Petition — Florida v. Cross

oa, .

85 -s108

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

STATE OF FLORIDA,

Petitioner,

v.

KEVIN R. CROSS

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA,

SECOND DISTRICT

JIM SMITH

Attorney General

KATHERINE V. BLANCO

PEGGY A. QUINCE

Assistant Attorneys General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

Counsel for Petitioner

i

QUESTION PRESENTED

WHETHER A PROBATIONER MAY

INVOKE THE EXCLUSIONARY RULE

IN A PROBATION REVOCATION

PROCEEDING TO ~ 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

APPENDIX:

Motion to Suppress Evidence

Order Denying Defendant's

Motion to Suppress

Opinion of 2d DCA

14

Al-6

A6- (a)

A7-19

Opinion of Florida Supreme Court A20-29

iii

TABLE OF AUTHORITIES

Gagnon v. Scarpelli, \

(411 U.S. 778 (1973)

Grubbs v. State, 373 So.2d 905

(Fla. 1979)

Morrissey v. Brewer,

408 U.S. 471 (1972)

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

U.S. P

T0604 s. Ct. 3479 (1984)

State v. Cross, 11 FLW 193

(Fla. May 1, 1986)

State v. Dodd, 419 So.2d 333

(Fla. 1982)

United States v. Bazzano,

712 F.2d 826

(3rd Cir. 1983),

cert. denied,

465 U.S. 1078 (1984)

United States v. Brown,

488 F.2d 94

(5th Cir. 1973)

11

11

iv

‘TABLE OF AUTHORITIES

Continued

PAGE

United States v. Calandra,

414 U.S. 338 (1974) 14

United States v. Farmer,

512 F.2d 160

(6th Cir.), cert. denied,

423 U.S. 987 (1975) 11

United States v. Frederickson,

581 F.2d 711 ,

(8th Cir. 1978) 11

United States v. Janis,

428 U.S. 433 (1976) 14

United States v. Leon,

468 U.S. _,.82 L.Ed.2d 677

104 S. CE. 3405 (1984) 7,9-11

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 51

(9th Cir. 1975) il

United States v.- Workman,

585 F.2d 1205

(4th Cir. 1978) 12

Vv

TABLE OF AUTHORITIES

Continued

PAGE

ticle I, Section 12,

Florida Constitution i

Title 28 U.S.C. §1257(3) 2

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 20-29). The

opinion of the intermediate appellate

court, the Second District Court of

Appeal, was rendered on May 24, 1985.

It is reported as Cross v. State,

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

(A 7-19). The trial court denied the

motion to suppress on December 13, 1984

in an unreported order which is set

forth in the appendix (A-6(a)

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. unr le

searches seizures shall

not be violated...

Article I, Section 12, of the

Florida Constitution as amended

effective January 4, 1983, provides:

nf me 12. Searches

se - ~7ihe &r t

of the Gaeta , peopl gps e

in their persons, houses,

papers and effects against

unreasonable searches and

seizures, and against the

unreasonable interception

3

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 th: to be seized, the

communication to be inter-

epted, and the nature of

dence to be obtained.

This right shall be construed

“ “ [ted States

_as i eted

Unit > es rene

Rt clas cr interaat on

obtained in violation of this

right shall not: be admissible

such articles

——

rt_constry 7

States Constitution.

(Emphasis added)

STATEMENT OF THE CASE

The Respondent, Kevin R. Cross,

was placed on one year probation on

July 28, 1983, following the entry of

4

a guilty plea to the charge of Resist-

ing an Officer without violence. On

July 27, 1984, Respondent was charged

with violating the terms of his pro-

bation by virtue of his arrest on July

16, 1984 for the offense of Grand

Theft.

Through counsel, Respondent filed

a Motion to Suppress evidence, a .38

caliber coit firearm seized from the

Respondent's residence and statements

made by Respondent about the Siveern

to Sheriff's personnel after the seizure.

(Al-6 ). The trial court denied Res-

pondent's Motion to Suppress and revoked

his probation.

On direct appeal, the Second

District Court reversed, finding the

Motion to Suppress should have been

5

granted; however, concerning whether

the ruling was applicable to the pro-

bation revocation hearing, the court

certified the following question to

the Supreme Court of Florida as one

of great public importance:

WHETHER AMENDED ARTICLE

I, SECTION 12, OF THE

FLORIDA CONSTITUTION

PROHIBITS ILLEGALLY

OBTAINED ARTICLES AND

INFORMATION FROM BEING

ADMITTED IN EVIDENCE

IN PROBATION REVOCATION

PROCEEDINGS? (A 18-19)

Cross v. State, 469 So.2d 226, 228

(Fla. 2d DCA 1985).

In State v. Cross, 11 F.L.W. 193,

the Florida Supreme Court answered the

question in the affirmative, thereby

approving the decision of the Second

District Court of Appeal.

6

The 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 amend-

ment.

State v. Cross, So.2d 1l FLW

3 a., Opinion Filed May 1,

1986) | :

(A 20-29)

7

REASONS FOR GRANTING

THE WRIT

The Fourth Amendment “has never

been interpreted to proscribe the

introduction of illegally seized

evidence in all proceedings or against

all persons." Stone v. Powell, 428

U.S. 465, 49 L.Ed.2d 1067, 96 S.Ct.

3037 (1976) Application of the ex-

clusionary rule is determined by weigh-

ing the costs and benefits of its use

in a given situation. In utilizing

the balancing approach approved in

United States v. Leon, 468 U.S. __,

1045 S.Ct. 3405, 82 L.Ed.2d 677 (1984),

the court must determine whether the

purposes of he exclusionary rule will

be furthered; i.e. whether the likeli-

hood of deterring police misconduct

8

is sufficient to justify the substantial

social costs attendant with the loss

of probative evidence.

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.

The 1983 amendment to Article I, Section

12, of the Florida Constitution, provides

that only evidence inadmissible under the

Fourth Amendment, as construed by this

Court, is inadmissible in judicial pro-

ceedings in Florida. Although this

Court has never specifically held the

9

exclusionary rule inapplicable to

probation revocation proceedings, it

has held that a probationer in a pro-

bation 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, 33 L.Ed 2d 484, 92 S.Ct 2593 (1972);

Gagnon v. Scarpelli, 411 U.S. 778, 36

L.Ed. 2d 656, 93 S.Ct 1756 (1973).

In accordance with the balancing ap-

proach directed by Leon, the State

submits the deterrence rationale of

the exclusionary rule is adequately

served by excluding any illegally-

seized evidence from the substantive

criminal prosecution, while permitting

its use in the probation revoc&tion

proceeding. This approach provides

that no one will 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. 3

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,

Wh ke Wi Te LS

YE Fy ON ee ae ae ae Se a ee

11

Gagnon v. Scarpelli, and United States

v. Leon, supra. Therefore, this case

should be accepted for review.

Moreover, although the majority

of fedenal 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

(5th Cir. 1971).

This Court has previously held the

exclusionary rule does not apply in all

judicial proceedings. I.N.S. v. Lopez-

Mendoza, 468 U.S. _,82 L.Ed.2d 778

14

104 S. Ct. 3479 (1984) {civil deporta-

tion proceedings]; United States v.

Janis, 428 U.S: 433; 49 L.Ed.2d 1046,

96 S.cr. 3021 (1976) [use of evidence

illegally seized by state officials

permitted in federal civil tax assess-

ment proceedings]; United States v.

Calandra, 414 U.S. 338 (1974) {grand

jury proceedings]. The issue pre-

sented in this case is equally as im-

portant as in the foregoing cases, for

it will have far-reaching effect. The

State urges this Court to grant cer-

tiorari review.

CONCLUSION

Petitioner has sought to present

to this Court a substantial basis upon

which to conclude that the applicabi-

lity vel non of the exclusionary rule

15

to probation revocation proceedings

is an issue worthy of being addressed

by the United States Supreme Court.

Based upon (1) the fact that the

Florida Supreme Court decided a sub-

stantial federal question not pre-

viously determined by this Court; and

(2) a conflict between the opinion

under review and the majority of the

federal courts of appeal, the

Petitioner respectfully submits that

the instant Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

KATHERINE V. BLANCO

Assistant Attorney General

16

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building ~—

Tampa, Florida 33602

(813) 272-2670

COUNSEL OF RECORD FOR PETITIONER

oe a ae Pe Lage 2.

fa Ve ee

17

,

CERTIFICATE OF SERVICE

I, PEGGY A. QUINCE, Counsel for

Petitioner, and a member of the Bar of

the United States Supreme Court, here-

by certify that on the, aay of

June, 1986, I served three copies of the

Petition for Writ of Certiorari on

Joel E. Grigsby, Aseistant Public Defender

Hall of Justice Building, 455 North

Broadway, P. 0. Box 1640, Bartow, Florida

33830-3798, by a duly addressed enve-

lope with postage prepaid.

Assistant Attorney General

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A-1

IN THE CIRCUIT COURT,

POLK COUNTY, FLORIDA

STATE OF FLORIDA

)

3 Appellant,

v. ) CASE NO.

) CF83-0641 (VOP)

KEVIN R. CROSS,. )

Appellee. ;

MOTION TO SUPPRESS EVIDENCE

Defendant, through counsel and pur-

suant to Florida Rules of Criminal Pro-

cedure 3.190(i), moves this Honorable

Court to suppress certain evidence in

this cause.

EVIDENCE TO BE SUPPRESSED:

1. .38 caliber colt firearm seized

from Defendant's residence on Redgrave

Road, Loughman, Florida.

2. Statements by Defendant to

Sheriff personnel about said firearm

after its seizure.

A- 2

GROUNDS FOR SUPPRESSION:

1. The evidence was illegally

seized without a warrant, in violation

of the Fourth and Fourteenth Amendments

to the United States Constitution and

Article I, Sections 9 and 12 of the

Constitution of the State of Florida.

2. The evidence was obtained only

as a result of an illegal search with-

out a warrant, in violation of the

Fourth and Fourteenth Amendments to the

United States Constitution and Article

I, Sections 9 and 12 of the Constitution

of the State of Florida.

3. The evidence was obtained only

as a result of an illegal entry of

defendant's residence by law enforcement

A-3.

in violation of the Fourth and Fourteenth

Amendments to the United States Consti-

tution and Article I, Sections 9 and 12

of the Constitution of the State of Florida.

4. The evidence was obtained in

violation of Defendant's right to privacy

guaranteed by Article I, Section 23, of

the Constitution of the State of Florida.

5. The evidence is the "tainted

fruit of the poisonous tree," having

been obtained only as a result of illegal

law enforcement activity, to-wit: the

statements were obtained only after and

as a direct result of the illegal seizure

of said firearm.

FACTUAL BASIS:

“Ij coThe ‘Polk County Sheriff's De-

partment investigated a ‘suspicious shoot-

ing incident involving Defendant on

March 24, 1984.

A- 4

2. Deputy Jimmie Carter inter-

viewed Defendant and the shooting victim

at the Heart of Florida Hospital where

both gave consistent statements that the

shooting was entirely accidental.

3. Deputy Carter proceeded to De-

fzndant's residence on Redgrave Road,

Loughman, where the shooting was said to

have happened.

4. When Deputy Carter arrived,

unidentified: persons were inside Defen-

dant's residence, cleaning blood in the

north bedroom.

5. Deputy Carter walked inside

the residence without consent, license

or authorization.

6. In the north bedroom, Deputy

Carter saw said firearm.

A- 5

7. Deputy Carter seized said

firearm.

8. Deputy Carter did not have

evidhnes at the time of the seizure

to give probable cause that any crime

had occurred or that the firearm was

evidence of any crime.

9. On a date after the firearm's

seizure, Investigator Billie Whatley

questioned Defendant about the firearm

found and seized at his residence and

Defendant answered Whatley's questions.

WHEREFORE, Defendant respectfully

requests that this Honorable Court

enter an Order suppressing in this cause

the evidence described above.

A- 6

I HEREBY CERTIFY that a true and

correct copy of the foregoing has been

furnished by hand delivery to the State

Attorney's Office mail box in the Hall

of Justice, Bartow, Florida, this the

18th_ day of October, 1984.

JERRY HILL

Public Defender

Hall of Justice Building

P. 0. Box 1640

Bartow, Florida 33830

BY: {ef LAWRENCE D. SHEARER

Assistant Public Defender

A-6(a)

IN THE CIRCULT COURT OF THE TENTH

JUDICIAL CIRCUIT OF THE STATE OF

FLORIDA IN AND FOR POLK COUNTY

STATE OF FLORIDA

v.

KEVIN R. CORSS

CASE NO.

CF83-0641

ee Nee ee ee ee ee

ORDER DENYING DEFENDANT'S

MOTION TO SUPPRESS

THIS CAUSE coming out to be heard

before me upon the Defendant's Motion

to Suppress and the Court being fully

advised in the premises, it is thereupon

and accordingly |

CONSIDERED, ORDERED AND ADJUDGED that:

the Defendant's Motion to Suppress is

hereby DENIED.

' DONE AND ORDERED at Bartwo, Polk County,

Florida, this 13th day of December, 1984.

CIRCUIT JUDGE

A-7

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

SECOND DISTRICT

KEVIN RICHARD CROSS,

Appellant,

Vv.

STATE OF FLORIDA,

Appellee.

84-2688

ae a ae ae ae ee ee et ee”

Opinion filed May 24, 1985 NOT FINAL

UNTIL TIME

Appeal from the CircuitCourt er te TO -_

for Polk County; Oliver L. . Satie an AND,

Green, Jr., Judge. IF FILED

James Marion Moorman, Public DISPOSED OF.

Defender, and Joel E. Grigsby,

Assistant Public Defender,

Bartow, for Appellant.

Jim Smith, Attorney General,

Tallahassee, and Katherine v.

Blanco, Assistant agg ec |

General, Tampa, for Appellee.

SCHEB, Judge.

A-8

The trial court placed defendant,

Kevin Richard Cross, on probation for

one year on July 28, 1983. The day

before his probation was set to expire,

the court issued a warrant charging him

with violating the terms of his probation

by committing grand theft of a firearn.

The trial court revoked defendant's

probation and sentenced him to six

months ia jail. Defendant contends

that the firearm was illegally seized

from his residence during a warrantless

search. Thus, he argues that it and

his subsequent statement to a law

enforcement officer about the firearm

were inadmissible in evidence at his

revocation hearing. We agree.

A-9

At the hearing it was disclosed

that on March 24, 1984, Deputy Jimmie

Carter of the Polk County Sheriff's

Department investigated a report of a

shooting. She interviewed the defen-

dant and the victim, Cynthia Lanning,

at the Heart of Florida Hospital in

Haines City. They explained to the

deputy that when defendant picked up

a handgun at his residence, it acciden-

tally discharged wounding Lanning. At

that point Deputy Carter told defendant

that she was going to his home to in-

vestigate the "crime scene." The

deputy said that defendant seemed ex-

tremely upset but did not tell her

that she could not do so.

A- 10

4 Deputy Carter did not secure a

warrant. Rather, she traveled directly

to defendant's home. Entering the

bedroom, she found a handgun on the

bed and observed what appeared to be

a bullet hole in the wall. She seized

the gun, which appeared to her to

have been fired recently. The sheriff's

department retained the gun in its

custody.

In April Susan Baker reported to

the Sheriff that a handgun was missing

from her home in Polk County. While

checking out her complaint, Sheriff's

Investigator Whatley compared serial

numbers and concluded that he firearm

seized by Deputy Carter was Baker's

A- 11

nandeuti: Thereafter, Whately contacted

the defendant, who admitted having the

gun in his home; however, he denied

stealing it.

The trial court denied defendant's

motion to suppress the handgun seized

by Deputy Carter and the statement

he made concerning it to Investigator

Whatley. The trial judge concluded

that while the defendant did not consent

to have his residence searched, the

warrantless search and seizure came

within the emergency doctrine excep-

tion to the warrant requirement. We

think the court erred.

Warrantless searches are per

se unreasonable under the Fourth

Amendment to the United States Cons-

titution, subject to a few specifically

A-12

established and well-delineated ex-

ceptions. Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.

2d 567 (1967). One such exception is

the emergency doctrine. This exception

had its origin in the dictum in Johnson

v. United States, 333 U.S. 10, 68 S.Ct.

367, 92 L.Ed. 436 (1948), where the

Supreme Court stated that exceptional

circumstances could dispense with the

need for a warrant.

This emergency or exigency rule

first recieved recognation in Florida in

Webster v. State, 201 So.2d 789 (Fla.

4th DCA 1967), and has been applied under

various circumstances. See, e.g.,

Guin v. City of Riviera Beach, 338

So.2d 604 (Fla. 4th DCA 1980) (reasonable

A-13

belief that a crime was in progress

held sufficient to justify a warrant-

less entry); Grant v. State, 374 So.2d

630 (Fla. 3d DCA 1979) (officers re-

sponding to reported shooting held to

have properly entered apartment where

they discovered certain evidence) ;

Long v. State, 310 So.2d 35 (Fla. 2d

DCA 1975) (preservation of human life

justified an emergency entry of a home

and admissibility of contraband obtained).

To invoke the emergency rule to

search a person's home, the exigencies

of the situation must be so compelling

as to make a warrantless search objectively

reasonable. See Mincey v. Arizona, 437

A-14

U.S. 385,°98 S.Ct. 2408, 57 L.Ed.2d

290 (1978). Here, the information pos-

sessed by Deputy Carter indicated an

accidental shooting. While she may

have entertained some suspicions, there

were no exigencies or emergency cir-

cumstances to justify a warrantless

search of defendant's residence.

Accordingly, we hold that the handgun

seized by Deputy Carter and defendant's

statement to Investigator Whately were

illegally obtained evidence.

Having concluded that defendant's

probation was revoked on basis of

illegally obtained evidence, we now

turn to the question of whether such

evidence was inadmissible in a probation

revocation proceeding. This brings us

A-15

to a discussion of the applicability

of the exclusionary rule. This rule

commands that illegally obtained evidence

be excluded form criminal proceedings.

In State v. Dodd, 419 So.2d 333

(Fla. 1982), the Florida Supreme Court

held that the exclusionary rule applied

to probation revocation proceedings.

The court based its decision on Article

I, section 12, of the Florida Consti-

tution, which formerly prohibited any ©

illegally obtained evidence from being

admitted in court therby giving con-

stitutional status to the exclusionary

rule. However, effective Janurary 4,

1983, that section was amended. Now,

protection against unreasonable searches

and seizures under the Florida Consti-

tution is construed in conformity with

A-16

the Fourth Amendment to the United

States Constitution as interpreted by

the United States Supreme Court. As

amended, our state constitution now

provides that “articles or information

obtained in violation of this right

shall not be admissible in evidence if

such articles or information would be

inadmissible under ssetssdas of the

United States Supreme Court construing

the 4th Amendment ot the United States

Constitution.” Art. I, §12, Fla.Const.

The United States Supreme Court has

not directly held the exclusionary rule

is inapplicable to probation revoction

proceedings. It has, however, ntted

that a probationer is not entitled

to the full panoply of procedural rights

A-17

guaranteed a defendant who is prosecuted

for a crime. Gagnon v. Scarpelli, 411

U.S. 778, 93. S.Ct. 1756,.36 L.Ed.2d -

656 (1973). See also Marrisey v. Brewer,

408 U.S. 471, 92 S.Ct. 2593,.33 L.Ed.2d

484 (1972). There is a division of

opinion among the lower federal courts

as to whether the exclusionary rule

applies in probation revocation pro-

ceedings. See, e.g., Annot., 30 A.L.R.

Fed. 824 (1976); N.Cohen and J. Gobert,

The Law of Probation and Parole, §9.13

‘1983).

In recent rulings the Supreme Court

has emphasized that the exclusionary

rule is not constitutionally required

and has tended to balance the social

benefits of excluding evidence against

A-18

the costs to society resulting from

such exclusion: beeseum:. United.

States v. Leon, 468 U.S. 677, 104

S.Ct. 3405, 82 L.Ed.2d.677. (1984);

United State v. Janis, 428 U.S. 433,

96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976);

United States v. Calandra, 414 U.S. 338,

94 §.Ct...613, 38 L.Ed.2d 561 (1974).

We think. resolution of whether the ex-

clusionary.rule.is applicable to probation

revocation proceedings is a matter of

great public importance which should

be addressed by the Florida Supreme

Compt 5

Accordingly, we certify to the

supreme court the following question:

WHETHER AMENDED ARTICLE I,

SECTION i2, OF THE FLORIDA

CONSTITUTION PROHIBITS

ILLEGALLY OBTAINED ARTICLES

A-19

AND INFORMATION FROM BEING

ADMITTED IN EVIDENCE IN

PROBATION,REVOCATION PRO-

CEEDINGS?

Reversed and sentence vacated.

RYDER, C. J., and HALL, J., Concur.

I. Im Croteau v. State, 334 So.2d

577 (Fla. 1976), the court stated

that the exclusionary rule does not apply

in revocation proceedings; however,

in State v. Dodd, the court, in foot-

note two, pointed out that it was un-

necessary to decide that question in

Croteau, and that the statement may

be regarded as dicta, since the case

dealt with prosecution of a new offense

rather than revocation of probation.

2. This issue has also been certified

to the supreme court in Tamer v. State,

463 So.2d 1236 (Fla. 4th DCA 1985).

‘A-20

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 vs 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- 21

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.

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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 lunguage

underlined; reads as follows:

SECTION 12. Searches

and seizures.--The right

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of the le to be

secure 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 ramet

except upon pr 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

oS ene This right

8 construed in

eae ee th

ates on, as

ted

States eme .

Articles or ormation

obtained in violation of

this right shall not be

admissible in evidence

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,

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

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argues that as the exclusionary rule

is not constitutionsliy required, but

rather is a judicial remedy designed

to curtail police misconduct, e.g.,

United States v. Leon, 104 8. 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.

Tre state. suggests that we should

nold 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 51

A-26

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

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

cert. denied, 423 U.S. 987 (19745);

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 eimplicitly

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.

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Respondent argues that our hold-

ing 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 sub-

tantive rights of ‘persons

— er the prior

aw.

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.

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We approve the decision of the

district court on the authority of

Dodd which is still the controlling

state law.

It ds 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 he

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- 29

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.