Oliver Milton Basnight, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
OLIVER MILTON BASNIGHT, A/K/A
LEONARD JONES
MEMORANDUM OPINION * BY
v. Record No. 1845-95-2 JUDGE JOHANNA L. FITZPATRICK
MAY 28, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Oliver Milton Basnight (appellant) appeals the trial court's
revocation of his suspended sentence. He argues that the trial
court erred in relying on evidence obtained during a warrantless
search in violation of the Fourth Amendment. Because the
exclusionary rule does not apply in revocation hearings except
where bad faith is shown, we affirm the trial court.
In September 1990, appellant was convicted of possession of
cocaine with intent to distribute and sentenced to fifteen years
in the state penitentiary, with ten suspended.
On March 24, 1995, an anonymous informant notified the
Richmond Police Department that appellant, also known as Leonard
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Jones, was at 3007 Decatur Street in the City of Richmond.
Officer James C. Samuels (Samuels), who did not know appellant,
responded to the call to arrest him on an outstanding warrant.
Samuels entered the house and determined which of the three men
in the house was appellant. Samuels then arrested him and
handcuffed him. After placing him under arrest, Samuels left him
in the front hall, returned to the room where he first saw him,
and opened the window blinds. He saw the butt of a gun on the
chair where appellant had been sleeping and seized the gun. At
the police department, appellant stated that he won the gun while
gambling.
On April 13, 1995, while the March 24, 1995 firearm
possession charge was pending, the trial court revoked a portion
of appellant's suspended sentence for failing to notify his
probation officer of his address and for absconding from
supervised probation. The court imposed the ten years, ordering
appellant to serve two and leaving eight suspended. On July 5,
1995, the court again ordered appellant to appear and "show cause
why the suspended sentence previously imposed should not be
revoked" based upon his possession of a firearm on March 24,
1995. At the show cause hearing on August 2, 1995, appellant
moved to suppress the gun and his statement, arguing that
Samuels' warrantless entry and search of the house violated his
Fourth Amendment rights. The trial court denied the motion to
suppress and found that the gun was properly seized because it
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was in plain view. The court revoked appellant's suspended
sentence, imposed the remaining eight years, and granted the
Commonwealth's motion to nolle prosequi the underlying firearm
charge against appellant.
The Supreme Court of Virginia has held that "the
exclusionary rule is not applicable in a probation revocation
hearing absent a showing of bad faith on the part of the police."
Anderson v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___
(1996). In Anderson, the Supreme Court recognized that
"[a]pplication of the exclusionary rule in a probation revocation
proceeding would frustrate the remedial and protective purposes
of the probation system, because a court would not be permitted
to consider relevant evidence of the probationer's rehabilitation
or regression." Id. "Conduct which may constitute bad faith on
behalf of a police officer, over and above the illegal search
itself, may take many forms." Anderson v. Commonwealth, 20 Va.
App. 361, 365, 457 S.E.2d 396, 398 (1995).
In the instant case, the exclusionary rule did not prevent
the trial court from considering the gun and appellant's
statement. No evidence shows any bad faith by the police. As in
Anderson, the record fails to indicate that Samuels "knew or
thought [appellant] was on probation or parole, expected that the
evidence could be used against [appellant] for a secondary
purpose, or conducted the search or seizure with a purpose of
harassing or annoying [appellant]." Id. at 365-66, 457 S.E.2d at
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398. Samuels did not know appellant and had no knowledge of
appellant's probationary status. The only information provided
to Samuels was that: (1) appellant was also known as Leonard
Jones; (2) he was at the Decatur Street address; and (3) there
was an outstanding warrant for his arrest.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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