Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and 

Keenan, JJ., and Whiting, Senior Justice 

ARNOLD DORSEY ANDERSON 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 951086 April 19, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal of a judgment entered in a probation 

revocation proceeding, we consider whether the exclusionary rule 

may be used to exclude evidence suppressed in a prior criminal 

proceeding. 

 Arnold Dorsey Anderson was convicted on December 18, 1989, 

in the Circuit Court of Nottoway County on four counts of cocaine 

distribution, possession of cocaine with the intent to 

distribute, and distribution of not more than one-half ounce of 

marijuana. Anderson's punishment was fixed at 20 years' 

imprisonment with 12 years of the sentence for each of the 

cocaine distribution offenses suspended, a suspended term of 40 

years for the possession of cocaine offense, and a term of 30 

days in jail for the marijuana offense. 

 In 1993, while at liberty on probation, Anderson was charged 

with possession of cocaine. The Circuit Court of Nottoway County 

suppressed most of the Commonwealth's evidence because it was 

obtained in violation of Anderson's Fourth Amendment rights and 

dismissed the prosecution. Subsequently, the Commonwealth 

initiated this probation revocation proceeding in the Circuit 

Court of Nottoway County and the court issued a capias requiring 

Anderson to show cause why his suspended sentences should not be 

revoked. During the probation revocation hearing, the 

Commonwealth introduced in evidence the same evidence which had 
been suppressed in the 1993 criminal proceeding. The suppressed 

evidence included: "two baggies" containing cocaine residue 

which had been found in Anderson's bathrobe; Anderson's 

statements to the police that he had flushed marijuana down a 

toilet; and statements that he had purchased and sold a rock of 

crack cocaine and that he had consumed a portion of the cocaine. 

 

 Anderson objected to the admission of this evidence for two 

reasons. First, Anderson asserted that the doctrine of 

collateral estoppel prohibits the Commonwealth from re-litigating 

the issue whether the search and seizure was constitutionally 

permissible because that issue had been decided adversely to the 

Commonwealth in the 1993 criminal proceeding. Second, Anderson 

argued that the exclusionary rule prohibits the admission of that 

evidence. 

 The circuit court overruled Anderson's objections, 

considered the challenged evidence, revoked 20 years of 

Anderson's suspended sentence, and sentenced him to confinement 

in the penitentiary. Anderson appealed the circuit court's 

judgment to the Court of Appeals and advanced the same arguments 

there. The Court of Appeals affirmed the judgment of the circuit 

court, Anderson v. Commonwealth, 20 Va. App. 361, 457 S.E.2d 396 

(1995), and we awarded Anderson an appeal. 

 Anderson asserts the same arguments on appeal that he 

advanced below. Initially, we note that Anderson failed to make 

the record of the 1993 criminal proceedings part of this record, 

which is essential to our consideration of his claim of 

collateral estoppel. Rhodes v. Commonwealth, 223 Va. 743, 749, 
292 S.E.2d 373, 376 (1982). Thus, we are unable to consider the 

merits of his assignment of error that "[t]he Commonwealth was 

barred by collateral estoppel from presenting the evidence, which 

was previously suppressed in a criminal trial, in a revocation of 

suspended sentence hearing." 

 Anderson contends that the circuit court erred in admitting 

the evidence that had been suppressed in the 1993 criminal 

proceeding. We disagree. 

 The Fourth Amendment of the United States Constitution 

provides that: 

 The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no warrants shall issue, but upon 

probable cause, supported by oath or affirmation, and 

particularly describing the place to be searched, and 

the persons or things to be seized. 

 The Fourth Amendment does not contain any provision 

expressly prohibiting the use of evidence obtained in violation 

of the amendment. Rather, the exclusionary rule is a judicially 

created remedy designed to deter future unlawful police conduct. 

Elkins v. United States, 364 U.S. 206, 217 (1960). And, as the 

United States Supreme Court observed in United States v. 

Calandra, 414 U.S. 338, 348 (1974): 

 Despite its broad deterrent purpose, the 

exclusionary rule has never been interpreted to 

proscribe the use of illegally seized evidence in all 

proceedings or against all persons. 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. 

Further, the United States Court of Appeals for the Ninth 

Circuit, confronted with the identical issue as that before this 

Court, observed that the exclusionary rule "has never been 
interpreted to proscribe the use of illegally seized evidence in 

all proceedings or against all persons . . . and any extension of 

the rule beyond its traditional applicability in criminal 

proceedings makes sense only if use of the remedy would deter or 

would likely deter police misconduct." United States v. Winsett, 

518 F.2d 51, 53-54 (9th Cir. 1975) (citations omitted). 

 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. And, we observe that the exclusionary rule 

already served its deterrent purpose when the illegally seized 

evidence was excluded in the 1993 criminal proceeding. 

 We also note that most jurisdictions which have considered 

this issue have held that evidence seized in violation of the 

Fourth Amendment is admissible in a probation revocation hearing 

even though that evidence is not admissible in a criminal 

prosecution to determine guilt. See, e.g., State v. Alfaro, 623 

P.2d 8, 9-10 (Ariz. 1980); 

People v. Wilkerson, 541 P.2d 896, 898 (Colo. 1975); Bernhardt v. 

State, 288 So.2d 490, 500 (Fla. 1974); People v. Dowery, 312 

N.E.2d 682, 685-87 (Ill. App. Ct. 1974), aff'd, 340 N.E.2d 529, 

533 (Ill. 1975); Tiryung v. Commonwealth, 717 S.W.2d 503, 504 
(Ky. Ct. App. 1986); State v. Caron, 334 A.2d 495, 499 (Me. 

1975); Stale v. Thorsness, 528 P.2d 692, 695-96 (Mont. 1974); 

State v. Field, 571 A.2d 1276, 1279-80 (N.H. 1990); Commonwealth

v. Davis, 336 A.2d 616, 621-22 (Pa. Super. Ct. 1975); State v. 

Kuhn, 499 P.2d 49, 51-52 (Wash. Ct. App. 1972), aff'd, 503 P.2d 

1061 (Wash. 1972). But see Grimsley v. Dodson, 696 F.2d 303, 

304-05 (4th Cir. 1982); United States v. Workman, 585 F.2d 1205, 

1209-10 (4th Cir. 1978). 

 Accordingly, we will affirm the judgment of the Court of 

Appeals. 

Affirmed.