5.2 Searches with a Warrant

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

5.2 SEARCHES WITH A WARRANT

5.201 Who May Issue Warrant. The Supreme Court has held that the "issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists . . . ." ³⁸ The Court has also held that the requisite "neutrality" or "detachment" is met as long as the magistrate "is removed from the prosecutor or police and works within the judicial branch subject to supervision of the . . . judge." ³⁹ In another case, the Supreme Court invalidated a warrant process that paid a justice of the peace $5 for each warrant issued, finding such a system to be at odds with the requirement that warrants be issued by a "neutral judicial officer." ⁴⁰ The Court has also rejected a warrant process under which

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a search warrant was issued by the State Attorney General who was in charge of the investigation and later prosecuted the case. ⁴¹

Under the Virginia Code, search warrants may be issued by any judge, magistrate, or "other person having authority to issue criminal warrants." ⁴² It is unclear to whom the latter phrase refers, but in any event, the person would have to meet the test for "neutrality." A search warrant to search an attorney's office for evidence of crime committed by the attorney's client may only be issued by a circuit court judge. ⁴³

5.202 Property Subject to Search and Seizure. With the abolition of the "mere evidence" rule, ⁴⁴ most constitutional limitations on what may be seized under a warrant have disappeared. The Virginia Code authorizes warrants for the search of or for specified places, things, or persons and the seizure of the following items as specified in the warrant: (i) weapons or other objects used in the commission of crime; (ii) articles or things the sale or possession of which is unlawful; (iii) stolen property or the fruits of crime; or (iv) any object, thing, or person, including, without limitation, documents, books, papers, records, or body fluids constituting evidence of the commission of a crime. Search warrants issued to withdraw blood from a person suspected of violating any of the impaired vehicle operation statutes have priority over most other pending matters. ⁴⁵ No search warrant may be issued as a substitute for a witness subpoena. ⁴⁶ Effective April 4, 2012, a judicial officer is authorized to issue a search warrant to permit the use of an electronic or mechanical tracking device. ⁴⁷

5.203 The Affidavit. Search warrants may be issued based on a complaint made upon oath supported by an affidavit that includes both written and oral statements. ⁴⁸ The affidavit, in turn, must: (i) reasonably describe

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the place, thing, or person to be searched and the things or persons to be searched for; (ii) briefly allege the material facts constituting probable cause; (iii) allege substantially the offense or the identity of the person to be arrested for whom a warrant or process for arrest has been issued in relation to which the search is to be made; and (iv) allege that the object, thing, or person searched for constitutes evidence of the commission of the offense or is the person to be arrested for whom a warrant or process for arrest has been issued. ⁴⁹

Some of these statutory requirements overlap with the requirements for the warrant itself. In addition, the statutory requirement that the affidavit set forth the grounds establishing probable cause is also a Fourth Amendment mandate.

Because there is some overlap between the statutory requirements concerning the content of the affidavit and the statutory requirements concerning the content of the warrant, the requirement that the issuing magistrate attach a copy of the affidavit to the warrant is significant; when the affidavit is attached, it "shall become a part of the search warrant." ⁵⁰ The question thus presented is whether compliance with one of the requirements for the affidavit, such as the requirement that the affidavit contain an allegation of the offense in relation to which the search is to be made, can cure a deficiency in the warrant with respect to the same requirement as long as the affidavit is attached according to the statutory mandate. ⁵¹ To date, there has been no definitive resolution of this issue.

Since the statutory requirements are similar for the affidavit and for the warrant itself, another issue is whether the precedents dealing with whether the requirements have been met are interchangeable. For example, one statutory requirement for the warrant, which is also a constitutional requirement, is that the warrant must "name or describe the place to be searched." ⁵² This requirement is similar to the statutory requirement that the affidavit "reasonably [describe] the place, thing or person to be searched." ⁵³ Thus, it is reasonable to argue that the precedents dealing with

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the warrant requirement are relevant to the similar requirements for the affidavit. ⁵⁴

With respect to the particular statutory requirements for the affidavit, there are obviously numerous possibilities for error. If, for example, the affidavit fails to establish probable cause, the warrant issued under the affidavit is fatally defective. Likewise, if the affidavit fails to state the offense in relation to which the search is to be made, the warrant is invalid, ⁵⁵ although the offense need only be stated briefly and in general terms. ⁵⁶ In addition, even if deficient on its face, an affidavit can be rehabilitated with facts not included in it if the evidence establishes that the omitted facts were disclosed to the magistrate under oath or affirmation. ⁵⁷

Finally, in addition to attaching a copy of the affidavit to the warrant, the issuing officer must certify the affidavit and file it with the appropriate court clerk or clerks within seven days after the search warrant is issued. ⁵⁸ Filing of the affidavit by the officer who executed the search warrant, rather than by the magistrate who issued the warrant, satisfies the notice-based purpose of section 19.2-54 of the Virginia Code. ⁵⁹

Although section 19.2-54 states that failure to certify and file the affidavit will invalidate a search made under a warrant supported by the affidavit if this failure continues for 30 days, in Commonwealth v. Campbell, ⁶⁰ the Virginia Supreme Court held that the failure to file the search warrant would not cause the exclusion of evidence if an exception to the Fourth Amendment applied that would have supported a warrantless search. If the failure to certify and file the affidavit is for less than 30 days, the statute states that evidence

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obtained cannot be admitted in court until a reasonable time after the filing of the affidavit. ⁶¹

5.204 Contents of Warrant.

A. In General. Each warrant must:

1.	Be directed (i) to the sheriff, sergeant, or any police officer in the county or city in which the place to be searched is located, (ii) to any law enforcement officer employed by the commonwealth with the powers of sheriffs or police, or (iii) jointly to any such officers and certain designated federal officers;
2.	Name the affiant;
3.	Recite the offense in relation to which the search is to be made, or the identity of the person to be arrested;
4.	Name or describe the place to be searched;
5.	Describe the property or person to be searched for; and
6.	Recite that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime or tends to show that a person has committed or is committing a crime. 62

In addition, each search warrant must contain the date and time issued, although a deficiency in this respect will not void the warrant as long as it can be established by competent evidence. ⁶³ Finally, the warrant must command that the place be searched forthwith, either in the daytime or at night, and that the objects described in the warrant, if found, be seized. An inventory of the objects must be produced before a court having jurisdiction of

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the offense. ⁶⁴ A warrant is void if not executed within 15 days after issu-ance. ⁶⁵

B. Specificity of Place to Be Searched. The statutory requirement that the warrant "name or describe the place to be searched" parallels the statutory requirement for the affidavit. More importantly, this statutory requirement parallels the Fourth Amendment requirement that the warrant "particularly [describe] the place to be searched." The Supreme Court has held that the mandate is satisfied "if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended." ⁶⁶

In the case of a search warrant directed against a multiple-occupancy building, the particular sub-unit to be searched must be identified with sufficient definiteness to preclude search of other units, ⁶⁷ but the search of the wrong premises under a facially valid warrant does not necessarily require suppression. ⁶⁸ There are exceptions to this general rule. Even if the warrant fails to describe the sub-unit, it will not be held invalid where it adequately specifies the name of the occupant of the unit against which it is directed and provides the searching officers with sufficient information to identify, without confusion or excessive effort, that sub-unit. ⁶⁹

In connection with the general rule previously described, the Virginia Supreme Court has upheld the validity of a warrant that directed the officers to search "5755 Westover Hills Village" rather than "5755 Westover Village." According to the court, when the officers consulted a local map, they found that there were no numbers as high as 5755 on Westover Hills Village, and thus they had no difficulty determining that 5755 Westover Village was the proper location. ⁷⁰

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Finally, the particularity requirement is more than a technicality. It is the factor that determines the scope of the search. Thus...