VA, concurring: State statute may provide exclusion where 4A doesn’t

The prior appeal was law of the case on application of exigent circumstances to justify the search. Campbell v. State, 294 Va. 486, 807 S.E.2d 735 (2017). On remand, defendant claimed another version of how the search was invalid because, under state statute, the search warrant was invalid for failure of the magistrate to file it with the court, but, again, law of the case controlled that the evidence was admissible under an exception to the exclusionary rule. A concurring judge reminded that the Fourth Amendment exclusionary rule wouldn’t exclude the evidence while the state law violation would, but that’s on the issue presented by the alternative argument held foreclosed. Campbell v. State, 2018 Va. App. LEXIS 230 (Aug. 21, 2018), concurring opinion:

Campbell’s second and third assignments of error assert constitutional infirmities based entirely upon the failure of the magistrate to properly deliver the search warrant and affidavit to the clerk of the circuit court. He reasons that because the warrant was not properly filed, it is a constitutional nullity and therefore no probable cause existed to support a search. Given our Supreme Court’s holding in Campbell I, those assignments of error are now moot, and we need not decide them, however I note that the Fourth Amendment’s exclusionary rule is not a strict-liability sanction. It is a prophylactic remedy and to the extent it is relevant to the first assignment of error, I respectfully suggest that its purpose is not to deter the malfunctioning of a fax machine as apparently occurred here. See, e.g., Matthews v. Commonwealth, 65 Va. App. 334, 347, 778 S.E.2d 122, 129 (2015) (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” (quoting Herring v. United States, 555 U.S. 135, 144 (2009))).

Where police have acted reasonably and conscientiously, as in this case where they obtained and properly executed a search warrant invalidated only by the magistrate’s failure to transmit it and its accompanying affidavit to the clerk of the circuit court, the Fourth Amendment’s exclusionary rule is inapplicable and only the statutory sanction of Code § 19.2-54 could affect the admissibility of the evidence seized from the execution of the search warrant.

h/t a public defender reader; and keep them coming because it’s hard to read them all.