Richardson v. State

PARKS, Judge, with whom BRETT, Judge,

joins, dissenting:

The fifty-four (54) words which comprise the Fourth Amendment to the United States Constitution were intended to secure to the American people the right to be free

from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, made against them.

Weeks v. United States, 232 U.S. 383, 390 , 34 S.Ct. 341, 343 , 58 L.Ed. 652 (1914). Both the Fourth and Fifth Amendments were intended to perpetuate those “principles of humanity and civil liberty which had been secured in the mother country only after years of struggle, so as to implant them in our institutions in the fullness of their integrity, free from the possibilities of *607 future legislative change.” Id. at 391 , 34 S.Ct. at 344 . Acknowledging this struggle for the most basic of freedoms, the Supreme Court held that the violation of the right to be free from unreasonable searches and seizures “should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.” Id. at 392 , 34 S.Ct. at 344 (emphasis added). The Court recognized that if evidence “can ... be seized and held and used ... against a citizen accused of an offense, the protection of the 4th Amendment ... is of no value, and ... might as well be stricken from the Constitution.” Id. at 393 , 34 S.Ct. at 344 . Thus was born the exclusionary rule.

Despite the rule’s auspicious inception as the guardian of the Fourth Amendment, the Supreme Court has since held that it never intended to imply that “the exclusionary rule is a necessary corollary of the Fourth Amendment.” United States v. Leon, 468 U.S. 897, 905 , 104 S.Ct. 3405, 3411 , 82 L.Ed.2d 677 (1984). For, the Supreme Court has said, the Fourth Amendment itself “ ‘has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.’ ” Id. at 906 , 104 S.Ct. at 1311 , quoting Stone v. Powell, 428 U.S. 465, 486 , 96 S.Ct. 3037, 3048 , 49 L.Ed.2d 1067 (1976). Accordingly, the rule operates as “ ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than as a personal constitutional right of the party aggrieved.’ ” Leon, supra, 468 U.S. at 906 , 104 S.Ct. at 3412 , quoting United States v. Calandra, 414 U.S. 338, 348 , 94 S.Ct. 613, 620 , 38 L.Ed.2d 561 (1974).

I do not agree. Implicit in the right to be free from unreasonable searches and seizures — found in both the Fourth Amendment and art. II, § 30 of the Oklahoma Constitution — is the guarantee that evidence obtained in violation of those rights will not be used “in direct support of a charge that may subject the victim of [such a] search to imprisonment.” United States v. Workman, 585 F.2d 1205, 1211 (4th Cir.1978). See also Calandra, 414 U.S. at 348 , 94 S.Ct. at 620 . While a revocation proceeding is not a stage of a criminal prosecution, “it is a criminal proceeding that may result in the loss of liberty.” Workman, supra, 585 F.2d at 1209 (emphasis added). See also People ex. rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76 , 397 N.E.2d 354, 356 , 421 N.Y.S.2d 842, 844 (1979).

The majority justifies its holding that the exclusionary rule is inapplicable to revocation proceedings, by engaging in a “balancing test” and determining that the potential detriment to revocation proceedings outweighs the potential benefit — in the form of deterrence — to be gained as a result of the rule’s application. See Calandra, supra, 414 U.S. at 349-52 , 94 S.Ct. at 620-22 . This balancing test, adopted by most of the circuit courts and a significant number of state courts which have dealt with this issue, focuses more on the incidental deterrence value which application of the rule may have in a particular proceeding, than on the basis of the rule itself: to safeguard the Constitutional right to be free from unreasonable searches and seizures.

I continue to adhere to the view that the exclusion of evidence obtained through an unreasonable search or seizure is itself a fundamental right under both art. II, § 30 of the Oklahoma Constitution and the Fourth Amendment. Excluding unlawfully seized evidence not only deters future Fourth Amendment violations. More importantly, it provides a means of acknowledging and upholding the Constitutional rights of those who were in fact victims of the unlawful search or seizure. But see Calandra, supra, 414 U.S. at 354 , 94 S.Ct. at 623 . In addition, application of the exclusionary rule “preserve[s] judicial integrity by precluding courts from basing convictions on illegally obtained evidence.” Workman, supra, 585 F.2d at 1209 . As Justice Brandéis noted in his dissenting opinion in Olmstead v. United States, 277 U.S. 438, 485 , 48 S.Ct. 564, 575 , 72 L.Ed. 944 (1928), “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its exam- *608 pie_ If the Government becomes, a lawbreaker, it breeds contempt for law[.]”

Without a means of enforcement, the guaranty against unreasonable searches and seizures found in both the Fourth Amendment, and art. II, § 30, of the Oklahoma Constitution, is but an empty promise. And, the only way to enforce these guarantees is for courts to refuse to admit evidence obtained in violation of them. I continue to adhere to the view, once espoused by the United States Supreme Court and subsequently adopted by this Court, that evidence obtained in violation of the Fourth Amendment “shall not be used at all." Michaud v. State, 505 P.2d 1399, 1402 (Okl.Cr.1973), quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S.Ct. 182, 183 , 64 L.Ed. 319 (1920). See also Chambers v. State, 649 P.2d 795, 797 (Okl.Cr.1982). Accordingly, I must respectfully dissent from the majority’s view that evidence obtained in violation of a probationer’s Fourth Amendment rights is admissible against him in a revocation hearing.