The Exclusionary Rule and Probation Revocation Hearings; New Georgia Law!

On May 31, 2011, the Georgia Supreme Court issued an opinion in State v. Thackston. You can read the full opinion here. The opinion reverses over 30 years of precedent and answers a critical question in Georgia: Is illegally seized evidence admissible in a probation revocation hearing? The Supreme Court held that illegally seized evidence is admissible in probation revocation hearings in Georgia. The opinion, authored by Justice Thompson, contains a great insight into the history of the Exclusionary Rule and the underlying role of probation in our criminal justice system. I highly recommend that you read the opinion and the concurrence/ dissent by Justice Benham.

The Exclusionary Rule in Georgia is codified at O.C.G.A. § 17-5-30. This statute reads as follows:

(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that:

 (1) The search and seizure without a warrant was illegal; or

 (2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.

 (b) The motion shall be in writing and state facts showing that the search and seizure were unlawful. The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant in any trial.

 (c) The motion shall be made only before a court with jurisdiction to try the offense. If a criminal accusation is filed or if an indictment or special presentment is returned by a grand jury, the motion shall be made only before the court in which the accusation, indictment, or special presentment is filed and pending.

The Thackston Court held that section (b) of the statute answered the question in the final analysis. The words, “shall not be admissible against the movant in any trial” indicated that the statute only controlled the admissibility of evidence in a criminal trial. As a probation revocation hearing is not a “trial”, the Court decided that this statue and the Exclusion Rule in Georgia, does not prevent the introduction of illegally seized evidence in a probation revocation hearing.

So what is the “take away” for LEOs? First and foremost is to remember that a person who is searched illegally can file suit under 42 U.S.C. § 1983 for deprivation of civil rights under color of law. Second, this case represents a statement of policy in Georgia regarding probation. As quoted in the Thackston opinion, the policy behind probation is to allow offenders to serve their sentences while reintegrating into society. When a court conducts a probation revocation hearing, the inquiry is simple; is the probationer abiding by the rules of probation, including the obligation to obey all criminal laws, sufficient to allow him to finish his sentence without being incarcerated. The Thackston opinion adopts a policy that is aimed at getting at the truth. Simply stated, whether or not the evidence of drug possession is admissible in a criminal case against the probationer is secondary to the question of whether or not the probationer was in possession of drugs.

Stay safe.