State v. Alfaro, 623 P.2d 8 (Ariz. 1980). · Go Syfert
State v. Alfaro, 623 P.2d 8 (Ariz. 1980). Cases Citing This Book View Copy Cite
56 citation events (9 in the last 25 years) across 13 distinct courts.
Strongest positive: State v. Lopez (arizctapp, 2025-10-31)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. Lopez
Ariz. Ct. App. · 2025 · confidence medium
There is no evidence in the record supporting that the State dismissed the charges against Lopez, or, if the State did so, why it did so. ¶14 But even assuming the State dismissed the charges, “the function of a probation violation hearing is not to decide guilt or innocence but to determine, by a preponderance of all reliable evidence, whether a probationer has violated the terms and conditions of his probation.” State v. Alfaro, 127 Ariz. 578, 579 (1980); see also State v. Pietsch, 109 Ariz. 261 (1973) (affirming probation revocation even after the State dismissed charges).
discussed Cited as authority (rule) State v. Matson
Ariz. Ct. App. · 2023 · confidence medium
Subsequently, Matson testified that he knew he had to actively participate in his sex offender treatment as a term of his probation, and that he told his treatment providers that he was not guilty of a sexual offense. ¶8 The superior court found by a preponderance of the evidence see State v. Alfaro, 127 Ariz. 578, 579 (1980), that Matson had violated Uniform Condition No. 11 and Special Condition No. 7 of his probation.
discussed Cited as authority (rule) Neko Anthony Wilson v. Hon. higgins/state (2×)
Ariz. · 2021 · confidence medium
State v. Alfaro, 127 Ariz. 578, 579 (1980); United States v. Knights, 534 U.S. 112, 119 (2001) (“Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” (quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987))).
discussed Cited as authority (rule) State of Arizona v. Ricky Lee Sabin
Ariz. Ct. App. · 2006 · confidence medium
See Arizona v. Evans, 514 U.S. 1, 10-11 , 115 S.Ct. 1185, 1191 , 131 L.Ed.2d 34 (1995); United States v. Calandra, 414 U.S. 338, 348 , 94 S.Ct. 613, 620 , 38 L.Ed.2d 561 (1974); State v. Alfaro, 127 Ariz. 578, 579-80 , 623 P.2d 8, 9-10 (1980); State v. Booker, 212 Ariz. 502, ¶ 13 , 135 P.3d 57, 59 (App.2006). 6 .
discussed Cited as authority (rule) State v. Marquart (2×)
N.M. Ct. App. · 1997 · confidence medium
See State v. Turner, 257 Kan. 19 , 891 P.2d 317 , 320 (1995); see also State v. Sears, 553 P.2d 907, 913 (Alaska 1976); State v. Alfaro, 127 Ariz. 578 , 623 P.2d 8, 9 (1980) (en banc); McGhee v. State, 25 Arik.App. 132, 752 S.W.2d 303, 304-05 (1988); People v. Wilkerson, 189 Colo. 448 , 541 P.2d 896, 898 (1975) (en banc); Payne v. Robinson, 207 Conn. 565 , 541 A.2d 504, 507 (1988); People v. Dowery, 20 111.
discussed Cited as authority (rule) State v. Atwood (2×)
Ariz. · 1992 · confidence medium
Stone, 428 U.S. at 485-95 , 96 S.Ct. at 3048-53 ; see also State v. Bolt, 142 Ariz. 260, 269-73 , 689 P.2d 519, 528-532 (1984) (Cameron, J., and Hays, J., separately specially concurring) (proposing that courts, in determining whether the exclusionary rule should be applied, should weigh the costs of applying the rule against the benefits of applying the rule); State v. Alfaro, 127 Ariz. 578, 579-80 , 623 P.2d 8, 9-10 (1980) (under weighing analysis, exclusionary rule held not applicable during probation revocation proceedings); James Duke Cameron & R.
discussed Cited as authority (rule) State v. Archuleta
Utah Ct. App. · 1991 · confidence medium
In Hodges , this court acknowledged Williams , but because of the age of the case chose to adopt a preponderance standard, noting that “the ‘some competent evidence’ standard [was] too nebulous to apply to probation revocation.” Hodges, 798 P.2d at 278 . 3 Additionally, as the Hodges court noted, “our adoption of the preponderance of evidence standard is consistent with other courts that have articulated a standard of proof in probation revocation proceedings.” Id. at 279 (citing Morishita v. Morris, 702 F.2d 207, 210 (10th Cir.1983); State v. Alfaro, 127 Ariz. 578, 580 , 623 P.2d …
discussed Cited as authority (rule) State v. Hodges
Utah Ct. App. · 1990 · confidence medium
See, e.g., Morishita II, 702 F.2d at 210 ; Baynard v. State, 318 Md. 531 , 569 A.2d 652, 655 (1990); Wink v. State, 317 Md. 330 , 563 A.2d 414, 414-418 (1989) (extensive analysis of degree of proof in probation revocation); State v. Alfaro, 127 Ariz. 578 , 623 P.2d 8, 10 (1980); Justice v. State, 550 N.E.2d 809, 810 (Ind.App.1990); State v. Fortier, 20 Or.App. 613 , 533 P.2d 187, 188 (1975).
cited Cited as authority (rule) State v. Jurado
Ariz. Ct. App. · 1988 · confidence medium
State v. Alfaro, 127 Ariz. 578, 579 , 623 P.2d 8, 9 (1980).
discussed Cited as authority (rule) Thompson v. United States
D.C. · 1982 · confidence medium
See United States v. Frederickson, 581 F.2d 711, 713 (8th Cir. 1978); United States v. Wiygul, 578 F.2d 577, 578 (5th Cir. 1978); United States v. Winsett, supra; United States v. Farmer, 512 F.2d 160, 162-63 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 397 , 46 L.Ed.2d 305 (1975); United States v. Hill, 447 F.2d 817, 818-19 (7th Cir. 1971); United States v. Allen, 349 F.Supp. 749, 753-54 (N.D.Cal.1972); State v. Sears, 553 P.2d 907, 913 (Alaska 1976); State v. Alfaro, 127 Ariz. 578, 579 , 623 P.2d 8, 9 (1980) (en banc); Harris v. State, 606 S.W.2d 93, 95 (Ark.App.1980); People v. Rafter, …
discussed Cited "see" State v. Wyman (2×)
Ariz. Ct. App. · 2000 · signal: see · confidence high
See State v. Alfaro, 127 Ariz. 578 , 623 P.2d 8 (1980) (exclusionary rule does not apply to probation revocation proceedings).
discussed Cited "see" State v. Mohr (2×)
Ariz. Ct. App. · 1986 · signal: see · confidence high
State v. Dixon, 127 Ariz. 554, 560 , 622 P.2d 501, 507 (App.1981); see State v. Alfaro, 127 Ariz. 578, 580-81 , 623 P.2d 8, 10-11 (1980). 2 .
discussed Cited "see, e.g." State v. Walker (2×)
Del. Super. Ct. · 2018 · signal: see, e.g. · confidence low
See, e.g., State v. Alfaro, 127 Ariz. 578 , 623 P.2d 8, 9 (1980) (holding that the exclusionary rule could not be invoked at a violation of probation hearing); State v. Jacobs, 229 Conn. 385 , 641 A.2d 1351, 1354 (1994) (holding that the exclusionary rule would not apply to prevent the fruits of a claimed illegal search from being introduced at a probation revocation hearing); see also Kinard, 2005 WL 2373701 , at *3 n.9 (listing the Federal Court of Appeals decisions that refuse to apply the exclusionary rule in violation of probation hearings). 30 .
discussed Cited "see, e.g." Anderson v. Commonwealth
Va. · 1996 · signal: see, e.g. · confidence medium
See, e.g., State v. Alfaro, 623 P.2d 8, 9-10 (Ariz. 1980); People v. Wilkerson, 541 P.2d 896, 898 (Colo. 1975); Bernhardt v. State, 288 So.2d 490, 500 (Fla. 1974); People v. Dowery, 312 N.E.2d 682, 685-87 (Ill.
cited Cited "see, e.g." State v. Dodd
Fla. Dist. Ct. App. · 1981 · signal: see also · confidence low
See also, e.g., State v. Alfaro, 623 P.2d 8 (Ariz. 1980).
Retrieving the full opinion text from the archive…
STATE of Arizona, Appellee,
v.
Nicolas Magallon ALFARO, Appellant
5086-PR.
Arizona Supreme Court.
Dec 15, 1980.
623 P.2d 8
Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Michael D. Jones, Asst. Attys. Gen., Phoenix, for appellee., Richard S. Oseran, Pima County Public Defender by Frank P. Leto, Asst. Public Defender, Tucson, for appellant.
Gordon, Struckmeyer, Cameron, Holohan.
Cited by 30 opinions  |  Published

Lead Opinion

[*579] HAYS, Justice.

In 1976 appellant entered a guilty plea to charges of second degree rape. Imposition of sentence was suspended and appellant was placed on probation for five years. This action stems from the revocation of that probation. Appeal was taken to the Court of Appeals. State v. Alfaro, 2 CA-CR 1988-2 (memorandum decision, July 31, 1980). Granting the Petition for Review, we vacate the memorandum decision of the Court of Appeals and affirm the order revoking appellant’s probation.

Acting upon an informant’s tip, appellant became the subject of a burglary investigation by Tucson police. Prior to obtaining a search warrant for appellant’s apartment and car, the police ran a routine records check which disclosed appellant’s status as a probationer. The police discovered, upon serving the warrant, property recently reported stolen in appellant’s car and under a bed in his apartment.

Prior to trial on charges of burglary, theft, and misconduct involving weapons, a petition to revoke appellant’s probation was filed. At the probation revocation hearing, appellant sought to challenge the search warrant and evidence obtained thereby. The parties agreed the investigating officer knew appellant was on probation before obtaining the warrant, and pursuant to the directives of State v. Shirley, 117 Ariz. 105, 570 P.2d 1278 (App.1977), the trial judge made an ad hoc determination the search was conducted for the purposes of investigating a burglary. The trial judge ruled that even though the police knew of appellant’s status as a probationer, the motive for the search was legitimate; therefore, no suppression hearing was necessary because the exclusionary rule was not applicable to appellant’s case.

We are asked here to decide whether the exclusionary rule applies in probation revocation proceedings. We hold that it does not and anything to the contrary in State v. Shirley, supra, is disapproved.

To determine whether the exclusionary rule should apply in the probation revocation context we must balance the purpose and function of those proceedings with any potential benefits to be gained by application of the rule. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974). Essentially, the function of a probation violation hearing is not to decide guilt or innocence but to determine, by a preponderance of all reliable evidence, whether a probationer has violated the terms and conditions of his probation. State v. LeMatty, 121 Ariz. 333, 590 P.2d 449 (1979); 17 A.R.S., Rules of Criminal Procedure, rule 27.7(b). The purpose of such proceedings is to ascertain whether continued probation is still an effective means of rehabilitation and in the best interest of society.

In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), the United States Supreme Court found the due process requirements of parole revocation proceedings, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972), applicable to probation revocation hearings. Those due process requirements do not include the full range of evi-dentiary and procedural safeguards found in criminal prosecutions because “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissable in an adversary criminal trial.” Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. at 2604. The Supreme Court also observed that the full panoply of rights do not apply because “[Revocation deprives an individual not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on the observance of special [probation] restrictions.” 408 U.S. at 480, 92 S.Ct. at 2600.

Balanced against the purpose and functions of probation violation hearings is the potential benefit to be gained by the further extension of the exclusionary rule. Under the rule, evidence obtained by violating fourth amendment guarantees is not admissible in a criminal proceeding against the victim of the illegal search, and seizure. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341 (1914). Deterrence of fu[*580] ture police misconduct through suppression of illegally obtained evidence is the rule’s purpose:

The rule is calculated to prevent not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.

Elkins v. United States, 364 U.S 206, 217, 80 S.Ct. 1437, 1444 (1960).

“[T]he suppression of probative but tainted evidence exacts a costly toll upon the ability of the courts to ascertain the truth . . . . ” United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445 (1980). We will pay the price where the purpose of deterrence is served but if application of the exclusionary rule does not effectuate deterrence then the exclusionary rule is being misapplied. It can not be said application of the exclusionary rule makes evidence more or less reliable nor can it be said the rule furthers the purposes of probation. Moreover, the Supreme Court has said: “Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence is made inadmissable to the prosecution in its case in chief.” Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645 (1971).

We think any additional benefit in double application of the exclusionary rule is outweighed by the harm done to the rehabilitative goal of probation. Rather than saying the police will have less incentive to obey the law, we think the probationer will have greater incentive to obey the terms of his probation if any reliable information will be available at a probation revocation hearing. We hold the exclusionary rule does not apply in probation violation hearings.[1]

Appellant also contends he was denied due process when the trial judge relied on the permissible inference of A.R.S. § 13-2305(1) to find that appellant committed theft, A.R.S. § 13-1802(A)(5), thereby violating the terms of his probation.

In Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357 (1973), a criminal action for possessing United States Treasury checks stolen from the mails, knowing them to be stolen, the Supreme Court upheld a jury instruction allowing an inference from the unexplained possession of recently stolen mail that the defendant possessed the mail knowing it to be stolen. The Court said:

if a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process. 412 U.S. at 843, 93 S.Ct. at 2361-62.

Since the court was dealing with a criminal prosecution it found the evidence necessary to invoke the inference must be established beyond a reasonable doubt. Due process in a probation revocation hearing is satisfied with proof by a preponderance of the evidence; therefore, we think the latter standard is applicable here. See Gagnon v. Scarpelli, supra; Morrissey v. Brewer, supra.

In order to invoke the inference that appellant was aware of the risk that the property was recently stolen, A.R.S. § 13-2305 requires: 1) unexplained possession of 2) recently stolen property. The uncontradicted evidence established that the property found in appellant’s automobile and apartment was recently reported stolen. The record also discloses no evidence which might constitute an explanation of appellant’s possession of the property. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241 (1943). We think the evidence giving rise to the statutory inference was established by a preponderance of the evidence and[*581] that the inference was properly drawn to support revocation of appellant’s probation.[2]

The order revoking appellant’s probation is affirmed. '

STRUCKMEYER, C. J., and CAMERON, J., concur.
1

For a collection of the numerous other jurisdictions in accord with our decision, see United States v. Frederickson, 581 F.2d 711 (8th Cir. 1978). See also United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970) (excellent discussion of the underlying policy considerations).

2

Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450 (1979), cited by appellant, is inapplicable as it deals with conclusive presumptions rather than permissive inferences.

Dissent

HOLOHAN, Vice Chief Justice

(dissenting):

The reasons advanced by the majority for not applying the exclusionary rule to probation revocation proceedings are not persuasive to me. The long line of federal cases holding as inadmissible evidence obtained by illegal search compels the conclusion that this court’s balancing of benefits test cannot be sustained.

The rehabilitative goal of probation is no greater reason for admission of illegally obtained evidence than the other great concerns involved in any criminal prosecution. The United States Supreme Court has ruled illegally seized evidence is inadmissible. Until that court changes its position we are bound by the principles set forth in their decisions.

I believe that State v. Shirley, 117 Ariz. 105, 570 P.2d 1278 (App.1977) is correct in its holding that the exclusionary rule is applicable to probation revocation proceedings. I would reverse the order of the trial court revoking appellant’s probation.

GORDON, Justice (dissenting): I concur in the dissent of Vice Chief Justice HOLOHAN.