In Virginia v. Moore the Supreme Court held that evidence is admissible under the Fourth Amendment even though obtained in a search incident to an unlawful arrest that was on probable cause.
In other words, if the state makes something a non-arrestable crime (in Virginia, driving with a suspended license) and the police break state law by arresting a person for it, the violation of state law does not so offend the Fourth Amendment that the evidence should be excluded.
In still other words, a “search incident to arrest” does not mean a “search incident to lawful arrest” but rather “a search incident to arrest with probable cause.”
A state constitution may give more protection than the U.S. Constitution, but Virginia’s Constitution does not appear to contain a prohibition against unreasonable searches and seizures. (That’s not a Bill of Rights. That’s a Bill of Rights!)
Nor does Virginia have a statutory prohibition against the use of illegally-obtained evidence against an accused. Wise County, Texas criminal-defense lawyer Barry Green correctly analyzes the situation: in Texas state criminal cases, article 38.23 of the Code of Criminal Procedure gives more protection than the U.S. Constitution, and would bar the use of evidence obtained pursuant to an unlawful arrest (for speeding, for example) even though the U.S. Supreme Court continues chipping away at the exclusionary rule for its own sake.
For it’s own sake? But no! The court is just following the founders’ original intent, right? Well, my crystal ball is in the shop for polishing, but I’ve researched the issue carefully, and I’m pretty sure that in 1791 driving with a suspended license was not a crime in Virginia. (Question for the scholars: were malum prohibidum crimes a significant part of the criminal law in late eighteenth-century America?) To say that the founders intended for police (which didn’t then exist) to be able to search people when arresting them illegally for driving cars (which didn’t then exist) with suspended licenses (which didn’t then exist) seems rather a stretch to me.
P.S. Typically, the anti-judicial-review neocons are already holding this roundheeled Supreme Court decision up as an example of judicial activism.