PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4905

DAVID MARK ARMSTRONG,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-91-526)

Argued: June 11, 1999

Decided: July 15, 1999

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judges Michael and Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Michael William Lieberman, Alexandria, Virginia, for
Appellant. Thomas More Hollenhorst, Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
OPINION

LUTTIG, Circuit Judge:

This case presents the question whether the exclusionary rule
applies in federal supervised release revocation hearings. For the rea-
sons that follow, we hold that it does not.

I.

In 1992, appellant David Mark Armstrong pled guilty in the United
States District Court for the Eastern District of Virginia to conspiracy
to possess and distribute cocaine and cocaine base. He was sentenced
to 210 months in prison and five years of supervised release. Pursuant
to a government motion under Fed. R. Crim. P. 35, his prison sen-
tence was subsequently reduced to 70 months.

On January 17, 1997, Armstrong was released from custody and
began his term of supervised release. On April 22, 1998, however, he
was arrested in Washington, D.C., after officers searching his vehicle
following a routine traffic stop discovered a loaded.38-caliber
revolver and 36 plastic bags containing 3.1 grams of cocaine base.
Armstrong was subsequently charged in the United States District
Court for the District of Columbia with possession with intent to dis-
tribute cocaine base, possession of a firearm by a convicted felon, and
using or carrying a firearm during a drug trafficking offense. Before
that court, Armstrong moved to suppress the evidence obtained during
the search of his car on the ground that the search was unreasonable
under the Fourth Amendment. On October 1, 1998, the district court
granted the motion, and soon thereafter the government dismissed the
charges against Armstrong.

Meanwhile, the government had filed a petition before the United
States District Court for the Eastern District of Virginia, seeking revo-
cation of Armstrong's supervised release. In response, Armstrong
contended that the exclusionary rule should operate in the revocation
proceeding and that, because the district court in the District of
Columbia had held that the search of Armstrong's car was unreason-
able, the government was collaterally estopped from challenging the

                    2
constitutionality of the search in the revocation proceeding. The dis-
trict court held that the exclusionary rule does not operate in federal
supervised release revocation proceedings, and therefore granted the
government's petition. See United States v. Armstrong, 30 F. Supp.
2d 901, 906 (E.D. Va. 1998). Armstrong appeals.

II.

A.

The district court based its conclusion that the exclusionary rule
does not apply in federal supervised release revocation proceedings
on the Supreme Court's recent decision in Pennsylvania Bd. of Pro-
bation and Parole v. Scott, 118 S. Ct. 2014 (1998). We agree with the
district court that the Supreme Court's decision in Scott compels such
a conclusion.

In Scott, the Supreme Court held that the exclusionary rule does not
apply in a state parole revocation hearing. See id. at 2022. In so decid-
ing, the Court undertook the familiar task of weighing the costs of
applying the exclusionary rule in a particular context against its bene-
fits. See, e.g., United States v. Calandra, 414 U.S. 338, 349-52
(1974).

The Court began by considering the costs of applying the exclu-
sionary rule. The Court first noted that, because of the high costs of
applying the exclusionary rule generally, it had"repeatedly declined
to extend the exclusionary rule to proceedings other than criminal tri-
als." Scott, 118 S. Ct. at 2019.1 The Court then proceeded to observe
that "[t]he costs of excluding reliable, probative evidence are particu-
larly high in the context of parole revocation proceedings." Id. at
2020. In support of this conclusion, the Court cited two rationales.
First, it observed that parole was simply a more lenient variation on
imprisonment, in which the government extended a limited degree of
freedom to a parolee in return for the parolee's assurance that he
_________________________________________________________________
1 See also Scott, 118 S. Ct. at 2020 ("[W]e are asked to extend the oper-
ation of the exclusionary rule beyond the criminal trial context. We again
decline to do so."); id. at 2020 n.4 ("[W]e have generally held the exclu-
sionary rule to apply only in criminal trials.").

                    3
would comply with the terms of his parole. See id. The Court rea-
soned that the application of the exclusionary rule would hamper the
government's ability to ensure such compliance and even deter the
government from offering parole in the first place, and it further noted
that the application of the exclusionary rule in the parole context
would be especially troublesome because parolees are more likely to
commit criminal offenses than are average citizens. See id. Second,
the Court concluded that the application of the exclusionary rule
would be "incompatible with the traditionally flexible, administrative
procedures of parole revocation." Id. Specifically, the Court reasoned
that the application of the exclusionary rule would often necessitate
extensive litigation and would thereby alter the relatively less adver-
sarial nature of parole revocation proceedings. See id. at 2021.

The Court then considered the benefits of applying the exclusion-
ary rule. The Court reasoned that applying the exclusionary rule
would have minimal, if any, deterrence benefits, since an officer
would already be deterred from violating a parolee's Fourth Amend-
ment rights because he would know that any violation would lead to
the application of the exclusionary rule in any subsequent criminal
proceedings for the offense being investigated, even if it did not in
any collateral parole revocation proceedings. See id. at 2021-22. The
Court concluded that any deterrence benefits did not outweigh the
substantial costs, and therefore refused to extend the exclusionary rule
to parole revocation proceedings. See id. at 2022.

Appellant contends that the reasoning of Scott is inapplicable to the
instant case on two grounds. First, appellant asserts that Scott
involved a parole revocation proceeding, whereas the instant case
involves a supervised release revocation proceeding. However, as we
have previously noted, parole and supervised release are "analogous
contexts." United States v. Woodrup , 86 F.3d 359, 361 (4th Cir.
1996). Indeed, Congress designed supervised release as the successor
to parole in the federal criminal system, because it believed that the
parole system provided inadequate supervision. See generally United
States v. Montenegro-Rojo, 908 F.2d 425, 432-33 (9th Cir. 1990)
(discussing history of supervised release statute). For purposes of the
rule established in Scott, moreover, parole and supervised release are
not just analogous, but virtually indistinguishable. As the district
court correctly noted, the costs and benefits of applying the exclusion-

                    4
ary rule to revocation proceedings are almost identical in the parole
and supervised release contexts. Although supervised release revoca-
tion proceedings, unlike parole revocation proceedings, do take place
before a judge, they are characterized by the same"flexibility" that
the Supreme Court found significant in Scott. As in parole revocation
proceedings, findings of fact are made under a preponderance-of-the-
evidence, rather than reasonable-doubt, standard, see 18 U.S.C.
§ 3583(e)(3); the traditional rules of evidence are inapplicable, see
Fed. R. Evid. 1101(d)(3); United States v. Frazier, 26 F.3d 110, 112-
14 (11th Cir. 1994) (concluding that Fed. R. Evid. 1101(d)(3) extends
to supervised release revocation proceedings); and the "full panoply
of constitutional protections afforded a criminal defendant" is not
available, Woodrup, 86 F.3d at 361.

Second, appellant contends that Scott is distinguishable because it
involved a state, rather than a federal, revocation proceeding. In Scott,
however, the Court did not find the fact that the proceeding was a
state proceeding determinative. Although the Court did suggest that
the application of the exclusionary rule would work an intrusion into
"States' correctional schemes," id. at 2021, the Court relied more
broadly on the "traditionally flexible, administrative" nature of parole
revocation schemes, id. at 2020 -- a description that, as noted above,
would fit federal revocation proceedings just as well as state ones.

In sum, because the reasoning of Scott applies equally to super-
vised release revocation proceedings as to parole revocation proceed-
ings, and to federal proceedings as to state proceedings, we agree with
the district court that Scott requires that the exclusionary rule not be
extended to federal supervised release revocation proceedings.

B.

The district court further concluded that the Supreme Court's deci-
sion in Scott effectively superseded our decision in United States v.
Workman, 585 F.2d 1205 (4th Cir. 1978). We agree.

In Workman, we held that the exclusionary rule applies in federal
probation revocation hearings. See id. at 1211. Like the Supreme
Court in Scott, we applied the cost-benefit balancing test outlined by
the Court in Calandra. See id. at 1209. We reasoned that "an inferior

                     5
court," rather than engaging in such a balancing inquiry from scratch,
"should . . . compar[e] revocation hearings with other instances where
the Supreme Court has considered the rule's application." Id. at 1210.
Because "the Supreme Court ha[d] never exempted from the opera-
tion of the exclusionary rule any adjudicative proceeding in which the
government offers unconstitutionally seized evidence in direct sup-
port of a charge that may subject the victim of a search to imprison-
ment," id. at 1211, we concluded that the exclusionary rule was
applicable in federal probation revocation hearings, see id.

At the outset, we acknowledge that probation, like parole, is "anal-
ogous" to supervised release, see Woodrup, 86 F.3d at 361, and there-
fore that the rule in Workman would appear to be applicable in this
case. As the district court correctly noted, however, "[i]t follows ines-
capably from Workman's teachings that the Fourth Circuit panel in
Workman, under its own analysis, would reach a different result
today." Armstrong, 30 F. Supp. 2d at 904. Indeed, by suggesting that
"an inferior court should . . . compar[e] revocation hearings with other
instances where the Supreme Court has considered the rule's applica-
tion," Workman, 585 F.2d at 1210, we expressly contemplated the
possibility that the rule we set out in Workman would evolve in tan-
dem with the Supreme Court's exclusionary-rule jurisprudence. And
today, our assertion in Workman that "the Supreme Court has never
exempted from the operation of the exclusionary rule any adjudicative
proceeding in which the government offers unconstitutionally seized
evidence in direct support of a charge that may subject the victim of
a search to imprisonment," id. at 1211, is unquestionably no longer
correct. Even before the Supreme Court's decision in Scott, the Court
had substantially limited the applicability of the exclusionary rule,
even in the context of criminal trials themselves. See Scott, 118 S. Ct.
at 2020 n.4 (listing cases, most notably United States v. Leon).2 We
therefore conclude that our decision in Workman has effectively been
superseded by the Supreme Court's recent decision in Scott, if it had
not been already by the Supreme Court's prior decisions. See
generally Smith v. Moore, 137 F.3d 808, 821 (4th Cir.) (noting that
_________________________________________________________________
2 In fact, largely as a result of the Supreme Court's intervening limita-
tions on the exclusionary rule, at least one district court in this circuit had
refused to apply the rule we established in Workman even before Scott.
See Pratt v. United States Parole Comm'n, 717 F. Supp. 382, 385
(E.D.N.C. 1989) (adopting memorandum of magistrate judge).

                    6
"[i]t is well established that a decision of this Court is binding on
other panels unless it is overruled by . . . an intervening decision of
the United States Supreme Court"), cert. denied, 119 S. Ct. 199
(1998). Accordingly, we reaffirm our conclusion, on the basis of
Scott, that the exclusionary rule does not apply in supervised release
revocation proceedings.3

III.

The district court further concluded that appellant was in construc-
tive possession of the gun and drugs when they were discovered in
the course of the search of his car. We agree.

A person has constructive possession over contraband when he has
ownership, dominion, or control over the contraband itself or over the
premises or vehicle in which it was concealed. See, e.g., United States
v. Blue, 957 F.2d 106, 107 (4th Cir. 1992) (en banc). In this case, as
the district court noted, not only did appellant own the car in which
the contraband was concealed, but appellant was the only person in
the car when it was stopped, the gun was under a floormat on the
driver's side, and the drugs were located in a compartment to the left
of the steering wheel. When taken together, these findings amply sup-
port the district court's conclusion that appellant constructively pos-
sessed the gun and drugs found during the search.

The judgment of the district court is affirmed.

AFFIRMED
_________________________________________________________________
3 In passing, we note that, even before Scott, all of our sister circuits
that had considered the question had held that the exclusionary rule was
not applicable in revocation hearings. See United States ex rel. Sperling
v. Fitzpatrick, 426 F.2d 1161, 1163-64 (2d Cir. 1970) (parole); United
States v. Bazzano, 712 F.2d 826, 830-34 (3d Cir. 1983) (probation);
United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973) (per curiam)
(probation); United States v. Farmer , 512 F.2d 160, 162-63 (6th Cir.
1975) (probation); United States v. Hill, 447 F.2d 817, 818-19 (7th Cir.
1971) (probation); United States v. Frederickson, 581 F.2d 711, 713 (8th
Cir. 1978) (per curiam) (probation); United States v. Winsett, 518 F.2d
51, 53-55 (9th Cir. 1975) (probation); United States v. Finney, 897 F.2d
1047, 1048 (10th Cir. 1990) (probation).

                    7
