For the second time in as many weeks, the Virginia Court of Appeals has declined to suppress evidence obtained as a result of unconstitutional police actions.
The Fourth Amendment to the United States constitution states that people shall not be subject to unreasonable searches and seizures. But, the Fourth Amendment does not say how judges should enforce that rule. The Exclusionary Rule was created by judges who believed that the only way to prevent the police from violating the Fourth Amendment was to deprive the prosecution of the evidence obtained as “fruits” of an illegal search or seizure. In recent years, legal observers have noted a growing movement among judges to limit the application of the “Exclusionary Rule.” Following the United States Supreme Court’s ruling in Herring v. United States, 555 U.S. 135, 141 & n.2 (2009), it seems that the movement to limit the Exclusionary Rule has become mainstream. Last week, the Virginia Court of Appeals ruled that a trial court should not exclude evidence obtained by police who arrest an individual on a warrant that had already been served.
This week, in Echevarry v. Commonwealth (published May 15, 2012), the Court of Appeals again published an opinion in which it held that a trial court should not suppress evidence obtained as the result of an illegal entry into a home, because the evidence obtained was “too attenuated” from the constitutional violation. The Court held that it was irrelevant that the evidence would not have been obtained but for the unconstitutional acts of the police officers. Instead, the court found that the police actions were not directed toward obtaining the marijuana and heroin found in Mr. Echevarry’s wallet during a routine search of Mr. Echevarry by Sheriff’s deputies at the local jail after Echevarry had been arrested for a domestic assault. The Court held that the relationship between the illegal arrest by police and the later legal search of Echevarry by deputies of another branch of law enforcement were so attenuated as to make it unreasonable to suppress the evidence.
The legal doctrines used by the Court of Appeals to affirm these convictions are not novel and have been embraced by the United States Supreme Court. That said, it is unusual to see the Exclusionary Rule abrogated twice in such a short time. This may be a sign of an emerging pattern, and if so it would be a departure from the generally held view that the Exclusionary Rule should be applied in most cases where the police obtain evidence through unconstitutional means.