Opinion
No. 12–P–980.
2013-12-17
COMMONWEALTH v. Jair BARROS.
By the Court (GRAHAM, SIKORA & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 14, 2012, while on probation on two separate criminal matters, the defendant was arrested and charged with possession of a class B controlled substance with intent to distribute. This arrest triggered the initiation of probation surrender proceedings in the underlying cases in the Brockton District Court.
The surrender hearing was held in March, 2012. The only witness who testified regarding the new offense was the arresting officer. At the conclusion of the hearing, the judge found the defendant in violation of the terms and conditions of his probation and ordered him to serve the unexpired portion of his sentences on the underlying probation cases.
On appeal, the defendant contends that the judge erred in relying on portions of testimony of the arresting police officer. He asserts that the evidence the officer found on his person was illegally obtained. In addition, the defendant claims that the judge lacked impartiality and decided that a violation had occurred before hearing the evidence. For substantially the reasons set forth in the Commonwealth's brief, we affirm.
1. Exclusionary rule claim. We find no merit to the defendant's claim that the judge had a duty, sua sponte, to invoke the exclusionary rule on behalf of the defendant and strike the officer's testimony.
Generally, the exclusionary rule does not apply to probation surrender hearings. Commonwealth v. Vincente, 405 Mass. 278, 280 (1989) (excluding illegally obtained evidence from probation revocation hearing likely to have marginal additional deterrent effect on illegal police conduct).
The defendant's argument is that the officer entered private property (the defendant was in the passenger seat of a car idling in a driveway visible from the street, at 3:45 A.M.) unlawfully in order to harass the defendant, who he knew to be on probation, thus, he claims, the judge erred in failing to strike, sua sponte, his testimony, pursuant to the exclusionary rule. The vehicle “was not in a location that would give rise to a reasonable expectation of privacy.” Commonwealth v. Simmons, 392 Mass. 45, 49 (1984).
Indeed, even statements suppressed after an evidentiary hearing are properly admitted at a probation surrender hearing absent egregious, outrageous police conduct. See Commonwealth v. Olsen, 405 Mass. 491 (1989), relied upon by the defendant.
Here, there is nothing to support the defendant's claim that evidence against him was obtained illegally. Nor was there any evidence that the drugs recovered by the officer were obtained by egregious or outrageous police conduct.
A probation revocation proceeding is not a criminal trial. The probationer already has been convicted of a crime at a trial and enjoys “only ... conditional liberty ... dependent on observance of special parole restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Commonwealth v. Durling, 407 Mass. 108, 115 (1990).
2. Judge's comment. We also find no merit to the defendant's claim that the judge prejudged the probation surrender based solely on her response to a question by a probation officer. After the probation officer asked the judge whether she would take the defendant's board of probation record as an evidentiary exhibit, the judge replied that she would consider the record at the disposition phase of the hearing. In context, we are not persuaded that the judge's comment indicates a determination by her, at that stage, that there would be a dispositional phase. See Commonwealth v. Vickery, 82 Mass.App.Ct. 234, 237 (2012) (comments by a judge are viewed in context and in their entirety).
Order revoking probation affirmed.