¶1specially concurring.
¶2(24) I concur in the result. I do so because I believe that the result is compelled by the reasoning of the New Mexico Supreme Court in State v. Gutierrez, 116 N.M. 431, 863 P.2d 1052 (1993).
¶3(25) The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
¶4Article II, Section 10 of the New Mexico Constitution uses essentially the same language:
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, and no warrant to search any place, or seize any person or thing, shall issue without describing the place to be searched, or the persons or things to be seized, nor without a written showing of probable cause, supported by oath or affirmation.
¶5For convenience, I shall refer to both provisions as the Fourth Amendment.
¶6(26) Whether this case is difficult depends on the rationale one adopts for the exclusionary rule — the rule that evidence obtained in violation of a person’s Fourth Amendment rights cannot be used by the government in a criminal trial of that person. One view is that the use at a criminal trial of unlawfully obtained evidence constitutes a violation of the Fourth Amendment. In other words, the Fourth Amendment itself commands the exclusionary rule. The other view is that the exclusionary rule is merely a means to an end — a remedy devised by the courts to protect Fourth Amendment rights.
¶7(27) To me, the choice between the two views is a relatively easy one. The Fourth Amendment says nothing about remedies. It prohibits certain governmental conduct, but it does not say what happens when the prohibition is violated. Can the victim of the violation sue for civil damages? Can the violator be prosecuted criminally? Can evidence unlawfully obtained be used against the victim in a criminal trial? a civil trial? The courts have a high duty to make Fourth Amendment rights a reality. But, at least as a theoretical matter, that reality could be achieved without the exclusionary rule.
¶8(28) Hence, whether to adopt the exclusionary rule is a matter of pragmatic judgment. For the past several decades the dominant view has been that remedies short of the exclusionary rule are inadequate to protect Fourth Amendment rights. In the absence of the rule, courts have found law enforcement agencies all too willing to disregard constitutional restraints. See, e.g., People v. Cohan, 44 Cal.2d 434, 282 P.2d 905, 907-14 (1955).
¶9(29) Yet, if the exclusionary rule is a means to an end, rather than an end in itself, it may be appropriate to set limits to its application. For example, the United States Supreme Court adopted what is called the good-faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Supreme Court held that evidence obtained pursuant to a warrant that is later determined to be invalid should not be suppressed if the officers’ reliance on the warrant was objectively reasonable. Cf. Cahan, 282 P.2d at 909 n. 4 (suggesting possibility of good-faith exception to exclusionary rule). Contra Gutierrez (rejecting good-faith exception).
¶10. (30) From this pragmatic point of view, the question before us on appeal would be whether application of the exclusionary rule to probation-revocation hearings is necessary to deter violations of the Fourth Amendment by law enforcement officers. Reasonable people could differ in their answers. The fact that New Mexico has rejected the good-faith exception does not in itself compel exclusion. I note that the Connecticut Supreme Court has rejected the good-faith exception, see State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990), while ordinarily refusing to apply the exclusionary rule in probation-revocation proceedings, see Payne v. Robinson, 207 Conn. 565, 541 A.2d 504 (1988).
¶11(31) Such analysis is unnecessary, however, if one adopts the view that the Fourth Amendment compels the exclusionary rule, regardless of pragmatic considerations. This is the view of the New Mexico Supreme Court. As I understand Gutierrez, the use at trial of unlawfully seized evidence in itself constitutes a violation of the New Mexico Constitution. Even if the exclusionary rule did not reduce by one iota the number or extent of unlawful searches or seizures in the State of New Mexico, and even if victims of unlawful searches or seizures could receive adequate damages in civil actions, the exclusionary rule would still have to be applied in New Mexico courts. In Gutierrez the Court stated unequivocally that its rejection of the good-faith exception to the exclusionary rule was not “premised on policy concerns of judicial integrity or deterrence,” id. at 447, 863 P.2d at 1068, and that the only way to “effectuate the constitutional right to be free from unreasonable search and seizure” is “to deny the government the use of evidence obtained pursuant to an unlawful search.” Id. at 445, 863 P.2d at 1066.
¶12(32) I find nothing in the Gutierrez opinion that would support the exclusion of evidence in a criminal trial but not in a revocation proceeding. Therefore, the decision in the case before us is an easy one. The State cannot use unlawfully obtained evidence in a probation-revocation hearing. I express no view on what the result would be if the exclusionary rule in New Mexico were “premised on policy concerns of judicial integrity or deterrence.”