5.6 THE EXCLUSIONARY RULE

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

5.6 THE EXCLUSIONARY RULE

5.601 History and Development.

The Fourth Amendment itself provides no direct guidance to courts about the consequences of an illegal search and seizure. However, the Supreme Court, early in the development of Fourth Amendment standards, held that evidence obtained in violation of the Fourth Amendment's substantive prohibitions cannot be used by the government at trial. ¹¹⁴⁹ The earlier cases, however, did not definitely describe the "source" of the exclusionary rule, nor did they provide definitive guidance concerning the reason for the rule. Thus, it was unclear whether the Court was fashioning a constitutional rule or, rather, was merely promulgating a judicially created rule in the nature of a rule of evidence. It was also unclear whether the exclusionary rule was designed to deter future unlawful conduct by the police, under the premise that if it is known that the evidence will be inadmissible there will be no incentive to engage in illegal activities, or, rather, was designed to avoid judicial sanction or participation in illegal government activities.

Ever since the Court first applied the exclusionary rule to the activities of state law enforcement officials in Mapp v. Ohio, ¹¹⁵⁰ there has been pressure on the Court to modify the harshness of the rule. Although the Court continues to apply the rule to exclude the direct fruits of illegal warrantless searches, the Court has created a "good faith" exception for searches made under the authority of a search warrant. Moreover, the Court has made it clear that the exclusionary rule is a judicially created remedy designed to deter future illegal actions by the government, rather than a constitutional mandate. ¹¹⁵¹

5.602 Motions to Suppress.

Under Virginia Code section 19.2-60, "[a] person aggrieved by an allegedly unlawful search or seizure may move the court to return any seized property and to suppress it for use as evidence." That section also provides that if the motion is granted by a court of record, any seized property shall be restored as soon as practicable unless otherwise subject to lawful detention, and such property shall not be admissible in evidence at any hearing or trial; if granted by a court not of record, such property shall not be admissible in evidence at any hearing or trial before that court, but the ruling shall have no effect on any hearing or trial in a court of record. The scope and content of a motion to suppress and the supporting memorandum of points and authorities filed with it both depend on the evidence that defendant seeks to exclude and the proceeding in connection with which the challenged evidence was obtained, for example: (i) motions that list several kinds of evidence, including both items seized and confessions; ¹¹⁵² (ii) motions to suppress items seized from a particular location, such as a residence ¹¹⁵³ or vehicle; (iii) motions to suppress items taken from a computer; ¹¹⁵⁴ (iv) motions relating to a warrantless arrest; ¹¹⁵⁵ and (v) motions relating to a Terry stop. ¹¹⁵⁶

5.603 Proceedings to Which the Rule Is Applicable.

The exclusionary rule still operates in most cases to exclude the direct fruits of illegally obtained evidence in a criminal trial on the issue of guilt or innocence. The application of the rule to other procedural components of a criminal case, or to civil cases, is unclear. Despite the fact that "deterrence" would likely be furthered by an across-the-board ban on the use of illegally obtained evidence, the Supreme Court has limited application of the rule in forums other than a criminal trial. For example, in United States v. Calandra, ¹¹⁵⁷ the Court refused to apply the exclusionary rule to grand jury proceedings. In United States v. Janis, ¹¹⁵⁸ the Court held that evidence illegally seized by state officials can be used by federal officials in a civil tax case. In Immigration and Naturalization Service v. Lopez-Mendoza, ¹¹⁵⁹ the Court refused to apply the exclusionary rule to deportation proceedings. On the other hand, the Court has applied the exclusionary rule to a "quasi-criminal" forfeiture proceeding. ¹¹⁶⁰

No Supreme Court case definitively resolves the application of the exclusionary rule in other contexts. There is a split of authority in lower courts concerning the admissibility of illegally obtained evidence at a sentencing hearing. ¹¹⁶¹ The Virginia Court of Appeals, however, has held that the rule does not apply in sentencing proceedings ¹¹⁶² or in probation or suspended sentence revocation hearings. ¹¹⁶³ The Virginia Supreme Court has held that the exclusionary rule does not apply in civil proceedings. ¹¹⁶⁴

5.604 Exceptions to the Exclusionary Rule.

Early in the development of the exclusionary rule, the Supreme Court made it clear that not only does the exclusionary rule prohibit the use of the direct products of an illegal search and seizure, it also prohibits the use of the indirect "fruits." ¹¹⁶⁵ In the case in which the metaphor "fruit of the poisonous tree" first appeared, the Court stated that "to forbid the direct use of methods [but] to put no curb on their full indirect use would only invite the very methods deemed 'inconsistent'" with the constitutional standard. ¹¹⁶⁶

The United States Supreme Court has progressively eroded the application of the exclusionary rule with a number of exceptions, stating, "Suppression of evidence, however, has always been our last resort, not our first impulse." ¹¹⁶⁷ In Hudson v. Michigan, the Court ruled that the costs of the rule have led it to be deemed "applicable only . . . where its deterrence benefits outweigh its substantial social costs." ¹¹⁶⁸ The Court initially qualified the exclusionary rule in United States v. Leon, ¹¹⁶⁹ ruling, "[W]hen law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system." ¹¹⁷⁰ More recently, the Court has indicated that there are three separate bases for exceptions to the exclusionary rule involving the causal relationship between the unconstitutional act and the discovery of evidence: (i) the Independent Source Doctrine, (ii) the Inevitable Discovery Doctrine, and (iii) The Attenuation Doctrine. ¹¹⁷¹

5.605 The "Good Faith" Exception.

In Leon, ¹¹⁷² the Supreme Court held that when a police officer acting in good faith obtains a search warrant and the officer's reliance on the warrant is "objectively reasonable," the exclusion of evidence seized under the warrant is inappropriate. The good faith exception is limited to searches under a warrant. Even for searches under a warrant, exclusion of evidence is still appropriate when: (i) the issuing magistrate is presented with information known to be false or information provided with reckless disregard for its truth; (ii) the issuing magistrate abandons his or her neutral judicial role; (iii) the officer relies on a warrant "so lacking in indicia of probable cause" as to render belief in its existence unreasonable; or (iv) the officer relies on a warrant so facially deficient that he or she could not reasonably presume it to be valid. The fact that the magistrate lacks a substantial basis for finding probable cause does not mean that the warrant is so lacking in indicia of probable cause as to render an officer's belief in its existence unreasonable. It is entirely possible that an affidavit could be insufficient for probable cause but sufficient for good faith reliance. ¹¹⁷³

For the next several decades, exceptions to the exclusionary rule were based on a "good faith" analysis. ¹¹⁷⁴ In Massachusetts v. Sheppard, ¹¹⁷⁵ the Supreme Court upheld a search based on an erroneous warrant form approved by a neutral magistrate, holding that, although an error of constitutional dimensions may have been committed with respect to the issuance of the warrant in this case, it was the judge, not the police officer, who made the critical mistake. Suppressing evidence because the judge failed to make all the necessary clerical corrections despite his assurance that such changes would be made did not serve the deterrent function that the exclusionary rule was designed to achieve. In Herring v. United States, ¹¹⁷⁶ the Court held that the exclusionary rule did not apply to a search pursuant to a rescinded search warrant where the error resulted from "isolated negligence attenuated from the arrest" rather than from systemic error or reckless disregard of constitutional rights. However, in United States v. Rush, ¹¹⁷⁷ the Fourth Circuit Court of Appeals made it clear that the "good faith exception" would not apply where the officer deliberately lied to the defendant, telling him that there was a search warrant, even though the officer knew that his statement was not true. In Davis v. United States, ¹¹⁷⁸ the Court held that a search conducted in reasonable reliance on binding appellate precedent is not subject to the exclusionary rule.

The United States Supreme Court has applied the "good faith" exception to warrantless searches in several cases. ¹¹⁷⁹ After its decision in Arizona v. Gant, ¹¹⁸⁰ the Court, in Davis v. United States, upheld the admission of evidence seized from a vehicle after the driver had been removed from the vehicle and arrested, because the police relied in good faith on existing and binding judicial precedent. ¹¹⁸¹ The Court has upheld the admission of evidence seized pursuant to an administrative statutory scheme subsequently declared unlawful. The Court held that exclusion of evidence is not necessary to deter legislators from violating the Constitution by enacting unconstitutional legislation, especially when the statutory scheme was not enacted for the purpose of procuring evidence in criminal investigations. ¹¹⁸² The Court has also refused to suppress evidence derived from an illegal arrest even though the arrest was based on a computer record...