exclusionary rule in Virginia

2026In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court of the United States “limited the application of the exclusionary rule ‘so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’” Adams, 275 Va. at 268 (quoting Leon, 468 U.S. at 905 ).

2026In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court of the United States “limited the application of the exclusionary rule ‘so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’” Adams, 275 Va. at 268 (quoting Leon, 468 U.S. at 905 ).

2025“The purpose of the exclusionary rule historically was to deter police misconduct rather than to punish the errors of magistrates.” Derr v. Commonwealth, 242 Va. 413, 422 (1991).

2025This approach serves the purpose of the exclusionary rule to “deter police misconduct” while avoiding the effect of an overly broad application disincentivizing police officers “acting in objective good faith.” Id. at 272 (first quoting Leon, 468 U.S. at 916 ; and then quoting Derr v. Commonwealth, 242 Va. 413, 422 (1991)).

2026“This is particularly true . . . when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” Id.; see also Bellamy v. Commonwealth, 60 Va. App. 125, 133 (2012) (explaining that when an officer does not commit a “systemic error or [exhibit] reckless disregard of constitutional requirements,” the exclusionary rule’s deterrence effect is not furthered (quoting Herring, 555 U.S. at 147-48 )).

2026See Washington v. Commonwealth, 60 Va. App. 427, 435 (2012) (“[T]he ‘fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies.’” (quoting Herring v. United States, 555 U.S. 135, 140 (2009))). “[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Janis v. Commonwealth, 22 Va. App. 646, 653 (1996) (alteration in original) (quoting Leon, 468 U.S. at 916 ).

2026This exception recognizes that the deterrent effect provided by the exclusionary rule simply “is not present when a police officer, acting in objective good faith, obtains a search warrant from a magistrate and conducts a search within the scope of th[at] warrant.” Id. (quoting Polston, 255 Va. at 503 ).

2026The exclusionary rule, which serves as the basis for suppressing unconstitutionally seized evidence, is “designed to deter police misconduct.” Polston, 255 Va. at 503 (quoting United States v. Leon, 468 U.S. 897, 916 (1984)).

2025Under this exception to the exclusionary rule, the Commonwealth must prove: “‘(1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct’ and ‘(2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct.” Carlson, 69 Va. App. at 763 (quoting Commonwealth v. Jones, 267 Va. 532, 536 (2004)).

2025“Ordinarily, evidence obtained as the result of an unlawful search [or seizure] is subject to suppression under the exclusionary rule.” Commonwealth v. Jones, 267 Va. 532, 535 (2004).

2024Application of the Exclusionary Rule The Commonwealth alternatively contends that the circuit court erred by not applying the good-faith exception to the exclusionary rule.5 The judicially created exclusionary rule “prevents evidence obtained in violation of the [F]ourth [A]mendment from being used against an accused.” Redmond v. Commonwealth, 57 Va. App. 254, 261 (2010) (quoting Commonwealth v. Ealy, 12 Va. App. 744, 750 (1991)).

2024Similarly, the exclusionary rule does not apply if the connection between the challenged evidence and the unlawful search is “attenuated [so] as to dissipate the taint.” Id. (quoting Murray, 487 U.S. at 537 ) (noting that the derivative evidence principle is the foundation of the fruit-of-the-poisonous tree doctrine).

2024“The exclusionary rule operates not only against evidence seized and information acquired during an unlawful search or seizure but also against derivative evidence discovered because of the unlawful act.” Warlick v. Commonwealth, 215 Va. 263, 265 (1974) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). -6- On appeal, Harris argues that the search of his person while detained by police was improper, because the officers unlawfully entered Evron’s home in violation of the Fourth Amendment, and therefore, any evidence seized as a result of that entry and his detention on susp

2014“The exclusionary rule operates not only against evidence seized and information acquired during an unlawful search or seizure but also against derivative evidence discovered because of the unlawful act.” Warlick v. Commonwealth, 215 Va. 263, 265 , 208 S.E.2d 746, 748 (1974); Murray v. United States, 487 U.S. 533, 536-37 , 108 S. Ct. 2529, 2532 , 101 L.

2025“The exclusionary rule is a self-limiting, ‘prudential’ doctrine whose ‘sole purpose . . . is to deter future Fourth Amendment violations.’” Id. at 214 (alteration in original) (quoting Davis v. United States, 564 U.S. 229 , 236-27 (2011)).

2024Citing Davis v. United States, 564 U.S. 229 (2011), the Commonwealth argues on brief that because “Detective Hyde did not engage in any purposeful misconduct or gross negligence . . . [and therefore] excluding the evidence recovered from the bloody clothing [would provide] no deterrent effect.” The Commonwealth further cites Herring v. United States, 555 U.S. 135, 141 (2009), for the proposition that “the exclusionary rule is not an individual right and applies only where it ‘result[s] in appreciable deterrence.’” In Herring, a police officer, reasonably relying on a belief that “there [wa]s a

2018“The exclusionary rule enjoins the Government from -7- benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality.” Id.

2017As this Court held in Baker v. Commonwealth, 57 Va. App. 181, 194 , 700 S.E.2d 160, 166 (2010), “Ordinarily, evidence obtained as the result of an unlawful search is subject to suppression under the exclusionary rule.” “However, not all illegally obtained evidence is - 12 - subject to suppression.” Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

2025When, as here, the defendant commits “‘new and distinct criminal acts’ during an allegedly unlawful police encounter, ‘the exclusionary rule does not apply, and evidence of the events constituting the new criminal activity, including testimony describing the defendant’s own actions, is admissible.’” Testa v. Commonwealth, 55 Va. App. 275, 283 (2009) (quoting Brown, 44 Va. App. at 600 ); see also United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997) (holding that the exclusionary rule -4- is inapplicable to “a new, distinct crime” occurring during an allegedly unlawful detention).

2025Even assuming for argument’s sake that the officers’ warrantless entry was unlawful, the exclusionary rule does not prohibit “testimony describing the defendant’s own illegal actions following an unlawful search or seizure.” Brown v. City of Danville, 44 Va. App. 586, 599 (2004).

2024Case law makes clear that the exclusionary rule should apply if “the warrant was so facially deficient that an . . . officer could not reasonably have assumed it was valid.” Lynch v. Commonwealth, 39 Va. App. 89, 93 (2002) (quoting Atkins v. Commonwealth, 9 Va. App. 462, 464 (1990)).

2023See Atkins v. Commonwealth, 9 Va. App. 462, 464 (1990) (“Under the good faith exception [to the exclusionary rule] evidence illegally seized is admissible if the officer conducting the search reasonably relied on a search warrant issued by a detached and neutral magistrate.”). - 11 -

2022“Exclusion of evidence is a last resort rather than first impulse.” Id. (citing Hudson v. Michigan, 547 U.S. 586, 591 (2006)). -6- The inevitable discovery doctrine is an exception to the exclusionary rule and allows “evidence obtained by unlawful means [to be admitted] if that evidence or information ‘ultimately or inevitably would have been discovered by lawful means.’” Id. at 763 (quoting Commonwealth v. Jones, 267 Va. 532, 536 (2004)).

2022“Exclusion of evidence is a last resort rather than first impulse.” Id. (citing Hudson v. Michigan, 547 U.S. 586, 591 (2006)). -6- The inevitable discovery doctrine is an exception to the exclusionary rule and allows “evidence obtained by unlawful means [to be admitted] if that evidence or information ‘ultimately or inevitably would have been discovered by lawful means.’” Id. at 763 (quoting Commonwealth v. Jones, 267 Va. 532, 536 (2004)).

2025“Under Virginia law, no suppression of evidence is required when evidence is obtained in violation of state law but when no constitutional violation has occurred.” Penn v. Commonwealth, 13 Va. App. 399, 407 (1991), aff’d per curiam, 244 Va. 218 (1992). “[T]he Virginia Supreme Court has consistently declined to impose an exclusionary rule where no deprivation of the defendant’s constitutional rights occurred.” Thompson v. Commonwealth, 10 Va. App. 117, 122 (1990).

2014The use of the word “shall,” however, does not ipso facto require this Court to draw the conclusion that the statute is mandatory, rather than directory. “ ‘While violations of state procedural statutes are viewed with disfavor, ... neither the Virginia Supreme Court nor the legislature has adopted an exclusionary rule for such violations ... where no deprivation of the defendant’s constitutional rights occurred.’ ” West v. Commonwealth, 16 Va.App. 679, 692 , 432 S.E.2d 730, 738 (1993) (quoting Thompson v. Commonwealth, 10 Va.App. 117, 122 , 390 S.E.2d 198, 201 (1990)). *722 For example, in Bu

2016In other words, [s]ince “the purpose of the exclusionary rule [i]s to deter police misconduct,” Johnson v. Commonwealth, 21 Va. App. 172, 175 , 462 S.E.2d 907, 909 (1995), the remedy of excluding illegally obtained evidence is available only when the evidence is “obtained either during or as a direct result” of the illegal search or seizure, Wong Sun, 371 U.S. at 485 .

2016In other words, [s]ince “the purpose of the exclusionary rule [i]s to deter police misconduct,” Johnson v. Commonwealth, 21 Va. App. 172, 175 , 462 S.E.2d 907, 909 (1995), the remedy of excluding illegally obtained evidence is available only when the evidence is “obtained either during or as a direct result” of the illegal search or seizure, Wong Sun, 371 U.S. at 485 .

2025“The exclusionary rule is a self-limiting, ‘prudential’ doctrine whose ‘sole purpose . . . is to deter future Fourth Amendment violations.’” Id. at 214 (alteration in original) (quoting Davis v. United States, 564 U.S. 229 , 236-27 (2011)).

2024The exclusionary rule is applicable only where “‘a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’” Collins v. Commonwealth, 297 Va. 207 , 215 (2019) (quoting Herring v. United States, 555 U.S. 135, 145 (2009)).

2024Similarly, the exclusionary rule does not apply if the connection between the challenged evidence and the unlawful search is “attenuated [so] as to dissipate the taint.” Id. (quoting Murray, 487 U.S. at 537 ) (noting that the derivative evidence principle is the foundation of the fruit-of-the-poisonous tree doctrine).

2024Accordingly, “[t]he rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.” Id. at 141 (second alteration in original) (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364-65 (1998)). - 13 - By extension, “the exclusionary rule also prohibits the introduction of derivative evidence . . . that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search.” Murray v. United States, 487 U.S. 533, 536-37 (1988).

2026See Knight v. Commonwealth, 71 Va. App. 771 , 787 (2020) (explaining that the inevitable discovery doctrine is an exception to the exclusionary rule that applies when evidence is “obtained by unlawful means” but “ultimately or inevitably would have been discovered by lawful means” (emphasis added) (quoting Carlson v. Commonwealth, 69 Va. App. 749, 763 (2019))). - 14 - Chaney, J., concurring in part and dissenting in part.

2026The purpose of the exclusionary rule is to deter police misconduct, and where that purpose is not met, exclusion generally is not justified.” Id. at 759 (citation omitted).

2023See United States v. Calandra, 414 U.S. 338, 347 (1974) (fruits of an unlawful search “cannot be used in a criminal proceeding against the victim of the illegal search and seizure”); Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to state criminal proceedings).

2019The exclusionary rule, created with the intent of deterring police misconduct, “operates ‘as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than [to protect] a personal constitutional right of the party accused.’” United States v. Leon, 468 U.S. 897, 906 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

2026In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court of the United States “limited the application of the exclusionary rule ‘so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’” Adams, 275 Va. at 268 (quoting Leon, 468 U.S. at 905 ).

2025“The purpose of the exclusionary rule is to ‘deter police misconduct rather than to punish the errors of judges and magistrates.’” Adams v. Commonwealth, 275 Va. 260, 272 (2008) (quoting United States v. Leon, 468 U.S. 897, 916 (1984)).

2026Since the exclusionary rule is aimed at deterrence, “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Ward v. Commonwealth, 273 Va. 211, 224-25 (2007) (quoting Leon, 468 U.S. at 919-21 ).

2025But in United States v. Leon, 468 U.S. 897 (1984), “the United States Supreme Court established a good-faith exception to the exclusionary rule, applicable when a search is conducted pursuant to a warrant subsequently determined to be defective for Fourth Amendment purposes.” Ward v. Commonwealth, 273 Va. 211, 222 (2007).

2025When, as here, the defendant commits “‘new and distinct criminal acts’ during an allegedly unlawful police encounter, ‘the exclusionary rule does not apply, and evidence of the events constituting the new criminal activity, including testimony describing the defendant’s own actions, is admissible.’” Testa v. Commonwealth, 55 Va. App. 275, 283 (2009) (quoting Brown, 44 Va. App. at 600 ); see also United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997) (holding that the exclusionary rule -4- is inapplicable to “a new, distinct crime” occurring during an allegedly unlawful detention).

2024We have held that “[t]he exclusionary rule does not . . . prohibit testimony describing the defendant’s own illegal actions following an unlawful search or seizure.” Brown v. City of Danville, 44 Va. App. 586, 599 (2004). “‘[I]f a person engages in new and distinct criminal acts’ during an allegedly unlawful police encounter, ‘the exclusionary rule does not apply, and evidence of the events constituting the new criminal activity, including testimony describing the defendant’s own -6- actions, is admissible.” Testa v. Commonwealth, 55 Va. App. 275, 283 (2009) (quoting Brown, 44 Va. App. at 600

2026“This exclusionary rule is supplemented by the ‘fruit of the poisonous tree’ doctrine, which bars the admissibility of evidence which police derivatively obtain from an unconstitutional search or seizure.” Id. -7- However, “[t]he [F]ourth [A]mendment does not proscribe all seizures, only those that are ‘unreasonable.’” Hodnett v. Commonwealth, 32 Va. App. 684, 690 (2000) (second and third alterations in original) (quoting Welshman v. Commonwealth, 28 Va. App. 20, 30 (1998) (en banc)).

2023See United States v. Calandra, 414 U.S. 338, 347 (1974) (fruits of an unlawful search “cannot be used in a criminal proceeding against the victim of the illegal search and seizure”); Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to state criminal proceedings).

2022Nix described the independent-source doctrine as an exception to the exclusionary rule to “put[] police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.” 467 U.S. at 443 .

2022The exclusionary rule does not operate to “put the police in a worse position than they would have been in if no unlawful conduct had transpired.” Id. at 445 .

2026See Washington v. Commonwealth, 60 Va. App. 427, 435 (2012) (“[T]he ‘fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies.’” (quoting Herring v. United States, 555 U.S. 135, 140 (2009))). “[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Janis v. Commonwealth, 22 Va. App. 646, 653 (1996) (alteration in original) (quoting Leon, 468 U.S. at 916 ).

2025And “our Supreme Court has steadfastly refused to extend” the exclusionary rule “to encompass evidence seized pursuant to statutory violations, absent an express statutory provision for suppression.” Weaver v. Commonwealth, 29 Va. App. 487, 492 (1999) (quoting Janis v. Commonwealth, 22 Va. App. 646, 651 (1996)).

2024The exclusionary rule is “not ‘a personal constitutional right,’” but a “judicially created remedy” “whose ‘sole purpose . . . is to deter future Fourth Amendment violations.’” Collins v. Commonwealth, 297 Va. 207 , 214 (2019) (alteration in original) (first quoting Stone v. Powell, 428 U.S. 465, 486 (1976); and then quoting Davis v. United States, 564 U.S. 229, 236-37 (2011)).

1977But cf. Stone v. Powell, 428 U.S. 465 (1976), which held that a federal court need not apply the exclusionary rule on habeas corpus review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review.

2025When, as here, the defendant commits “‘new and distinct criminal acts’ during an allegedly unlawful police encounter, ‘the exclusionary rule does not apply, and evidence of the events constituting the new criminal activity, including testimony describing the defendant’s own actions, is admissible.’” Testa v. Commonwealth, 55 Va. App. 275, 283 (2009) (quoting Brown, 44 Va. App. at 600 ); see also United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997) (holding that the exclusionary rule -4- is inapplicable to “a new, distinct crime” occurring during an allegedly unlawful detention).

2016We recognize that the language in this case used broad language describing the new and distinct crime exception to the exclusionary rule by stating, “Because the arrest for the new, distinct crime is lawful, evidence seized in a search incident to that lawful arrest is admissible.” Sprinkle, 106 F.3d at 619 .

2023Failing to impose the exclusionary rule here would reward “a ‘sloppy study of the law.’” Jones, 71 Va. App. at 384 (quoting Heien, 574 U.S. at 67).

2023Relying on Heien v. North Carolina, 574 U.S. 54 , 67 (2014), for the premise that “[a]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce,” we found that “failure to apply the exclusionary rule in this instance would reward just such a ‘sloppy study of the law,’” Jones, 71 Va. App. at 384. 14 At the same time, Deputy Tharp did arrest the driver of the vehicle who also said he was sick after being in a household of people with COVID-19, including Parady. - 16 - Here, Deputy Tharp mistakenly believed he could search Parady without a war

2024After reviewing the record, we conclude that the Commonwealth invoked the good-faith exception to the exclusionary rule sufficiently to preserve the issue for appeal. -9- application.” Id. at 141 (second alteration in original) (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364-65 (1998)).

2024See also Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357 , 364 n.4 (1998) (“[W]e have generally held the exclusionary rule to apply only in criminal trials.