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State v. Walker

Superior Court of Delaware

February 21, 2018

KEVIN WALKER, Defendant.

          Submitted: January 5, 2018

          In and For Kent County

          Gregory R. Babowal, Esquire, DEPARTMENT OF JUSTICE, Dover, Delaware, for the State.

          Stephanie H. Blaisdell, Esquire, OFFICE OF THE PUBLIC DEFENDER, Dover, Delaware, for the Defendant.


          Clark, J.

          Prior to Defendant Kevin Walker's (hereinafter "Mr. Walker's") criminal trial, the Superior Court granted Mr. Walker's motion to suppress evidence seized from an illegal search. That Order applied to his criminal trial. The search at issue was based on an administrative warrant authorized because of Mr. Walker's status as a probationer and initiated by Mr. Walker's probation officer. Mr. Walker now moves the Court to exclude the same evidence from his violation of probation hearing.

         The Delaware Supreme Court has not addressed whether the exclusionary rule applies to violation of probation hearings. Furthermore, no Delaware court has issued a written decision regarding its applicability in the context of when a probation officer executes an improperly issued administrative warrant. For the reasons outlined herein, the exclusionary rule does not apply in violation of probation proceedings, even when the illegal search was a result of an administrative warrant issued and executed by probation officials. Accordingly, Mr. Walker's motion to suppress is DENIED.

         I. Factual and Procedural Background

         Mr. Walker began probation on May 10, 2017 as a result of a felony driving under the influence conviction. On June 5, 2017, Delaware probation officers conducted a pre-approved administrative search of Mr. Walker's residence, based upon a tip by a past proven reliable informant that Mr. Walker possessed heroin that he planned to distribute. The administrative warrant was authorized pursuant to 11 Del C. § 4321(d), which permits probation officers to conduct searches of individuals on probation provided the search is authorized "in accordance with Department procedures." The Department of Correction promulgated Probation and Parole Procedure 7.19 that lists requirements for issuing an administrative warrant to search the property of probationers.[1]

         As a result of this search, probation officers discovered 252 bags of heroin in Mr. Walker's bedroom along with other drug paraphernalia. The officers also recovered a locked safe and took it to Delaware State Police Troop 3. After forcing the safe open, they discovered a loaded handgun, five doses of a narcotic pain killer, and approximately five grams of marijuana. When law enforcement processed Mr. Walker at Sussex Correctional Institution, they also discovered a log of heroin concealed in his rectum.

         After a suppression hearing, a separate judicial officer of this Court held that the probation officers' reliance on a tip involving Mr. Walker did not comply with Probation and Parole Procedure 7.19. Accordingly, the Court granted Mr. Walker's motion to the suppress the seized evidence from his upcoming criminal trial. The Court held that the tip did not substantially comply with that procedure because the probation officers failed to follow their agency's requirement to corroborate the tip and to investigate the informant's motives. Because substantial compliance with probation procedures is required under 11 Del. C. § 4321, that Court held that allowing the State to introduce evidence at trial would render regulations promulgated under it meaningless.

         Though the suppression order resulted in the dismissal of the underlying criminal action, the State seeks separately to prove that Mr. Walker's criminal conduct violated conditions of his probation. Mr. Walker argues that the finding in the criminal proceeding collaterally applies to his probation revocation hearing because it is based on the same conduct. He accordingly moves this Court to exclude the illegally obtained evidence from consideration at his violation of probation hearing.

         For purposes of judicial economy, the Court heard argument regarding the suppression issue, reserved decision, and then conducted a contested violation of probation hearing. At the conclusion of the hearing, Mr. Walker acknowledged that he would appropriately be held in violation if the evidence is not suppressed. The State likewise agreed that without the evidence that is the subject of the motion, it did not meet its burden of proving a violation of probation at the hearing.

          II. Discussion

         The Delaware Supreme Court has declined to decide whether the exclusionary rule applies to violation of probation hearings.[2] However, the Superior Court has twice held that the exclusionary rule does not apply to suppress illegally obtained evidence in violation of probation hearings.[3]

         In State v. Kinard, the Superior Court held as a matter of first written impression, that evidence suppressed from use at trial should not be suppressed from use at a violation of probation hearing.[4] The Kinard court based its holding primarily on Pennsylvania Board of Probation & Parole v. Scott, [5] where the United States Supreme Court held that the exclusionary rule did not apply in Pennsylvania parole revocation hearings.[6] In Kinard, the court applied the balancing test articulated by the United States Supreme Court to our State's probation revocation proceedings.[7]In doing so, it recognized the differences between parole hearings (at issue in Scott) and probation revocation hearings. After carefully conducting the required balancing, it found the exclusionary rule to be inapplicable in Delaware's probation revocation process as well.[8] Specifically, the Kinard court balanced, on one side of the scale, its finding that the exclusionary rule precludes consideration of reliable, probative evidence, which would impose significant costs upon the probation process.[9] Against those costs, it balanced the benefit of what its deterrent effect would be if enforced in probation revocation hearings.[10] Of note, the illegal search at issue in Kinard involved police conduct where the police had no knowledge of the suspect's probationary status. In establishing its rule, the Kinard court noted that at the time all nine United States Circuit Courts of Appeals and the significant majority of state courts had declined to extend the exclusionary rule to probation violation proceedings.[11]

         While establishing an appropriate general rule, Kinard analyzes a different situation than the one at hand. Namely, Kinard involved police officers that were unaware of a defendant's probationary status.[12] After a warrantless search, the officers discovered drugs on the defendant, which led to a subsequent search of his home.[13] It involved a criminal investigation only. Mr. Walker correctly argues that this case is in part distinguishable from Kinard because Kinard did not involve an administrative search that was conducted because of the defendant's status as a probationer. Mr. Walker also correctly recognizes that Scott created a balancing test, which Kinard applied in declining to extend the exclusionary rule to violation of probation hearings.[14] That balancing test weighs the deterrent benefit of suppressing evidence against the costs of hampering the enforcement of probation conditions.[15]Mr. Walker seeks to distinguish Kinard by arguing that an illegal probation related search calls for a different weighing of factors than does Kinard. Specifically, he argues that the result of a balancing of costs versus benefits in this case favors suppressing the evidence from his violation of probation hearing. In contrast, the State counters that Kinard'?, general rule should be applied in all violation of probation hearings, under any circumstance.

         Prior to the start of the January 5, 2018 probation revocation hearing, the Court heard argument regarding Mr. Walker's motion to suppress the use of this evidence. At argument, the Court observed that some states decline to apply the exclusionary rule at violation of probation hearings as a general rule, but nevertheless carve out an exception when the evidence was seized as a result of a search directed at a probationer because of his probationary status.[16] As a result, the Court invited the parties to provide written memoranda of law stating their respective arguments regarding whether the evidence in this case should be excluded because the search was directed at a probationer and was based on an administrative warrant authorized because of Mr. Walker's probationary status. The Court acknowledged at the argument that accepting the appropriateness of Kinard 's general rule would not necessarily be dispositive of the issue in this case. Mr. Walker and the State then timely filed memoranda of law.

         As a threshold matter, this Court sees no reason to depart from the holding of Kinard that the exclusionary rule does not apply to violation of probation proceedings as a general rule. The Kinard Court persuasively and logically applied the balancing test created by the United States Supreme Court in Scott, and, consistent with many other courts, found the exclusionary rule to be inapplicable in violation of probation proceedings.[17] The Court must now consider, under these circumstances, whether an exception should be made to the general rule articulated in Kinard. Here, the deterrent effect calculus could be different when an improperly conducted administrative search is conducted by the same probation officers that seek to revoke a defendant's probation.

         Kinard balanced the value of the exclusionary rule's deterrent effect against the cost of withholding reliable information from the truth-seeking process.[18] Mr. Walker argues that, in this context, the need for deterrence weighs more heavily in favor of exclusion because the illegal search was initiated and executed as a probation-related matter. Accordingly, unlike in Kinard, the actors sought to be deterred in this case align directly with the actors prosecuting the matter. This argument recognizes that the purpose of the exclusionary rule is not to redress injury, but to deter future unlawful police conduct.[19] The Court finds that applying the rule in violation of probation hearings would have a greater deterrent effect on the agency charged with following proper procedures than that of a separate police agency that is focused instead on the prosecution of criminal offenses. At a minimum, this difference requires an independent weighing of these factors.

         The Scott decision involved an appeal of the Pennsylvania Supreme Court's decision that itself carved out an exception to the general rule against applying the exclusionary rule in parole proceedings where the officer performing the search knew that the subject was a parolee.[20] The United States Supreme Court declined to adopt that exception, finding that sufficient deterrence is still provided in cases where "parole officers may act like police officers and seek to uncover evidence of illegal activity."[21] The Court reasoned that such parole officers are "undoubtedly aware that any unconstitutionally seized evidence . . . could be suppressed in a criminal trial."[22] The majority in that decision also relied on the premise that parole officers' relationships with parolees are "more supervisory than adversarial."[23]

         Here, when weighing the separate deterrent effect under this set of circumstances, the result is not a, fait accompli. First and foremost, the Delaware Supreme Court has not yet directly addressed the issue even as to the general rule.[24]Second, at least the State of Florida, in addressing Scott, has distinguished probation from parole and found that the exclusionary rule applies fully in probation revocation hearings.[25] Third, notwithstanding the United State Supreme Court's application of the balancing test to Pennsylvania, many States still have applied an exception to this general rule when the officers knew about the defendant's probationary status.[26]

          Those courts also base that exception in part on the theory that the deterrent effect of the exclusionary rule outweighs the cost of excluding reliable evidence when officers are aware of the defendant's probationary status. Namely, if undeterred, those officers learn that illegally seized evidence can be used to revoke probation.[27]Consistent with the Scott decision's refusal to uphold the Pennsylvania exception requiring knowledge alone, the majority of States creating this exception also require an assessment of the probation or police officer's subjective intent when conducting the search.[28] This line of cases requires a finding of bad faith, lack of good faith, or conduct that is sufficiently egregious to shock the conscience of the court. On the other side of the split of authority are the many state and federal circuit courts that apply the blanket general rule finding the exclusionary rule inapplicable in probation revocation hearings, without exception.[29]

         This case involves a search based on an administrative warrant authorized because of Mr. Walker's probationary status and initiated by a probation officer. It is clear that the officers were aware of Mr. Walker's probationary status, and exclusion as a consequence would provide additional deterrence in the probation venue. However, the Court must balance the cost of impeding the truth-finding process and its detrimental impact on the probation process against the benefit of the rule's deterrent effect. As the United States Supreme Court recognized in Scott in the parole setting, litigating suppression issues would transform the process from a "predictive and discretionary effort" to a trial-like proceeding "less attuned" to the interests of the parolee and the public.[30] Although the Court recognizes that probation revocation proceedings are more ...

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