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People v. Dowery





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Philip Romiti, Judge, presiding.


The sole issue for review in this appeal is whether evidence which has been suppressed in proceedings on a substantive criminal offense may be subsequently utilized to revoke probation. The appellate court held that such evidence was admissible (People v. Dowery, 20 Ill. App.3d 738) and we granted leave to appeal.

On April 16, 1971, defendant, Freddie Dowery, pleaded guilty to armed robbery in the circuit court of Cook County and was placed on 5 years' probation. On February 9, 1972, defendant was arrested and charged with burglary. During a hearing on the burglary charge, defense counsel sought to suppress certain items taken in the burglary which defendant had in his possession shortly before his arrest.

The record discloses that Officer James Polk talked to an unidentified citizen at 71st Street and South Wabash Avenue in Chicago. Polk was told that a burglary may have occurred in that area and several men were seen carrying merchandise away. Polk was unable to corroborate the fact that a burglary had taken place or its location. Polk was not in uniform and he was driving an unmarked police car at this time.

Shortly thereafter Polk observed the defendant and another, identified as "Junkie Slim," walking northward in the 6700 block of South Wabash at about 3:30 p.m. Polk did not have a warrant for defendant's arrest nor had he observed defendant commit a crime. As he drove near defendant, Polk saw that defendant was carrying a bulky item which had been covered with a sheet and blanket. Defendant and the other man crossed the street and began to walk into an alley. They turned and, seeing Polk, both men ran after dropping the items they were carrying. Dowery was apprehended, but the other man eluded the police. At the conclusion of this hearing the trial court sustained defendant's motion to suppress. The State moved that the burglary charge be stricken with leave to reinstate. No appeal was taken from the suppression order.

Prior to disposition of the burglary charge the State filed an application to revoke defendant's probation which had been imposed on the armed robbery conviction. The application recited that the basis for revocation of probation was defendant's scheduled appearance on the burglary matter.

Following the hearing on the motion to suppress certain evidence taken in the burglary, a rule to show cause was issued for the revocation of defendant's probation. At the probation revocation proceedings the burglary victim identified the items discarded by the defendant and the other man as being her property. Officer Polk reiterated his testimony concerning defendant's apprehension. Polk further said that after defendant was placed in custody and advised of his constitutional rights, defendant stated he did not commit the burglary but he did help carry the stolen property away. Defendant testified on his own behalf claiming he did not know the property was stolen until his companion told him after they saw Polk. Defendant conceded that he made the incriminating admission as to his participation after the burglary occurred.

At the conclusion of the hearing on May 17, 1972, the trial court revoked defendant's probation and sentenced him to the penitentiary for a term of 2 to 4 years. The record reflects that on the day notice of appeal was filed, the trial court, on defendant's motion and after hearing evidence in aggravation and mitigation, modified the maximum sentence to 3 years.

Defendant maintains that the affirmative use of evidence at the probation revocation proceeding which had been previously suppressed violated his constitutional right to be free from illegal searches and seizures. He requests that the "exclusionary rule" be applied to revocation proceedings. Although counsel have stated during oral argument that the correctness of the suppression order was arguable, the propriety of that disposition is not before this court.

The United States Supreme Court has said that the "exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens `to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *.' Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure." (United States v. Calandra (1974), 414 U.S. 338, 347, 38 L.Ed.2d 561, 571, 94 S.Ct. 613, 619.) As that court has recently explained, the application of the "exclusionary rule" safeguards "Fourth Amendment guarantees in two respects: `in terms of deterring lawless conduct by federal officers,' and by `closing the doors of the federal courts to any use of evidence unconstitutionally obtained.' [Citation.] These considerations of deterrence and of judicial integrity, by now, have become rather commonplace in the Court's cases. [Citations.] `The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guarantee in the only effectively available way — by removing the incentive to disregard it.' [Citation.] But `[d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.'" (Brown v. Illinois (1975), 422 U.S. 590, 599-600, 45 L.Ed.2d 416, 424-5, 95 S.Ct. 2254, 2259-60.) This judicially created remedy is applicable to State courts. (Mapp v. Ohio (1961), 367 U.S. 643, 655, 6 L.Ed.2d 1081, 1090, 81 S.Ct. 1684, 1691.) But in determining whether the "exclusionary rule" should be extended to certain proceedings a balancing test has been utilized to limit application of the rule "to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra (1974), 414 U.S. 338, 348, 38 L.Ed.2d 561, 571, 94 S.Ct. 613, 620.

While a defendant is entitled to due process of law at probation revocation proceedings, significant dissimilarities exist between such proceedings and a criminal trial. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 36 L.Ed.2d 656, 661-62, 93 S.Ct. 1756, 1759; People v. Beard (1974), 59 Ill.2d 220, 226, cert. denied, 421 U.S. 992, 44 L.Ed.2d 483, 95 S.Ct. 2001.) In Gagnon v. Scarpelli the Supreme Court noted the varying interests involved in revoking probation. The defendant has an interest not to have his liberty unjustifiably curtailed. The State has the interest not to interrupt a successful rehabilitation effort, but the State must not imprudently endanger community safety.

It is within this context that defendant's contention must be viewed in order to determine whether the "exclusionary rule" should have been applied to his probation revocation. In resolution of this issue we are aided by numerous decisions which have discussed the matter. With limited authority to the contrary, the overwhelming number of reported cases have held that the fourth amendment's "exclusionary rule" was not applicable under the circumstances to probation revocation proceedings or qualitatively comparable proceedings to revoke parole. United States v. Winsett (9th Cir. 1975), 518 F.2d 51; United States v. Farmer (6th Cir. 1975), 512 F.2d 160, cert. denied, ___ U.S. ___, 46 L.Ed.2d 305, 96 S.Ct. 397; United States v. Brown (5th Cir. 1973), 488 F.2d 94; United States v. Hill (7th Cir. 1971), 447 F.2d 817; United States ex rel. Sperling v. Fitzpatrick (2d Cir. 1970), 426 F.2d 1161; United States ex rel. Lombardino v. Heyd (E.D. La. 1970), 318 F. Supp. 648, aff'd per curiam (5th Cir.) 438 F.2d 1027, cert. denied 404 U.S. 880, 30 L.Ed.2d 160, 92 S.Ct. 195; State v. Caron (Me. 1975), 334 A.2d 495; People v. Coleman (1975), 13 Cal.3d 867, 876 n. 8, 533 P.2d 1025, 1033 n. 8, 120 Cal.Rptr. 384, 393 n. 8; State v. Thorsness (Mont. 1974), 528 P.2d 692; People v. Atencio (Colo. 1974), 525 P.2d 461; Commonwealth v. Kates (1973), 452 Pa. 102, 305 A.2d 701; Stone v. Shea (1973), 113 N.H. 174, 304 A.2d 647; Reeves v. Turner (1972), 28 Utah 2d 310, 501 P.2d 1212; Barker v. State (Tenn. Crim. App. 1972), 483 S.W.2d 586; State v. Kuhn (1972), 7 Wn. App. 190, 499 P.2d 49; but see Michaud v. State (Okla. Crim. App. 1973), 505 P.2d 1399.

In analyzing many of the aforementioned cases, the Supreme Court of Maine in State v. Caron observed: "The rationale of the decisions is that since the Federal Fourth Amendment `evidence-exclusionary' rule is operative in any event in all `criminal prosecutions', the additional furtherance of its policy objectives achieved by extending the rule to hearings for revocation of probation (or parole) is insufficient to justify the concomitant impairment of the proper functioning of the probation-parole system." (334 A.2d 495, 499.) And in United States v. Winsett the Court of Appeals remarked that at a probation revocation proceeding all reliable evidence should be available to gauge a defendant's rehabilitative effort. It concluded that extension of the "exclusionary rule" to such proceedings "would tend to frustrate the remedial purposes of the probation system." 518 F.2d 51, 55.

The only reservation expressed by several courts in denying applicability of the "exclusionary rule" to a revocation proceeding might occur in situations where police harassment of probationers is demonstrated. (E.g., United States v. Winsett, 518 F.2d 51, 54 n. 5; United States v. Farmer, 512 F.2d 160, 162; United States ex rel. Lombardino v. Heyd, 318 F. ...

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