The Exclusionary Rule and Probation Hearings

North Carolina’s appellate courts have long said that a proceeding to revoke probation is not a criminal prosecution or a formal trial. Instead, probation hearings are generally regarded as informal or summary. State v. Hewett, 270 N.C. 348 (1967). Formal rules of evidence do not apply at violation hearings, meaning hearsay is generally admissible. G.S. 15A-1345(e).

But what about illegally obtained evidence?  In State v. Lombardo, 306 N.C. 594 (1982), our supreme court said that the fruits of an unlawful search can be admitted in a probation violation hearing.

The particular facts of the Lombardo case may have had something to do with its outcome. Officers at Miami International Airport found marijuana in the defendant’s bag just fifteen days after he was placed on probation in North Carolina for . . . selling marijuana. The drug evidence was excluded at Lombardo’s criminal trial on drug possession charges in Florida (the officers lacked a constitutionally sufficient basis to search him), but our appellate courts said it was admissible at his probation violation hearing in North Carolina. The court reasoned that the primary purpose of the exclusionary rule is to deter police misconduct by rendering illegally obtained evidence inadmissible at trial. Unless an officer knows that a person he searches or seizes is on probation, extending the application of the exclusionary rule to probation hearings would add nothing to that deterrent effect. Moreover, the court said, excluding the evidence would “severely damage our probation system” by rewarding defendants like Lombardo “who show a total disregard for the system.” 306 N.C. at 600–01. In so holding, the court expressly overruled State v. McMilliam, 243 N.C. 775 (1956).

A few years later Lombardo’s case came back before the court of appeals. State v. Lombardo, 74 N.C. App. 460 (1985). In that iteration Lombardo maintained that the supreme court had limited its holding in his earlier appeal to situations where officers were unaware of a suspect’s status as a probationer. Ready to assert that the officers at the Miami airport did know he was on probation, Lombardo argued that the drug evidence should be suppressed at his revocation hearing just as it was at his criminal trial. The court of appeals disagreed. The panel acknowledged the logic of the defendant’s argument but concluded that the supreme court “did not expressly qualify its holding to exclude the rule’s application to [probation violation hearings] upon the law enforcement official being unaware of the probationer’s status.” Id. at 463.

Our courts’ position that the exclusionary rule does not apply at revocation hearings puts us in line with most other jurisdictions. The leading case nationwide is Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998), in which the Supreme Court concluded that the exclusionary rule did not bar evidence seized in violation of the Fourth Amendment from use at a parole revocation hearing. After Scott, the federal circuits– including the Fourth Circuit in State v. Armstrong, 187 F.3d 392 (4th Cir. 1999) (overruling United States v. Workman, 585 F.2d 1205 (4th Cir. 1978), in light of Scott)—have fallen into line. A few states hold that the exclusionary rule applies as a matter of state constitutional law, see, e.g., State v. Dodd, 419 So. 2d 333 (Fla. 1982), and other courts have developed special exceptions to the general inapplicability of the rule, such as when the police harass a probationer or obtain evidence in a particularly offensive manner, see People v. Holliday, 743 N.E.2d 587 (Ill. App. 2001) (excluding drug evidence found during an improper search of a probationer’s crotch area).

Even if the exclusionary rule doesn’t apply as a constitutional matter, there is an argument that our statutory exclusionary rule in G.S. 15A-974(2) might operate to exclude evidence “obtained as a result of a substantial violation of the provisions of [Chapter 15A].” That statutory section itself does not spell out the proceedings to which it applies. It’s pretty clear in context, though, that the article in which that law appears (Article 53 of Chapter 15A) is meant to apply to criminal trials—which would not include revocation hearings.

4 thoughts on “The Exclusionary Rule and Probation Hearings”

  1. I was looking foward to a post on this topic. So would evidence found in possession of a defendant based on no PC be admissible in a criminal jury trial if that defendent is on probation?

    • john: I don’t think improper evidence would be admissible in the jury trial just because the defendant happened to be on probation.

      • now what about if the officer pulls a defendants car over for speeding, and that defendant is on probation and during the encounter the officer develops reasonable suspicion to believe that evidence of a crime could be found in the car. could that evidence found based on reasonable suspicion be used in a criminal jury trial? and does NCGS 15A‑1343(B)(14) have any impact? i could not find a case on point.

  2. john: If the probationer was subject to the warrantless search condition in G.S. 15A-1343 (b)(14)–which he would be by default if on probation for an offense that occurred on or after Dec 1, 2009–then I think this would be a permissible search, and the evidence could be used in a criminal trial.


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