Court of Appeals of North Carolina, 1985

State v. Lombardo

State v. Lombardo
Court of Appeals of North Carolina · Decided May 7, 1985 · Martin, Phillips, Webb
74 N.C. App. 460; 328 S.E.2d 780; 1985 N.C. App. LEXIS 3512

State v. Lombardo

Opinion of the Court

MARTIN, Judge.

In State v. Lombardo, 306 N.C. 594, 295 S.E. 2d 399 (1982), our Supreme Court held, without qualification, that the fourth amendment exclusionary rule does not apply in probation revocation hearings. In so doing, the Supreme Court expressly overruled State v. McMilliam, 243 N.C. 775, 92 S.E. 2d 205 (1956), holding that illegally seized evidence cannot be used to revoke probation, and held that “evidence which does not meet the standards of the fourth and fourteenth amendments to the United States Constitution may be admitted in a probation revocation hearing.” Lombardo, supra at 602, 295 S.E. 2d at 404 (original emphasis). Defendant’s sole contention on appeal is that the trial court misapplied the law of the Lombardo decision rendered by the Supreme Court and therefore erred in denying defendant’s re*463newed motion to suppress any evidence obtained from his arrest. Defendant maintains that based on the Lombardo decision, the issue of whether the law enforcement officers had knowledge of defendant’s probationary status was relevant to the trial court’s determination of his motion to suppress; that defendant was prepared to assert that the law enforcement officers did know that defendant was on probation; and that therefore, the evidence obtained from defendant was subject to the exclusionary rule. A careful analysis of the opinion reveals that while knowledge of the probationer’s status by the law enforcement official who conducted the illegal search would tend to undermine the rationale of holding the exclusionary rule inapplicable to probation revocation hearings, the Court’s decision was not qualified upon the law enforcement official’s unawareness of the probationer’s status. We therefore hold that the trial court did not misapply the law of Lombardo and affirm its order.

When an appellate court decides a question and remands the case for further proceedings, the questions determined by the appellate court become the law of the case, both in subsequent proceedings in the trial court, and on appeal. Bruce v. Flying Service, 234 N.C. 79, 66 S.E. 2d 312 (1951). The law of the case doctrine does not apply to dicta, but only to points actually presented and necessary to a determination of the case. Hayes v. Wilmington, 243 N.C. 525, 91 S.E. 2d 673 (1956).

In Lombardo, the Court noted:

If the officer knows that the defendant is on probation the officer may not be deterred from conducting an illegal search or seizure of the defendant unless he knows the evidence obtained from such illegal conduct is excluded at a probation revocation hearing.

Lombardo, supra at 600, 295 S.E. 2d at 403. This statement represents one factor the Court considered in analyzing the overall deterrent effectiveness of the exclusionary rule as relating to probation revocation hearings; the Court did not expressly qualify its holding to exclude the rule’s application to such proceedings upon the law enforcement official being unaware of the probationer’s status. The Court gave additional reasoning for its holding: application of the exclusionary rule to revocation hearings would damage the viability of the probation system “by *464allowing those like Lombardo, who show a total disregard for the system, to exclude evidence of their personal probation violations.” Id. at 600-01, 295 S.E. 2d at 404. “For all the reasons articulated ... we hold that the exclusionary rule should not be applied in revocation hearings.” Id. at 604, 295 S.E. 2d at 406 (emphasis added).

We are bound by the ruling of our Supreme Court: the exclusionary rule is not applicable to revocation hearings. The trial court therefore was not required to determine whether the law enforcement officers had knowledge of defendant’s probationary status; it did not err in denying defendant’s motion to suppress any evidence obtained from the search and seizure. The order of the trial court is

Affirmed.

Judges Webb and Phillips concur.

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