"The 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, 472 S.E.2d 649, 653, aff'd en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996) (citation and internal quotation marks omitted). "The premise for the good faith exception lies in the belief that when officers rely in good faith upon a warrant subsequently quashed for lack of probable cause, suppressing the evidence will have no deterrent effect."

Ordinarily, a statutory violation does not require the suppression of evidence obtained as a result of that violation "`absent an express statutory provision for suppression.'" Janis v. Commonwealth, 22 Va.App. 646, 651, 472 S.E.2d 649, 652 (quoting Troncoso v. Commonwealth, 12 Va.App. 942, 944, 407 S.E.2d 349, 350 (1991)), aff'd on reh'g en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996). However, in light of the Supreme Court's declaration in Knowles that the Fourth Amendment does not permit a search incident to issuance of a citation, we now conclude that a search conducted pursuant to a custodial arrest that violates Code § 19.2-74 constitutes, in effect, a search incident to issuance of a citation in violation of the Fourth Amendment.

Cunningham v. Commonwealth, 49 Va.App. 605, 612-13 (2007) (alteration in original) (quoting Janis v. Commonwealth, 22 Va.App. 646, 652, aff'd upon reh'g en banc, 23 Va.App. 696 (1996)).

Without evidence in the record supporting probable cause, the reviewing court does not merely assume it existed. See Janis v. Commonwealth, 22 Va.App. 646, 652, adopted upon reh'g en banc, 23 Va.App. 696 (1996); see also Cole, 294 Va. at 354 (noting that at a hearing on a motion to suppress, the Commonwealth bears the burden of establishing that evidence was obtained within the bounds of the Constitution). Last, nothing in the record indicates that Detective Waggoner made a sworn statement to the intake officer.

United States v. Leon, 468 U.S. 897, 906 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). However, because "[t]he deterrent effect of the exclusionary rule 'is absent where an officer, acting in objective good faith, obtains a search warrant from a magistrate and acts within the scope of the warrant,'" Janis v. Commonwealth, 22 Va. App. 646, 653 (emphasis added) (quoting Derr v. Commonwealth, 242 Va. 413, 422 (1991)), aff'd en banc, 23 Va. App. 696 (1996), evidence seized pursuant to an invalid search warrant "is nevertheless admissible if the officer executing the warrant reasonably believed that the warrant was valid," Lanier v. Commonwealth, 10 Va. App. 541, 547 (1990) (citing Leon, 468 U.S. at 918-21). "It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment."

Therefore, having identified no evidence to suppress, it was not error for the trial court to deny his motion to suppress. Even if Christian sought to exclude evidence obtained during his arrest, "Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law."Virginia v. Moore, 553 U.S. 164, ___ (2008); see also Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649, 652 (holding that exclusion is not an appropriate remedy when a state statute is violated "'absent an express statutory provision for suppression'" (quotingTroncoso v. Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991))), aff'd on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996). Christian alleges no constitutional violation and the only statute he relies upon, Code § 19.2-77, is inapplicable and, in any event, contains no express provision for suppression.

"The 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, 472 S.E.2d 649, 653, aff'd en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996) (citation and internal quotation marks omitted). "The premise for the good faith exception lies in the belief that when officers rely in good faith upon a warrant subsequently quashed for lack of probable cause, suppressing the evidence will have no deterrent effect."

Even assuming the terms of Code § 19.2-74 entitled appellant to be released on a summons, this alleged violation of state law did not entitle appellant to invoke the search and seizure provisions of the United States or Virginia Constitution to suppress the fruits of the search conducted incident to arrest. See Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649, 652 (holding that exclusion is not an appropriate remedy when a state statute is violated "'absent an express statutory provision for suppression'" (quoting Troncoso v. Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991))), aff'd on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996). The United States Supreme Court recently held, subsequent to the trial court's ruling on the motion to suppress, that as long as "an officer has probable cause to believe a person committed even a minor crime in his presence, . . . [t]he arrest is constitutionally reasonable," even if it violates state law.

I agree with the majority that, ordinarily, a statutory violation does not require the suppression of evidence obtained as a result of that violation "`absent an express statutory provision for suppression.'" Janis v. Commonwealth, 22 Va.App. 646, 651, 472 S.E.2d 649, 652 (quoting Troncoso v. Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991)), aff'd on reh'g en banc, 23 Va.App. 696, 479 S.E.2d 534 (1996). However, in light of the Supreme Court's declaration in Knowles that the Fourth Amendment does not permit a search incident to issuance of a citation, I would conclude that a search conducted pursuant to a custodial arrest that violates Code § 19.2-74 constitutes, in effect, a search incident to issuance of a citation in violation of the Fourth Amendment.

As a general rule, a mere violation of state statutory law does not require that the offending evidence be suppressed, unless the statute expressly provides for an evidentiary exclusion remedy. See, e.g., Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649, 652, aff'd on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 53 (1996); see also Vinson v. Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177 (1999); Penn v. Commonwealth, 13 Va. App. 399, 406-07, 412 S.E.2d 189, 193 (1991), aff'd per curiam, 244 Va. 218, 420 S.E.2d 713 (1992); Thompson v. Commonwealth, 10 Va. App. 117, 122, 390 S.E.2d 198, 201 (1990). Absent evidence to the contrary, we presume that public officials "properly discharged their official duties."