The Champion

December 2007 , Page 55 

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Appellate Advocacy

By James E. Neuman

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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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