There is an interesting issue up before the Supreme Court of Virginia that is a case of first impression. The case is Moore v. Commonwealth; but you’ll have to wait a few weeks before the opinion comes out. The issue that the Supreme Court heard argument on is whether a violation of state law plays any part in determining a Fourth Amendment violation triggering the Exclusionary Rule.
The Exclusionary Rule precludes evidence seized in violation of an individual’s constitutional rights from being used to convict of a crime. The rule is most often applied when police conduct an illegal search or seizure. The rule was first applied to federal courts in 1914 by the decision in Weeks v. United States. In Wolf v. Colorado, the Supreme Court applied the rule to the states.
In Knowles v. Iowa, the Supreme Court held that there is no search incident to citation exception. In other words, when there are minor citations an officer cannot search someone without a warrant. However, the Supreme Court has also held in Atwater v. City of Lago Vista, that when a state has a statute that allows for arrest of misdemeanors without a warrant, there is no constitutional violation.
Atwater was a case in Texas. In Virginia, the rule is that an officer cannot arrest someone for a misdemeanor unless it was committed in the officer’s presence. In the current case of Moore before the Virginia Supreme Court, the officer arrested an individual for a misdemeanor that was not committed in his presence. Incident to the arrest, the officer searched and seized evidence that was used to convict of a crime. The actual arrest was a violation of state law, rather then constitutional law. Thus, whether the exclusionary rule would apply is at issue.
The Virginia Supreme Court could hold a number of ways on this case. It is most likely that the court will hold that a violation of state law, does not trigger the Exclusionary Rule, and the evidence seized in violation of the law can be used to convict of a crime.
The court could also analogize with Knowles, and decide that where a state does not provide a statute that allows for arrest of misdemeanors without a warrant, an officer cannot search and seize evidence for minor citations even if the officer arrests the individual, when the arrest violates state law.
The most unlikely outcome, but in some ways the most logical, the court could examine the reasons for the Exclusionary Rule and decide whether the state of Virginia should apply the rule to police conduct that violates state law. Although some would argue that the Exclusionary Rule potentially allows criminals to go free, the Rule has several benefits and advantages over other remedies. First, the Rule protects privacy by discouraging police from breaking the law, and encouraging them to obtain warrants. Second, the Rule provides a check on unfettered government power. Third, in practice Courts have found that the Rule is the only effective deterrent. See Wolf for Supreme Court's discussion on the Exlusionary Rule.