# State v. Burkholder

> Ohio Supreme Court · July 25, 1984 · 12 Ohio St. 3d 205

URL: https://www.frixlaw.com/law-library/cases/6758530

## Case

- **Full name:** The State of Ohio v. Burkholder
- **Court:** Ohio Supreme Court
- **Decided:** July 25, 1984
- **Citations:** 12 Ohio St. 3d 205; 12 Ohio B. 269; 466 N.E.2d 176; 1984 Ohio LEXIS 1200
- **Precedential status:** Published
- **Opinion:** Dissent by Holmes
- **Judges:** Brown, Celebrezze, Holmes, Locher, Sweeney
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6758530

## Opinion text

Holmes, J.,
dissenting. While the defendant is entitled to certain procedural due process rights at a probation revocation hearing, in my view he is not entitled to the benefits of the exclusionary rule. Therefore, I dissent.
The revocation of probation is not recognized as a part of a criminal prosecution. Thus, the alleged violator is not entitled to all of the constitutional guarantees available to one who stands charged with a criminal offense. Gagnon v. Scarpelli (1973), 411 U.S. 778 [ 71 O.O.2d 279 ]; Morrissey v. Brewer (1972), 408 U.S. 471 . Based on this premise, the vast majority of reported cases have held the Fourth Amendment exclusionary rule inapplicable to probation revocation proceedings. See Sperling v. Fitzpatrick (C.A.2, 1970), 426 F. 2d 1161 (parole revocation); United States v. Johnson (C.A.5, 1972), 455 F. 2d 932 , certiorari denied (1972), 409 U.S. 856 ; United States v. Wiygul (C.A.5, 1978), 578 F. 2d 577 ; United States v. Brown (C.A.5, 1973), 488 F. 2d 94 (alternative holding); United States v. Farmer (C.A.6, 1975), 512 F. 2d 160 , certiorari denied (1975), 423 U.S. 987 ; United States v. Hill (C.A.7, 1971), 447 F. 2d 817 ; United States v. Frederickson (C.A.8, 1978), 581 F. 2d 711 ; United States v. Vandemark (C.A.9, 1975), 522 F. 2d 1019 ; United States v. Winsett (C.A.9, 1975), 518 F. 2d 51 ; Connelly v. Parkinson (D.S.D. 1975), 405 F. Supp. 811 (alternative holding); United States v. Delago (S.D.N.Y. 1974), 397 F. Supp. 708 ; United States v. Rushlow (S.D.Cal. 1974), 385 F. Supp. 795 , affirmed (C.A.9, 1976), 541 F. 2d 287 , certiorari denied (1976), 429 U.S. 984 ; United States v. Allen (N.D.Cal. 1972), 349 F. Supp. 749 ; United States, ex rel. Lombardino, v. Heyd (E.D.La. 1970), 318 F. Supp. 648 , affirmed (C.A.5, 1971), 438 F. 2d 1027 , certiorari denied (1971), 404 U.S. 880 ; State v. Sears (Alaska 1976), 553 P. 2d 907 ; State v. Alfaro (1980), 127 Ariz. 578 , 623 P. 2d 8 ; Harris v. State (Ark. App. 1980), 606 S.W. 2d 93 ; People v. Coleman (1975), 13 Cal. 3d 867 , 533 P. 2d 1024 ; *209 People v. Ressin (Colo. 1980), 620 P. 2d 717 ; People v. Wilkerson (Colo. 1975), 541 P. 2d 896 ; People v. Atencio (1974), 186 Colo. 76 , 525 P. 2d 461 ; Bernhardt v. State (Fla. 1974), 288 So. 2d 490 ; Brill v. State (1947), 159 Fla. 682 , 32 So. 2d 607 ; People v. Dowery (1974), 20 Ill. App. 3d 738 , 312 N.E. 2d 682 , affirmed (1975), 62 Ill. 2d 200 , 340 N.E. 2d 529 ; People v. Swanks (1975), 34 Ill. App. 3d 794 , 339 N.E. 2d 469 ; Dulin v. State (Ind. App. 1976), 346 N.E. 2d 746 ; State v. Davis (La. 1979), 375 So. 2d 69 ; State v. Caron (Me. 1975), 334 A. 2d 495 ; State v. Thorsness (1974), 165 Mont. 321 , 528 P. 2d 692 ; State v. White (1965), 264 N.C. 600 , 142 S.E. 2d 153 ; Lemire v. Bouchard (1973), 113 N.H. 174 , 304 A. 2d 647 ; State v. Ray (Ore. App. 1979), 598 P. 2d 1293 ; Commonwealth v. Davis (1975), 234 Pa. Super. 31 , 336 A. 2d 616 ; State v. Spratt (R.I. 1978), 386 A. 2d 1094 ; State v. Knowles (1970), 25 Utah 2d 13 , 474 P. 2d 727 ; State v. Kuhn (1972), 7 Wash. App. 190 , 499 P. 2d 49 , affirmed (1972), 81 Wash. 2d 648 , 503 P. 2d 1061 .
The majority herein fails to recognize the nature of a probation revocation hearing. The important question is whether the probationer is satisfactorily pursuing his rehabilitation and, if not, what appropriate action should be taken by the judicial officer. The revocation process should be flexible to allow a court to consider evidence that would not be admissible in an adversary criminal proceeding. This is the exact reason why the court is not bound by the Rules of Evidence in a probation revocation proceeding. In other words, the trial judge should be given discretion to review all of the evidence in order to determine if the individual violated the terms of his probation. This standard, which is utilized by most jurisdictions, acts to better serve the judiciary and society as the trial judge can make a “true” evaluation of the probationer’s actions.
I agree with the majority that the exclusionary rule was invoked primarily to deter police from making unreasonable searches and seizures. However, assuming that the exclusionary rule has a deterrent effect on the proscribed police conduct, I believe sufficient deterrence flows when the evidence is made unavailable to the prosecution in its case in chief. This is never more apparent than in the present case. As a result of the search of appellee’s home, one hundred and eighty-three pieces of stolen property were recovered. This property came from at least seven different burglaries. Appellee was subsequently indicted on seven counts of receiving stolen property. However, the trial court dismissed the case on the basis of an improper search warrant. I fail to see where any additional deterrent effect will be gained by invoking the exclusionary rule to a proceeding after a dismissal of all criminal charges.
Finally, I note that appellee was afforded all of the due process guarantees as required by Gagnon, supra, and Morrissey, supra. Therefore, the trial judge acted lawfully in revoking appellee’s probation. Accordingly, I would reverse the judgment of the court of appeals which rules that the trial court committed error in this matter.
Locher, J., concurs in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6758530. Public record. Not legal advice.