Commonwealth v. Kates

Concurring and Dissenting Opinion by

Mr. Justice Roberts:

I concur in the result reached by the majority in Commonwealth v. McClellan and Allen v. Reed. However, I am compelled to dissent from the majority’s holding in Commonwealth v. Kates that the exclusionary rule has no application in probation revocation and subsequent sentencing proceedings. In my view, the record in Kates must be remanded to the trial court for a new revocation and sentencing hearing, to be conducted without the admission of the illegally obtained confession. Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 (1966).

*123 As the majority candidly concedes, appellant Kates’ probation was revoked and a three year sentence imposed, “[p]rimarily on the basis of an incriminating statement [that appellant had killed one Frank Jordan] attributed to the appellant.” Subsequent to these proceedings, however, appellant’s statement was suppressed by the trial court in a later prosecution for the murder of Jordan.

It is by now abundantly clear that a statement obtained in violation of Miranda, supra, may not be used “affirmatively” by the prosecution in its case in chief. Harris v. New York, 401 U.S. 222, 224 , 91 S. Ct. 643, 645 (1971). Albeit appellant Kates was not, at the time the illegally obtained statement was introduced, on trial for murder, the adverse effect of the revocation and sentencing hearing produced the same result— appellant was remanded to jail to serve a term of imprisonment. “In practice, probation revocation is frequently used as an alternative to prosecution for serious offenses. If the probationer is clearly convictable for the new offense, there is little need both to prosecute him for it and revoke his probation. Often the choice between prosecution and revocation is a fortuitous one.” E. Dawson, Sentencing, The Decision as to Type, Length, and Conditions of Sentence, 153 (1969) (emphasis added). Accordingly, “. . . the fact that an independent prosecution and revocation under an old conviction are often interchangeable for a probationer suggests that abrogation of the exclusionary rule for probation revocation would seriously undermine the rule’s effect as a deterrent.” United States v. Hill, 447 F. 2d 817, 820 (7th Cir. 1971) (Fairchild, J., dissenting).

The necessity for the exclusionary rule, especially on the facts of this case, need not be rationalized solely in terms of its usefulness as a deterrent to unlawful police conduct. “The philosophy that courts must not *124 sanction violations of constitutional rights is: as evident in the opinion which promulgated the exclusionary rule as is the more pragmatic proposition that the rule will deter the police from such activities. This ‘imperative of judicial integrity/ as it is termed in Elkins v. United States (1960), 364 U.S. 206 , 80 S. Ct. 1437 , 4 L. Ed. 2d 1669 , though not as clearly and consistently enunciated in support of the exclusionary rule as the theory of its expediency as a deterrent, continues to be recognized as one of its foundations. ‘[A] ruling admitting evidence in a criminal trial * * * has the necessary effect of legitimizing the conduct which produced the evidence.’ ” [Terry v. Ohio, 392 U.S. 1, 13 , 88 S. Ct. 1868, 1875 (1968)] 1 Id. (footnotes omitted).

Begardless of the purpose attributed to the exclusionary rule, under either theory, it (the rule) should apply with equal vitality to a probation revocation proceeding, such as here, where the ultimate aim of the authorities is to return the probationer to custody. Cf. Commonwealth v. Bruno, 435 Pa. 200, 223 , 255 A. 2d 519, 528 (1969) (Bobebts, J., dissenting). The incentive for illegal police conduct in the circumstances of this case is all too clear. While many courts are finding it necessary to extend the use of the exclusionary *125 rule to a wider myriad of circumstances, 2 this Court today, ignoring absolute constitutional mandates to the contrary, carves out an unlimited exception which impugnes the integrity of the judicial process. The majority has erred, in my view, by treating Miranda, supra, as a mere rule of procedure. The exclusionary rule with which we are here concerned is not that. Rather, it is an integral part of the Fifth Amendment right against self-incrimination, devised not under the aegis of the Supreme Court’s supervisory power, but rather as an interpretation of the Constitution itself. Miranda, supra at 490 , 86 S. Ct. at 1636 , Verdugo v. United States, 402 F. 2d 599 (9th Cir. 1968); Michaud v. Oklahoma, 505 P. 2d 1399 (Okl. Cr. 1973).

1 cannot condone the use of a confession obtained by the police in violation of the law, even for the purpose of determining whether probation should be revoked. As the Supreme Court stated in Wong Sun v. United States, 371 U.S. 471, 485 , 83 S. Ct. 407, 416 (1963), constitutionally, illegally obtained evidence “. . . shall not be used at all.” (Quoting from Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S. Ct. 182, 183 (1920)). See Michaud, supra.

Not only was it error, in my opinion, for the court to have considered the illegally obtained confession in *126 deciding to revoke appellant Kates’ probation, bnt it was also error for the court to have considered it in determining appellant’s sentence. The law is well settled that the “. . . sentencing procedure . . . [does] not satisfy due process requirements when a confession, constitutionally inadmissible in evidence, . . . [is] part of the data used by the court in determining the severity of the sentence.” United States ex rel. Brown v. Rundle, 417 F. 2d 282, 284-85 ( 3d Cir. 1969). See also Verdugo, supra; United States ex rel. Rivers v. Myers, 384 F. 2d 737 (3d Cir. 1967). “[W]henever it is held that the deterrent value of the exclusionary rule justifies the release of a guilty man, courts necessarily also surrender the opportunity of imposing sentence upon him —the loss of this opportunity is not regarded as too great a price for insuring observance of . . . [constitutional] restraints by law enforcement officers.” Verdugo, supra at 611-12 .

“But it is not deterrence alone that warrants the exclusion of evidence illegally obtained—it is ‘the imperative of judicial integrity.’ [Elkins v. United States, 364 U.S. 206, at 222 , 80 S. Ct. 1437 ]. The exclusion of an illegally procured confession and of any testimony obtained in its wake deprives the Government of nothing to which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government’s illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law.” Harrison v. United States, 392 U.S. 219 , 224 n. 10, 88 S. Ct. 2008 , 2011 n. 10 (1968).

See, e.g., One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693 , 85 S. Ct. 1246 (1965) (exclusionary rule applicable to forfeiture proceedings, where the “object, like a criminal proceeding, is to penalize for the commission of an offense against the law.”) ; United States ex rel. Brown v. Rundle, 417 F. 2d 282 (3d Cir. 1969) (exclusionary rule applicable to sentencing proceedings) ; Pizarello v. United States, 408 F. 2d 579 (2d Cir. 1969) (exclusionary rule applies to tax assessment eases) ; Powell v. Zuckert, 366 F. 2d 634 (D.C. Cir. 1966) (exclusionary rule applies to discharge i>roceedings against a government employee) ; Rogers v. United States, 97 F. 2d 691 (1st Cir. 1938) (exclusionary rule applies to actions for the recovery of customs duties).