Petition for Writ of Certiorari — Florida v. Pina

~ (N iQ fi Suoreme Court

55-2065 t FiLen

if JUN 18 1998

» JOSEPH F. SPANIOL, JR,

CASE WO. ig tome

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

STATE OF FLORIDA,

Petitioner,

Vv.

RAMON R. PINA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA,

FOURTH DISTRICT

JIM SMITH

Attorney General

JOY B. SHEARER

Assistant Attorney General

111 Georgia Avenue, Room 204

West Palm Beach, FL 33401

(305) 837-5062

Counsel of Record for Petitioner

\

i

QUESTION PRESENTED

WHETHER A PROBATIONER MAY

INVOKE THE EXCLUSIONARY RULE

IN A PROBATION REVOCATION

PROCEEDING TO BAR RELEVANT

EVIDENCE FROM BEING ADMITTED

ON THE GROUND THAT IT WAS

SEIZED IN VIOLATION OF THE

FOURTH AMENDMENT?

ii

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

GROUNDS UPON WHICH JURIS-

DICTION IS INVOKED

CONSTITUTIONAL AND

STATUTORY PROVISIONS

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE WRIT

CONCLUSION

14

iii

TABLE OF AUTHORITIES

PAGE

Florida v. Casal, 462 U.S. 637

(1983) 8

Gagnon v. Scarpelli, \

411 U.S. 778 (1983) 9,11

Grubbs v. State, 373 So.2d 905

(Fla. 1979) 6

Morrissey v. Brewer,

408 U.S. 471 (1972) 9,10

Pina v. State, 473 So.2d 736

(4th DCA Fla. 1985) l

I. N. S. v. Lopez-Mendoza,

U.S. .

104 Ss. Ct. 3479 (1984) 13

State v. Cross, 11 FLW 193

(Fla. May 1, 1986) 6

State v. Dodd, 419 So.2d 333

(Fla. 1982) 6

United States v. Bazzano,

712 F.2d 826

(3rd Cir. 1983),

cert. denied,

465 U.S. 1078 (1984) ll

United States v. Brown,

488 F.2d 94

(5th Cir. 1973) ll

iv

TABLE OF AUTHORITIES

Continued

PAGE

United States v. California,

414 U.S. 338 (1974) 14

United States v. Farmer,

512 F.2d 160

(6th Cir.), cert. denied,

423 U.S. 987 (1975) ll

United States v. Frederickson,

581 F.2d 711

(8th Cir. 1978) ll

United States v. Janis,

428 U.S. 433 (1976) 14

United States v. Leon,

U.S. .

I04 Ss. Ct. 3405 (1984) F¥eVo an

United States ex rel.

Lombardino v. Heyd,

318 F. Supp. 648

(E.D. La. 1970),

affirmed 438 F.2d 1027

(5th Cir. 1971) 13

United States v. Winsett,

518 F.2d 5l

(9th Cir. 1975) ll

United States v. Workman,

585 F.2d 1205

(4th Cir. 1978) 12

Vv

TABLE OF AUTHORITIES

Continued

Article I, Section 12,

Florida Constitution

Title 28 U.S.C. §1257(3)

1

OPINIONS BELOW

The decision of the Supreme Court

of the State of Florida was rendered

on May 1, 1986. It is not yet

reported, but it is reproduced in the

State's appendix (A 14-16). The

opinion of the intermediate appellate

court, the Fourth District Court of

Appeal, was rendered on June 12, 1985.

It is reported as Pina v. State,

473 So.2d 736 (4th DCA Fla. 1985)

(A 12-13). The trial court denied the

motion to suppress on May 25, 1984,

in an unreported order which is set

forth in the appendix (A 10-11).

GROUNDS UPON WHICH

JURISDICTION IS INVOKED

The opinion of the Supreme Court

of Florida was rendered on May 1, 1986.

2

The jurisdiction of this Court is

timely invoked pursuant to the pro-

visions of Title 28 U.S.C. §1257(3).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The Fourth Amendment to the United

States Constitution provides, in

pertinent part:

The right of the people to

be secure in their persons,

houses, papers and effects,

against unreasonable

searches and seizures shall

not be violated .

Article I, Section 12, of the

Florida Constitution as amended

effective January 4, 1983, provides:

SECTION 12. Searches

and seizures.--The right

of the people to be secure

in their persons, houses,

papers and effects against

unreasonable searches and

seizures, and against the

unreasonable interception

|

of private communications by

any means, shall not be

violated. No warrant shall

be issued except upon probable

cause, supported by affidavit,

particularly describing the

place or places to be searched,

the person or persons, thing

or things to be seized, the

communication to be inter-

cepted, and the nature of

evidence to be obtained.

This right shall be construed

in conformity with the 4th

Amendment to the United States

Constitution, as interpreted

by the United States Supreme

Court. Articles or information

obtained in violation of this

right shall not be admissible

in evidence if such articles

or information would be in-

admissible under decisions

of the United States Supreme

Court construing the 4th

Amendment to the United

States Constitution.

(Emphasis added)

STATEMENT OF THE CASE

The Respondent, Ramon R. Pina,

was placed on probation in November,

1983, following the entry of guilty

a ee

4

pleas to two counts each of burglary ;

and theft. In January, 1984, he was |

arrested. The Respondent was charged

with violating his two terms of

probation by being in possession of

cocaine on January 26, 1984, and he

was also charged with the substantive

offense of trafficking in cocaine on

that date.

Through counsel, the Respondent

filed a motion to suppress the cocaine

found in a search of his luggage at a

train station (A 1-19). The trial

court ruled that it would not enter-

tain the motion in the probation

revocation proceedings, being of the

opinion that the evidence would be

admissible despite any illegality

(A 10-11), in view of the amendment

to the Florida Constitution requiring

5

that the Florida exclusionary rule

applies only when the Fourth Amendment's

exclusionary rule would. In the

substantive case, the trial court

denied the motion to suppress.

On appeal, the Fourth District

Court of Appeal of Florida reversed,

finding the motion to suppress should

have been granted. Concerning whether

the ruling was applicable to the

probation revocation hearing, the

court certified the following question

to the Supreme Court of Florida as

one of great public importance:

Under the 1983 amendment to

article 1, section 12 of the

Florida Constitution, does

the exclusionary rule apply

in probation revocation

hearings?

(A 12-13). The Florida Supreme Court

answered the question in the

ee

6

affirmative, thereby approving the

decision of the Fourth District. The

court cited its opinion in State v.

Cross, 11 FLW 193 (Fla. May 1, 1986),

decided the same day as the instant

+ Cross, the

case, as controlling.

Florida Supreme Court ruled that since

this Court has never decided whether

the exclusionary rule applies to

probation revocation proceedings, it

would continue to adhere to its prior

case law finding the rule applicable,

State v. Dodd, 419 So.2d 333

(Fla. 1982); Grubbs v. State,

373 So.2d 905 (Fla. 1979), despite the

fact that these cases were decided

prior to the 1983 state constitutional

amendment.

loross is unreported; it is set

forth in full in the appendix (A 17-26).

7

REASONS FOR GRANTING

THE WRIT

This Court, in United States v.

Leon, wom. - , LOA 8. Ce. 3405

(1984), has unequivocally held that

the exclusionary rule is not constitu-

tionally required by the Fourth Amend-

ment, but rather it is a judicial

remedy designed to curtail police mis-

conduct. Application of the exclu-

sionary rule is determined by weighing

the costs and benefits of its use in

a given situation.

Although urged to engage in

such a cost/benefit analysis by the

State, the Florida Supreme Court

declined to determine whether, under

the Fourth Amendment, the state courts

should apply the exclusionary rule

in probation revocation proceedings.

8

This decision is directly contrary to

the 1983 amendment to Article I,

Section 12, of the Florida Constitution,

which directs that only evidence inad-

missible under the Fourth Amendment,

as construed by this Court, is inad-

missible in judicial proceedings in

Florida. As noted by Chief Justice

Burger, concurring in Florida v. Casal,

462 U.S. 637, 638 (1983), "that section

ensures that the Florida courts will

no longer be able to rely on the state

Constitution to suppress evidence that

would be admissible under the decisions

of the Supreme Court of the United

States."

While this Court has never

specifically held the exclusionary

rule inapplicable to probation

revocation proceedings, it has held

Pa

Se Fae a RRL RALBIIES S28.

9

a probationer in a probation revocation

proceeding is not entitled to the full

panoply of rights guaranteed a

defendant in a criminal trial.

Morrissey v. Brewer, 408 U.S. 471

(1972); Gagnon v. Scarpelli,

411 U.S. 778 (1983). Considering the

present issue in light of the weighing

process directed by United States v.

Leon, supra, the State submits the

deterrence rationale underlying the

exclusionary rule is adequately served

by excluding any illegally-seized

evidence from the substantive criminal

prosecution, while permitting its use

in the probation revocation proceeding.

This approach fairly balances the

rights of probationers and society's

interest in justice. It provides that

no one will not have evidence seized

10

in contravention of the Fourth Amend-

ment used against him in a substantive

criminal trial, while at the same time

ensuring that a probationer who has

been given by judicial grace an

opportunity to live at liberty, cannot

continue on probation if he flouts

the law.

The Florida Supreme Court, by

declining to apply Fourth Amendment

analysis in its disposition of the

instant case, has decided a substantial

federal question which has not yet

been resolved by this Court. The

result reached by the Florida Supreme

Court--the exclusion of illegally-

seized evidence in a probation

revocation proceeding--is incorrect

in light of the principles discussed |

in Morrissey v. Brewer,

ll

Gagnon v. Scarpelli and United States

v. Leon, supra. Therefore, this case

should be accepted for review.

Moreover, although the majority

of federal courts which have considered

the issue have ruled the exclusionary

rule inapplicable to probation revoca-

tion hearings, at least one court has

concluded the rule does apply. See

United States v. Bazzano, 712 F.2d 826

(3rd Cir. 1983), cert. denied,

465 U.S. 1078 (1984); United States v.

Frederickson, 581 F.2d 711 (8th Cir.

1978); United States v. Winsett,

518 F.2d 51 (9th Cir. 1975);

United States v. Farmer, 512 F.2d 160

(6th Cir.), cert. denied, 423 U.S. 987

(1975); United States v. Brown,

488 F.2d 94 (5th Cir. 1973); but see

12

United States v. Workman, 585 F.2d 1205

(4th Cir. 1978).

Thus, the Florida Supreme Court

has decided a federal question in a

manner which conflicts with the way a

majority of the Circuit Courts of

Appeal have ruled on the issue.

The federal question presented in

this case is an important and

substantial issue. Its resolution

by this Court will settle a question

on which the state and federal courts

are divided. A decision by this

Court will control all future proba-

tion revocation proceedings in which

a probationer, charged with violating

the terms of his probation, contends

that evidence relevant to proving

the charged violation was illegally

13

seized and so inadmissible. It is

the State's position that judges, both

federal and state, who are charged

with the responsibility of granting

and/or revoking probation, are

entitled to be fully aware of the

circumstances of any violation.

Double application of the exclusionary

rule to both the substantive offense

and a probation revocation proceeding

undermines the effectiveness of

probation. United States ex rel.

Lombardino v. Heyd, 318 F. Supp. 648

(E.D. La. 1970), affirmed 438 F.2d 1027

(Sth Cir. 1971).

This Court has, in past cases,

held the exclusionary rule does not

apply in all judicial proceedings.

I. N. S. v. Lopez-Mendoza, U.S. ,

104 S. Ct. 3479 (1984) [civil

14

deportation proceedings]; United

States v. Janis, 428 U.S. 433 (1976)

[federal civil tax assessment

proceedings]; United States v.

California, 414 U.S. 338 (1974)

[grand jury proceedings]. The issue

presented in this case is equally as

important as in the foregoing cases,

for it will have far-reaching effect.

The State urges this Court to grant

certiorari review.

CONCLUSION

The Petitioner has sought to

present to this Court a substantial

basis upon which to conclude that the

applicability vel non of the

exclusionary rule to probation

revocation proceedings is an issue

worthy of being addressed by the

PETROS ORAM SRR ETAL ROR RE a 7 NMR 8 SA

15

United States Supreme Court. There

is a solid jurisdictional basis

predicated upon (1) the fact that the

Florida Supreme Court decided a

substantial federal question not

previously determined by this Court;

and (2) a conflict between the opinion

under review and the majority of the

federal courts of appeal. On this

basis, the Petitioner submits that

the instant Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

JIM SMITH

Attorney General

JOY B. SHEARER

Assistant Attorney General

111 Georgia Avenue, Room 204

West Palm Beach, FL 33401

(305) 837-5062

Counsel of Record for Petitioner

APPENDIX

A-1

IN THE CIRCUIT COURT OF THE

SEVENTEENTH JUDICIAL CIRCUIT

IN AND FOR BROWARD COUNTY,

FLORIDA

CASE NO.: 84-962CF and all

violations of

probation

JUDGE: MARK SPEISER

STATE OF FLORIDA,

Plaintiff,

vs.

RAMON RICARDO PINA,

Defendant.

MOTION TO SUPPRESS

COMES NOW the Defendant, RAMON

RICARDO PINA, by and through his

undersigned attorney and moves this

Honorable Court to suppress the

evidence in the above-styled cause

and would state:

A-2

FACTS

On January 26, 1984, RAMON

RICARDO PINA was arrested at the

train station in Fort Lauderdale.

The Defendant allegedly was possess-

ing cocaine in the approximate amount

of ONE HUNDRED AND TEN GRAMS (110).

The arrest that occurred at the train

station was allegedly as a result of

a consensual search based upon an

initial stop by Detectives Green,

Nutt and Gaffney of the Broward

Sheriff's Office on a drug courier

profile.

The Defendant was approached by

Detectives Green and Nutt and told

that they were police officers

attempting to stem the tide of drug

traffic in the South Florida area.

After exchange of certain information

A-3

and identification, Detective Nutt

asked the Defendant whether they could

look in his bags. The Defendant

will indicate that only after a

threat was made to obtain drug

sniffing dogs and a refusal to allow

him to leave the area under his own

power, did he succumb to the request

of the police officers.

Ultimately a search of the

Defendant's possessions was done.

The search requested for was termed

a "hand check." The Detectives

opened the Defendant's bags, finding

two tennis cans that were apparently

sealed. After shaking the two (2)

tennis cans they went further by un-

screwing the bottom portion of the

cans and locating a white powdery

substance. The Defendant was

ieee aaa |

A-4

arrested and charged with the offense

of trafficking in cocaine.

1. The Defendant did not in

any legal standard, consensually

agree to allow the police officers

requesting the consent to search his

bags. This consensual search must

exist in order for the Court to find

that the search of the Defendant's

belongings was permissible under the

law. See Florida v. Mark Royer,

75 L.Ed. 2nd 229, decided March 23,

1983.

2. The explanation to the

Defendant by the police officers

that should he choose not to co-

operate with them, that a drug

sniffing dog would be obtained in

order to determine whether there was

grounds to prepare and get granted a

A-5

search warrant wherein probable

cause was required, unlawfully tainted

the momentary encounter that the

Detectives were making. This

momentary encounter when caused to

be less than consensual and less

than momentary was obviated by the

necessities of the police officers

to "threaten" the Defendant into

submitting to their desires. See

United States v. Raymond J. Place,

77 L.Ed. 2nd 110, decided June 20,

1983.

3. The Detective requested that

the law enforcement officers be

allowed to make what was termed a

"hand check." This “hand check"

which was ultimately succumbed to,

was defined by the police officer

in his deposition at page 19, line l,

A-6

"hand check, open the bag and look

inside, see what's there, close up

the bag." This initial explanation

was followed by a further description

of what a “hand check" was supposed

to be in sentences that followed in

the deposition. However, it should

be noted that what this "hand check"

was suppose to be was never explained

to the Defendant, only the term

"hand check."' The Defendant's belief

that the officers wanted to look into

his bag and nothing more was obviously

violated by the ultimate search that

occurred. This search that occurred

was in direct conflict with the

belief that the officers were “hand

checking" the items. See Horvitz v.

State, 4th DCA 433 So.2d 545.

A-7

4. It was contemplated by Agent

Joseph Nutt that if the Defendant was

objecting to the search and explain-

ing that harassment was occurring

that the officer would have let him

alone. And let him leave. See

page 9 of deposition, line 20 and

succeeding lines. This was also

confirmed by Detective Richard

Green's deposition when he indicated

that he told the Defendant that he

"had a right to refuse and he should

stop yelling and being upset because

he could leave any time that he

wanted."" See page 18, line 5 and

succeeding sentences on deposition.

Obviously, if it was necessary to

discuss these points with the

Defendant, it was clear that the

A-8

Defendant did not want to be where

he was and that any type of search

would have been tainted at that point.

5. The Defendant seeks to

suppress the seizure of cocaine that

was made without a search warrant as

a result of an unlawful and illegal

seizure. Unlawful and illegal because

it was done without consent.

6. Other grounds to be argued

ore tenus.

WHEREFORE, the Defendant, RAMON

RICARDO PINA, by and through his

undersigned attorney, moves this

Honorable Court to suppress the

cocaine in the above-styled cause.

I HEREBY CERTIFY that a true

and correct copy of the foregoing

has been hand delivered to:

A-9

Assistant State Attorney, Janice Law,

Broward County Courthouse, 201 S.E.

Sixth Street, Fort Lauderdale,

Florida 33301, on the 17th day of

May, 1984.

DELL & SCHAEFER, P.A.

Attorneys for Defendant

500 Center Court Building

2450 Hollywood Boulevard

Hollywood, Florida 33020

Phone: 920-7932

BY: fs/ Dennis L. Schaefer

A-10

THE COURT: No. What I'm going

to do, I'm going to rule that Lavensolo

(sic) provides, with respect to

motions to suppress, they are in-

applicable with respect to probation

revocation hearings that take place

after the effective date of the

amendment to the Florida Constitution.

The amendment to the Florida

Constitution was January 4, 1983.

The warrant for violation of probation

was dated February 17, 1984, and the

- not only is the warrant dated after

the effective date of the amendment

to the Florida Constitution, but also

the act that constitutes the basis

for violating his probation took

place after the Florida Constitution

was amended.

The act allegedly took place

A-11

January 26, 1984. The probation

violation warrant was dated

February 17, 1984. So I'm going to

rule it's my opinion that the

controlling date is the date that

the probation revocation was filed.

MR. SCHAEFER: Okay. My objection

is noted for the record.

THE COURT: I'm going to rule

the motion to suppress is inapplicable

to the probation violation, so the

motion to suppress we are embarking

on, then, is only applicable to the

substantive case, 84-962.

A-12

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

FOURTH DISTRICT JANUARY TERM 1985

RAMON R. PINA,

Appellant,

v.

STATE OF FLORIDA,

~~ e e

Appellee.

Opinion filed June 12,

1985

Consolidated appeals

from the Circuit

Court for Broward

County; Mark A.

Speiser, Judge.

Richard L. Jorandby,

Public Defender, and

Thomas F. Ball, III,

CASE NOS.

84-1487,

64-1488 and

84-1489

NOT FINAL

UNTIL TIME

EXPIRES TO

FILE REHEARING

PETITION AND,

IF FILED,

DISPOSED OF.

Assistant Public Defender,

West Palm Beach, for appellant.

Jim Smith, Attorney General,

Tallahassee, and Joan Fowler

Rossin, Assistant Attorney

General, West Palm Beach,

for appellee.

PER CURIAM.

A-13

We reverse the appellant's

convictions and sentences on the

authority of Horvitz v. State,

433 So.2d 545 (Fla. 4th DCA 1983)

and Tamer v. State, 463 So.2d 1236

(Fla. 4th DCA 1985). The trial court

erred in failing to grant the motion

to suppress. We also certify the

following question posed in Tamer

as one of great public importance:

Under the 1983 amendment to

article 1, section 12 of

the Florida Constitution,

does the exclusionary rule

apply in probation

revocation hearings?

Accordingly, this cause is

reversed and remanded for further

proceedings in accord herewith.

ANSTEAD, C.J., HURLEY, J., and

SALMON, MICHAEL H., Associate Judge,

concur.

A-14

SUPREME COURT OF FLORIDA

No. 67,280

tan ie staat at

STATE OF FLORIDA, Petitioner,

vs.

RAMON PINA, Respondent.

Ail RING ON aD ct tea AN lhe ncelincite

[May 1, 1986]

SHAW, J.

We grant the petition for

review in this case under article V,

section 3(b)(4) of the Florida

Constitution. The district court

certified the following question to

be of great public importance:

Under the 1983 amendment to

article I, section 12 of

the Florida Constitution,

does the exclusionary

rule apply in probation

revocation hearings?

A-15

Pina v. State, 473 So.2d 736

(Fla. 2d DCA 1985).

We answered the certified

question herein in the affirmative

in State v. Cross, No. 67,137

(Fla. May 1, 1986), and approve the

decision below on the authority of

Cross.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON,

McDONALD, EHRLICH and BARKETT, JJ.,

Concur

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED,

DETERMINED.

Application for Review of the Decision

of the District Court of Appeal -

Certified Great Public Importance

Fourth District - Case Nos.

84-1487, 84-1488 & 84-1489

Jim Smith, Attorney General and Joan

Fowler Rossin, Assistant Attorney

General, West Falm Beach, Florida,

for Petitioner

A-16

Richard L. Jorandby, Public Defender

and Thomas F. Ball, III, Assistant

Public Defender, Fifteenth Judicial

Circuit, West Palm Beach, Florida,

for Respondent

A-17

STATE OF FLORIDA, Petitioner, vs.

KEVIN RICHARD CROSS, Respondent.

Supreme Court of Florida, Case No.

67,137. May 1, 1986. Application

for Review of the Decision of the

District Court of Appeal--Certified

Great Public Importance. Second

District--Case No. 84-2688. Jim

Smith, Attorney General and Katherine

V. Blanco, Assistant ‘Attorney General,

Tampa, Florida, for Petitioner.

James Marion Moorman, Public Defender

and Joel E. Grigsby, Assistant Public

Defender, Tenth Judicial Circuit,

Bartow, Florida, for Respondent.

(PER CURIAM.) We have before us by

petition for review Cross v. State,

469 So.2d 226 (Fla. 2d DCA 1985),

wherein the district court certified

a question of great public importance.

We have jurisdiction under article V,

section 3(b)(4), Florida Constitution.

The facts surrounding respondent

Cross's revocation of probation are

recounted in the district court's

opinion. It is sufficient for the

purpose of addressing the certified

A-18

question to note that the district

court reversed the trial court's

order, finding erroneous its con-

clusion that the nonconsensual

warrantless search of Cross's home

came within the emergency doctrine

exception to the warrant requirement.

The district court, having concluded

that Cross's probation was revoked

based on illegally obtained evidence,

then addressed the inadmissibility

of such evidence in a probation

revocation proceeding and certified

the following question:

WHETHER AMENDED ARTICLE 1,

SECTION 12, OF THE FLORIDA

CONSTITUTION PROHIBITS

ILLEGALLY OBTAINED

ARTICLES AND INFORMATION

FROM BEING ADMITTED IN

EVIDENCE IN PROBATION

REVOCATION PROCEEDINGS?

Id. at 228.

A-19

We agree with the district

court's conclusion that the evidence

in this case was illegally seized.

The state does not challenge this

holding, but argues that amended

article 1, section 12, Florida

Constitution, effective January 4,

1983, renders the exclusionary rule

no longer applicable in probation

revocation proceedings in Florida.

Prior to the amendment, we held that

the exclusionary rule did apply in

probation revocation proceedings.

State v. Dodd, 419 So.2d 333

(Fla. 1982); Grubbs v. State,

373 So.2d 905 (Fla. 1979). The

amended section, with new language

underlined, reads as follows:

SECTION 12. Searches

and seizures.--The right

A-20

of the people to be

secure in their persons,

houses, papers and

effects against unreasonable

searches and seizures, and

against the unreasonable

interception of private

communications by any

means, shall not be violated.

No warrant shall be issued

except upon probable cause,

supported by affidavit,

particularly describing

the place or places to be

searched, the person or

persons, thing or things

to be seized, the communica-

tion to be intercepted, and

the nature of evidence to

be obtained. This right

shall be construed in

conformity with the 4th

Amendment to the United

States Constitution, as

interpreted by the United

States Supreme Court.

Articles or information

obtained in violation of

this right shall not be

admissible in evidence

if such articles or informa-

tion wou e inadmissible

under decisions of the

Unite tates Supreme Court

construing the 4th Amendment

to the Sette States Constitu-

tion.

A-21

The state urges that the rationale

of our previous cases, this Court's

conclusion that the Florida

constitutional proscription against

unreasonable searches and seizures is

more restrictive than its federal

counterpart, no longer has any

constitutional basis under the

amendment. The state concedes that

no United States Supreme Court

decision specifically holds the

exclusionary rule inapplicable to

probation revocation proceedings.

It points out, however, that a

probationer in a probation revocation

proceeding is not entitled to the

full panoply of rights guaranteed

to a defendant in a criminal

proceeding. Gagnon v. Scarpelli,

411 U.S. 778 (1973). The state

A-22

argues that as the exclusionary rule

is not constitutionally required, but

rather is a judicial remedy designed

to curtail police misconduct, e.g.,

United States v. Leon, 104 S. Ct. 3430

(1984), its remedy is adequately

served by excluding illegally seized

evidence from substantive criminal

prosecutions, while permitting its

use in probation revocation hearings.

The state suggests that we should

hold the exclusionary rule inappli-

cable in these latter proceedings

in conformity with the majority of

federal circuits. See United States

v. Bazzano, 712 F.2d 826 (3d Cir.

1983), cert. denied, 465 U.S. 1078

(1984); United States v. Frederickson,

581 F.2d 711 (8th Cir. 1978); United

States v. Winsett, 518 F.2d 5l

A-23

(9th Cir. 1975); United States v.

Farmer, 512 F.2d 160 (6th Cir.),

cert. denied, 423 U.S. 987 (1975);

United States v. Brown, 488 F.2d 94

(5th Cir. 1973); but see United

States v. Workman, 585 F.2d 1205

(4th Cir. 1978). The state also

contends that this Court implicitly

recognized that under the amendment

the exclusionary rule does not apply

to probation revocation proceedings.

State v. Lavazzoli, 434 So.2d 321

(Fla. 1983).

Regarding Lavazzoli, respondent

correctly points out that it was

decided on the narrow question of

whether the amendment would apply

to that pending case. Lavazzoli

does not compel the result for which

the state argues here.

A-24

Respondent argues that our

holding in Dodd should control unless

the amendment affirmatively negates

Dodd, and that the amendment refers

not to a majority of federal law, but

rather only to United States Supreme

Court decisions as controlling.

Respondent cites Lavazzoli:

When faced with constitu-

tional amendments not

clearly expressing an

intent to the contrary,

this Court has repeatedly

refused to construe the

amendment to affect

detrimentally the

substantive rights of

persons arising under

the prior law.

Id. at 324.

The United States Supreme Court

has not ruled on the issue presently

before us. Therefore, it is not

necessary to interpret the amendment

to article I, section 12.

A-25

We approve the decision of the

district court on the authority of

Dodd which is still the controlling

state law.

It is so ordered. (BOYD, C.J.,

and ADKINS, McDONALD, EHRLICH, SHAW

and BARKETT, JJ., Concur. OVERTON,

J., Concurs specially with an opinion. )

(OVERTON, J., specially concurring. )

I fully concur. In answering the

certified question in this cause, it

should be understood that this opinion

has not changed the principle we

established in Grubbs v. State,

373 So.2d 905 (Fla. 1979), that a

probationer's constitutional rights

are more limited than an ordinary

citizen's. In Grubbs, in considering

the reasonableness of a search of a

A-26

probationer, this Court expressly

held that the status of a probationer

is different from that of an ordinary

person; that a probationer is subject

to certain restrictions on his living

in open society; that, to protect the

public, a probation supervisor must

be allowed the necessary authority to

supervise the probationer, including

the search of a probationer's person

or residence without warrant; and

that such a search is a reasonable

search under the state and federal

constitutions.