the subjective motivation or state of mind of 

the police officer making the search. In order to invoke the 

exclusionary rule in a probation revocation case, the evidence 

must show that the officer making the search was motivated by 

bias, personal animus, a desire to harass, a conscious intent 

to circumvent the law, or a similar improper motive. See

Commonwealth v. Michaliga, 947 A.2d 786, 792-93 (Pa. Super. 

2008) (bad faith is not simply bad judgment or negligence but 

rather it implies conscious wrongdoing); Spencer v. State, 667 

S.E.2d 223, 225 (Ga. Ct. App. 2008) (police must not act in 

bad faith or in an arbitrary or capricious manner when 

searching a probationer); Plue v. State, 721 N.E.2d 308, 310 

(Ind. Ct. App. 1999) (evidence seized illegally will be 

7
excluded in a revocation proceeding if seized as part of a 

continuing plan of police harassment). 

 The record in the present case is devoid of evidence that 

would tend to show any such motivation on the part of Officer 

Pace. Therefore, applying the rule in Anderson, we will 

affirm the judgment of the Court of Appeals insofar as it 

upholds the revocation of Logan’s probation and suspended 

sentence. 

 Four months after we had remanded this case to the Court 

of Appeals for reconsideration of Logan’s bad faith claim, the 

Supreme Court of the United States decided Herring v. United 

States, 555 U.S. ___, 129 S.Ct. 695 (2009). That case 

involved the application of the exclusionary rule to evidence 

seized in a search that violated the Fourth Amendment because 

the police were mistakenly told that the defendant was wanted 

on an outstanding warrant in an adjoining county, when in fact 

that warrant had been recalled but the adjoining county’s 

database had not been updated to show the recall. Herring

involved the application of the exclusionary rule to evidence 

offered at a criminal trial, not a probation revocation 

proceeding. On remand, the Court of Appeals nevertheless 

applied the reasoning of Herring to the question of bad faith 

we had directed it to consider. That application may be read 

to substitute an objective “good faith” test for the 

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admissibility, in probation revocation proceedings, of 

evidence that has been seized in violation of the Fourth 

Amendment. 

 Because we adhere to the requirement that bad faith must 

be shown in order to trigger the application of the 

exclusionary rule in probation revocation proceedings, we 

expressly overrule the opinion of the Court of Appeals in 

Logan v. Commonwealth, 53 Va. App. 520, 673 S.E.2d 209 (2009), 

insofar as it may be read to suggest that our holding in 

Anderson is in any way altered. 

Affirmed. 

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