COURT OF APPEALS OF VIRGINIA 

 

Present: Judge Benton, Senior Judge Cole and 

 Retired Judge Trabue*

Argued at Richmond, Virginia 

JEFFREY TORRANCE JOHNSON 

 

v. Record No. 2220-93-2 OPINION BY 

 JUDGE KENNETH E. TRABUE 

COMMONWEALTH OF VIRGINIA OCTOBER 17, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 Cheryl Jakim Frydrychowski, Assistant Public 

Defender (David J. Johnson, Public Defender, on 

brief) for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (James S. Gilmore, III, Attorney General, 

on brief), for appellee. 

 Jeffrey Torrance Johnson (Johnson) appeals the revocation of 

probation and a suspended sentence on the ground that the 

evidence used to show violation of his probation was the product 

of an illegal search and seizure under the Fourth Amendment. At 

the time this appeal was argued, no appellate decision in this 

Commonwealth addressed this specific issue. On May 16, 1995, a 

panel of this Court determined that the exclusionary rule does 

not apply in suspended sentence revocation proceedings. See

Anderson v. Commonwealth, 20 Va. App. 361, 457 S.E.2d 396 (1995). 

 We hold that the rationale of Anderson applies equally to a 

revocation of probation and for the reasons set forth below, 

affirm the action of the trial court. 

 

 *Retired Judge Kenneth E. Trabue took part in the 

consideration of this case by designation pursuant to Code 

§ 17-116.01. 
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 In 1991, Johnson was convicted of distribution of cocaine 

and was sentenced to twenty years in the penitentiary with eleven 

years and seven months suspended on the condition of good 

behavior and supervised probation upon release after confinement. 

 While on supervised probation, in March 1993, police arrested 

and charged Johnson with a new offense of possession of cocaine 

with intent to distribute as a result of an investigatory stop, 

search, seizure, and arrest. 

 Richmond police received a call that a man with several guns 

was standing next to a car behind an apartment building in a high 

crime area. Responding to the call, a police officer observed 

Johnson driving quickly from behind the building. The officer 

stopped Johnson and explained that he was investigating a 

dispatch. The officer did not know Johnson, nor did the officer 

know of Johnson's probationary status. Johnson appeared nervous 

during the stop and the officer requested that he get out of the 

car so that the officer could conduct a weapons search. The 

search revealed ten grams of cocaine, $3000 in cash, a pager, and 

"some bags." The officer arrested Johnson and charged him with 

possession of cocaine with intent to distribute. 

 At Johnson's trial on the 1993 offense, the trial court 

sustained a motion to suppress the evidence, finding that the 

arresting officer did not have an "articulable reason" to justify 

the stop. The Commonwealth chose not to go forward with the 

criminal charges and the court then dismissed them. However, the 

Commonwealth did proceed with a show cause hearing on Johnson's 
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alleged violation of probation. In this hearing the trial judge 

admitted the evidence obtained from the illegal stop. The trial 

court found that Johnson had violated probation and revoked five 

years of Johnson's previously suspended sentence. 

 Johnson contends on appeal that the exclusionary rule should 

operate in probation revocation hearings to exclude illegally 

obtained evidence. We disagree. 

 Historically, the purpose of the exclusionary rule was "to 

deter police misconduct." Derr v. Commonwealth, 242 Va. 413, 

422, 410 S.E.2d 662, 667 (1991) (citation omitted). Generally, 

the rule is intended to deter police misconduct by denying 

illegally obtained evidence from being admitted in the 

defendant's criminal trial. In United States v. Calandra, 414 

U.S. 338 (1974), the United States Supreme Court used a balancing 

test to determine whether the exclusionary rule should apply to 

the admission of evidence in grand jury proceedings. Id. at 349. 

 The Court concluded that the potential injury to the grand jury 

system outweighed the slight deterrent effect of using the 

exclusionary rule in federal grand jury proceedings. Id. at 

351-52. 

 We find minimal deterrent value in applying the exclusionary 

rule to revocation hearings. See Payne v. Robinson, 541 A.2d 

504, 507 (Conn.), cert. denied, 488 U.S. 898 (1988). "[T]he 

process of revocation hearings 'should be flexible enough to 

consider evidence . . . that would not be admissible in an 

adversary criminal trial.'" Davis v. Commonwealth, 12 Va. App. 
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81, 84, 402 S.E.2d 684, 686 (1991) (quoting Morrissey v. Brewer, 

408 U.S. 471, 489 (1972)). In revocation hearings, application 

of the exclusionary rule would make the revocation proceedings 

inflexible and punish the court rather than the police. A 

probationer is subject to the court's lawful orders; yet, the 

court, which was not responsible for the illegal search and 

seizure, would be unable to enforce its orders if the 

exclusionary rule applied in revocation hearings. 

 "[P]robation revocation hearings are not a stage in a 

criminal prosecution and therefore a probationer is not entitled 

to the same due process protections afforded a defendant in a 

criminal prosecution." Davis at 84, 402 S.E.2d at 686 (citations 

omitted). For example, in Davis, we held that a trial court, in 

its discretion, may admit hearsay testimony in revocation 

hearings. Id. 

 The majority of other jurisdictions hold that the 

exclusionary rule does not apply to revocation hearings. See

Anderson, 20 Va. App. at 364, 457 S.E.2d at 398; see also U.S. ex 

rel. Lombardino v. Heyd, 318 F. Supp. 648, 650-51 (E.D. La 1970), 

aff'd, 438 F.2d 1027 (5th Cir.), cert. denied, 404 U.S. 880 

(1971); People v. Coleman, 533 P.2d 1024, 1033 (Cal. 1975); 

People v. Atencio, 525 P.2d 461, 463 (Colo. 1974); Brill v. 

State, 32 So. 2d 607, 610 (Fla. 1947); People v. Dowery, 312 

N.E.2d 682, 687 (Ill. App. Ct. 1974), aff'd, 340 N.E.2d 529 (Ill. 

1975); Dulin v. State, 346 N.E.2d 746, 751 (Ind. Ct. App. 1976); 

State v. Caron, 334 A.2d 495, 499-500 (Me. 1975); Lemire v. 
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Bouchard, 304 A.2d 647, 649 (N.H. 1973); Commonwealth v. Davis, 

336 A.2d 616, 622 (Pa. Super. Ct. 1975); State v. Kuhn, 499 P.2d 

49, 51-52 (Wash. Ct. App.), aff'd, 503 P.2d 1061 (Wash. 1972). 

See generally, Philip E. Hassman, Annotation, Admissibility, in 

State Probation Revocation Proceedings, of Evidence Obtained 

Through Illegal Search and Seizure, 77 A.L.R.3d 636, 641-46 

(1977); 21 Am. Jur. 2d Criminal Law § 579 (1981); 16C C.J.S. 

Constitutional Law § 1123 (1985). We believe that the rationale 

of Anderson, in light of the persuasive authority of our sister 

jurisdictions, is applicable here. Accordingly, we hold that the 

exclusionary rule has no application in probation revocation 

hearings. 

 Some jurisdictions have held that due process considerations 

may require suppression of illegally seized evidence in 

revocation hearings where the record supports a finding that 

state actors had a bad faith motive in obtaining the evidence of 

the probation violation. See Anderson, 20 Va. App at 365, 457 

S.E.2d at 398; State v. Proctor, 559 P.2d 1363, 1364 (Wash. Ct. 

App. 1977); People v. Stewart, 610 N.E.2d 197, 204-05 (Ill. App. 

1993). Here, the trial court found, and the record supports, 

that no bad faith motive was involved in this stop of Johnson's 

vehicle. 

 Accordingly, for the reasons stated above, we affirm the 

revocation of Johnson's suspended sentence. 

 Affirmed. 
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Benton, J., dissenting. 

 Although another panel of this Court has decided that 

evidence unlawfully seized from a person by police is admissible 

as substantive evidence in a proceeding brought to revoke that 

person's probation, that decision, in my judgment, is contrary to 

the letter and spirit of Weeks v. United States, 232 U.S. 383 

(1914), and Mapp v. Ohio, 367 U.S. 643 (1961). Indeed, "the 

Supreme Court has never exempted from the operation of the 

exclusionary rule any adjudicative proceeding in which the 

government offers unconstitutionally seized evidence in direct 

support of a charge that may subject the victim of a search to 

imprisonment." United States v. Workman, 585 F.2d 1205, 1211 

(4th Cir. 1978). 

 Moreover, I believe that due process is denied by using 

illegally obtained evidence as basis to impose imprisonment. 

 A probation revocation hearing is 

adjudicative. Its first purpose is to 

determine whether the probationer is guilty 

of violating a provision of the probation 

order. Its second is to decide whether he 

should be continued on probation or be 

imprisoned. Although such a hearing is not a 

stage of a criminal prosecution, it is a 

criminal proceeding that may result in the 

loss of liberty. For this reason the due 

process clause entitles a probationer to 

written notice of his alleged violation; a 

hearing at which the evidence against him 

must be disclosed; the right to present 

witnesses in his own behalf; and, save in 

exceptional circumstances, the right to 

confront and cross-examine adverse witnesses. 

 If a serious question of culpability exists, 

the probationer is constitutionally entitled 

to the assistance of counsel. In 1970 

Congress augmented the constitutional 
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requirements by providing a statutory right 

to counsel at all federal revocation 

hearings. The similarity between many of the 

aspects of a criminal trial and a probation 

revocation proceeding is illustrated by the 

frequent use of the revocation proceeding as 

an alternative to trial on new charges 

against a probationer. It is also 

illustrated by the court's authority to 

modify the probationer's sentence. 

 Consideration of the nature of a probation 

revocation hearing leads to the conclusion 

that the application of the exclusionary rule 

will result in approximately the same 

potential for injury and benefit as its 

application in other criminal adjudicative 

proceedings. The rule's exclusion of some of 

the evidence about the new charges which form 

the basis of the complaint about the 

probationer, the delay incident to 

suppression hearings, and the rule's 

effectiveness in deterring future 

unconstitutional searches are neither 

significantly more nor less than in other 

such adjudicative proceedings. Therefore, 

the weight to be assigned the potential 

advantages and disadvantages of applying the 

rule to probation revocation proceedings 

cannot be ascertained by generalized 

references to the pros and cons of the rule - 

a subject that has been the topic of lively 

debate from the moment of the rule's 

promulgation. 

Workman, 585 F.2d at 1209-10 (citations and footnotes omitted). 

 By failing to apply the exclusionary rule, this Court adopts 

a policy that denigrates judicial and governmental integrity. A 

court proceeding which results in a denial of liberty from 

"evidence secured through . . . a flagrant disregard of the 

procedure [devised to protect constitutional rights] . . . cannot 

be allowed to stand without making the courts themselves 

accomplices in willful disobedience of law." McNabb v. United 
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States, 318 U.S. 332, 345 (1943). The Court overlooks the police 

officer's violation of the constitution simply because the 

officer testified that Johnson was unknown to him when he stopped 

Johnson. "'If the Government becomes a lawbreaker, it breeds 

contempt for law; it invites every man to become a law unto 

himself; it invites anarchy.'" Elkins v. United States, 364 U.S. 

206, 223 (1960) (citation omitted). 

 For these reasons, I would hold that the evidence that was 

unlawfully seized in violation of the Fourth Amendment should 

have been excluded at the revocation proceeding.