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By James E. Neuman
Appellate Advocacy columns.
Moore v. Virginia - The Supreme Court Confronts Federalism and The Fourth Amendment
On September 25, 2007, the U.S. Supreme Court agreed to consider an
issue that has, to some degree, divided both state and federal appellate
courts for years: namely, does the Fourth Amendment require the
suppression of evidence obtained incident to an arrest that is based
upon probable cause, but violates a provision of state law? Put more
broadly, the question is whether the federal Constitution provides a
criminal defendant with a remedy for a state statutory violation.
Adopting the minority view, the Virginia Supreme Court held in Moore v.
Commonwealth1 that the defendant could invoke the Fourth Amendment’s
exclusionary rule to suppress evidence that was seized during a search
incident to an arrest where the state statute authorized the police only
to issue a citation. By granting certiorari, however, it appears that
the Supreme Court may be primed to overrule that decision,
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