December 2009 | Vol. 4, No. 1
Editor's Note: The following discussion of the exclusionary rule consists of three selections. The first provides H. Lee Harrell's analysis on the current status of the exclusionary rule, with a particular focus on the U.S. Supreme Court case Herring v. U.S. and on the Virginia Court of Appeals case Logan v. Commonwealth. The second and third selections are an exchange between Harrell and Jack E. Call, discussing points made in the analysis.
Feeling Left Out: The Exclusionary Rule in 2009
by H. Lee Harrell
Deputy Commonwealth's Attorney
Wythe County, VA
Time was when you were hailed into court for a suppression hearing your case was in big trouble if you lost. The defense attorney called you to testify about the stop or the search of his client. If he succeeded in demonstrating to the court that law enforcement somehow violated his client’s rights against unreasonable search and seizure, then the case would get thrown out, right? Maybe not now.
It has long been the belief that if a Fourth Amendment violation was established, any evidence that came into law enforcement’s possession after the violation would be suppressed. In the vast majority of such cases, the suppression was devastating to the prosecution’s case and resulted in a dismissal. Recent rulings from the Supreme Court of the United States and the Virginia Court of Appeals are changing these flawed presumptions.
The exclusionary rule has existed in one form or another since before our nation was formed. Ancient English common law, upon which our laws are formed, required suppression of evidence that was derived from unlawful state compulsion.1 The rule was given a backbone and teeth in Weeks v. U.S., 232 U.S. 383 (1914), where the Court precisely defined the rights granted under the Fourth Amendment and the remedy of suppression for flagrant violations. The rule was extended to state courts (by way of the fourteenth amendment) in Mapp v. Ohio, 367 U.S. 643 (1961). What the rule has never demanded is the kneejerk exclusion of evidence. Nevertheless, courts throughout Virginia have responded to the rule with just such a reflex. That appears to be changing.
The Supreme Court of the United States has long maintained that the exclusionary rule is not an “if/then” rule (if the fourth amendment is violated, then suppression of evidence must occur). Instead, the Court has historically and consistently held that, “[f]irst, the exclusionary rule is not an individual right and applies only where it ‘result[s] in appreciable deterrence.’”2 “We have repeatedly rejected the argument that exclusion is a necessary consequence of a fourth amendment violation.”3 The rule, instead, is to be deployed after a constitutional violation has been identified and after a court has determined that the deterrent effect of suppression outweighs the substantial cost to society.4 In weighing these competing interests, a court must look at the flagrancy and deliberateness of police misconduct.5
The idea of deterring police conduct by using the exclusionary rule is necessarily linked (or so says the Supreme Court of the United States) to the level of culpability on the part of law enforcement.6 The Court has long maintained that if police mistakes are derived from accidents or simple negligence, the deterrent effect of exclusion is lost.7
Seemingly growing weary of a reflexive application of the exclusionary rule, the Court in Herring v. U.S., 555 U.S. ____ 07513 (2009) makes clear the idea that a defendant seeking to suppress evidence must demonstrate that the police misconduct at issue results from “reckless disregard of constitutional requirements.” That makes good sense; drop the nuclear bomb of suppression only when the misconduct is intentional or grossly negligent. Herring was arrested based on a warrant that had been withdrawn (but the withdrawal had not been detected by the local sheriff’s office) and searched incident to arrest. The search revealed methamphetamine and a gun. Herring is a convicted felon. In analyzing the case, the Court underscores a requirement that police misconduct be both deliberate and sufficiently culpable to warrant deterrence by way of exclusion.8 This has always been the rule, but it seems to have been largely ignored by lower courts who have blithely suppressed evidence whenever constitutional violations occurred. The Court in Herring is saying: enough. Showing some impatience the Court says, “[i]n light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g. Leon, 468 U.S. at 909-910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way. Id. at 907-908 n. 6.’”9 Has the Court’s growing impatience had any effect on the way lower courts will handle fourth amendment violations?
The Virginia Court of Appeals in Logan v. Commonwealth10 seems to suggest that they have finally gotten the message. Logan was a probationer who was found with cocaine during a search for a wanted individual (not Logan). After a tortured appellate history, the Court of Appeals ruled that although the fourth amendment may have been violated by the police during the seizure of Logan, the misconduct at issue was neither deliberate nor sufficiently culpable to warrant exclusion of evidence.11 In fact, the Court recognized that the legal issue at hand (whether the common areas of a boarding house are protected by the fourth amendment) is a quagmire about which even the brightest legal minds could have divergent opinions.12 Accordingly, law enforcement could easily make a mistake in such a situation without being reckless or culpable. The Court stated, “[t]o be sure, in cases where experienced jurists disagree among themselves as to the legality of the police conduct, we can hardly expect law enforcement officers to predict which contesting juristic view will ultimately prevail and become binding precedent.”13 Given the standard re-announced in Herring, the Court in Logan found that although a technical violation of Logan’s fourth amendment rights may have occurred, suppression was not the appropriate remedy and upheld his probation violation.14
This is but one case. How courts throughout the Commonwealth adapt to the precedent of Herring remains to be seen. If they follow the Court’s dictates, there should be considerably less suppression of evidence. It is (fortunately) rare that police misconduct is intentional and deliberate. In cases of simple, honest mistakes, suppression of evidence should not be the remedy. The case should continue forward toward conviction despite the fact that the “constable has blundered.”15
 Davies, Thomas. “Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a 'Trial Right' in Chavez V. Martinez”, Tennessee Law Review, Volume 70, pages 987-1045 (2003).
 United States v. Leon, 468 U.S. 897 at 909 (1984) (quoting United States v. Janis, 428 U.S. 433 (1976).
 Illinois v. Krull, 480 U.S. 340, 352-353 (1987).
 See Mapp v. Ohio, 367 U.S. 643, 644-645 (1961).
 See Herring v. U.S., 555 U.S. ____ 07513 (2009) (holding that when police make mistakes that are caused by isolated negligence attenuated from the search, rather than from recklessness or abuse, the exclusionary rule is inapplicable).
 See United States v. Leon, 468 U.S. 897 at 922 (1984); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (stating that exclusion has, “always been our last resort, not our first impulse.”)
 Herring v. U.S., 555 U.S. ____ 07513 (2009).
 Herring v. United States, 555 U.S. ____ 07513 (2009)
 See LaFave, Search and Seizure: A Treatise on the Fourth Amendment (§1.3).
 Logan v. Com., 666 S.E.2d 346 (2008).
 Herring v. U.S., 555 U.S. ____ 07513 (2009).
 Logan v. Commonwealth, 53 Va. App. 520 (2009).
 547 U.S. 586, 591 (2006).
 “The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one.” Hudson v. Michigan, 547 U.S. 586, 589 (2006).