5.2 SEARCHES WITH A WARRANT (PROCEDURE)

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

5.2 SEARCHES WITH A WARRANT (PROCEDURE)

5.201 Who May Issue Warrant?

Virginia Code section 19.2-52 states that search warrants may be issued by any judge, magistrate, or "other person having authority to issue criminal warrants." It is unclear as to who is intended by the phrase "other person having authority" within 19.2-52 et seq., however, court clerks are permitted under section 16.1-69.40 to issue warrants. 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. ⁷⁹⁶

An "issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists . . . ." ⁷⁹⁷ The United States Supreme Court has held that the required "neutrality" or "detachment" is satisfied as long as the magistrate "is removed from prosecutor or police and works within the judicial branch subject to the supervision of the . . . judge." ⁷⁹⁸ The Supreme Court invalidated a warrant process that paid a justice of the peace $5 for each warrant issued, determining that the system precluded the justice of the peace from being a "neutral and detached magistrate." ⁷⁹⁹ The Court also rejected a warrant process where a search warrant was issued by the state attorney general that was in charge of the investigation and also prosecuted the case. ⁸⁰⁰

In another case, the issuing magistrate left the warrant blank where the description of the items to be seized would have been identified and accompanied law enforcement during the execution of the warrant. The magistrate participated in the search and, as he happened upon items subject to seizure, he filled in the warrant authorizing the seizure. The warrant was invalidated by the Court, finding that by accompanying the police in the execution of the warrant, the magistrate lost his status as a "neutral and detached" judicial officer. Additionally, the magistrate also conducted a general search, which is forbidden under the Fourth Amendment. ⁸⁰¹

5.202 Property Subject to Search and Seizure.

Section 19.2-53 of 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; (iv) any object, thing, or person, including, without limitation, documents, books, papers, records, or body fluids, constituting evidence of the commission of a crime; or (v) any person to be arrested for whom a warrant or process for arrest has been issued.

Search warrants issued to withdraw blood from a person suspected of violating any of the statutes regarding intoxication while operating a motor vehicle have priority over any pending matters not involving an imminent risk to a person's health. ⁸⁰² No search warrant may be issued as a substitute for a witness subpoena. ⁸⁰³ A judicial officer is authorized to issue a search warrant to permit the use of an electronic or mechanical tracking device. ⁸⁰⁴

With respect to the search and seizure of computers and electronically stored information, section 19.2-53 states that additional warrants are no longer necessary for the subsequent search of a seized electronic device.

Any search warrant issued for the search and seizure of a computer, computer network, or other device containing electronic or digital information shall be deemed to include the search and seizure of the physical components and the electronic or digital information contained in any such computer, computer network, or other device, except information for which a search warrant is prohibited by section 19.2-60.2. ⁸⁰⁵

Further, the statute provides that the search may take place in any location, not just where the evidence was seized. ⁸⁰⁶

If a valid arrest warrant exists for a person and law enforcement has probable cause to believe that (i) the location is the defendant's residence, and (ii) the wanted party is home at the time they enter, a search warrant to enter and seize that person is unnecessary. "[I]t is not constitutionally necessary for officers to seek additional judicial authorization before entering a suspect's own home to arrest him." ⁸⁰⁷ Conversely, "an arrest warrant alone [does] not authorize police to enter a third party's home" to arrest a wanted person based solely on an arrest warrant due to, among other things, "[the third party's] interest in being free from an unreasonable search" unless exigent circumstances exist. ⁸⁰⁸

5.203 The Affidavit.

Search warrants may be issued when supported by a probable cause affidavit. The affidavit must: (i) reasonably describe 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; 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. ⁸⁰⁹

Some of the statutory affidavit requirements in section 19.2-54 overlap with the requirements for the warrant itself in section 19.2-56. The search warrant and affidavit seem to become one and the same, when section 19.2-54 and section 19.2-56 are read together, for filing purposes and requirements. More inquiring minds may observe that section 19.2-54 is "inartfully drafted." ⁸¹⁰

Sections 19.2-54 and 19.2-56 require that a judicial officer (usually the magistrate) file the supporting affidavit and warrant with the clerk of the circuit court. Section 19.2-54 enumerates what must be included in the affidavit and provides that the affidavit must be certified by the officer who issues the warrant and delivered "by such officer or his designee or agent, to the clerk of the circuit court of the county or city wherein the search is made, within seven days after the issuance of such warrant[.]" ⁸¹¹

Section 19.2-54 provides a statutory remedy for failing to comply with these notice provisions that require the documents be certified and filed, invalidating a search if the filing failure continues for 30 days. However, the filing of documents by the law enforcement officer that executed the search warrant, rather than by the issuing judicial officer, satisfies the notice-based purpose of section 19.2-54. ⁸¹² If the failure to certify and file the affidavit is for less than 30 days, the statute states that evidence obtained cannot be admitted in court until a reasonable time after the filing of the affidavit. ⁸¹³

Section 19.2-54 has not been interpreted to be a "penal statute that must be construed strictly against the Commonwealth[,] . . . [r]ather, it is purely procedural in nature" rooted in proper filing for notice purposes. ⁸¹⁴ Failing to file the search warrant does not require the exclusion of evidence if an exception to the Fourth Amendment applies that would have otherwise supported a warrantless search. ⁸¹⁵ "Whatever the scope of inadmissibility contemplated by Code § 19.2-54 for searches made under a defective warrant, nothing in the plain language of this statute compels the exclusion of evidence obtained in the course of a search that is justified on grounds other than a warrant." ⁸¹⁶

Because there is some overlap between the statutory requirements concerning the content of the affidavit as well as the content of the warrant within sections 19.2-54 and 19.2-56, 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." ⁸¹⁷ The question becomes 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 consistent with the statutory requirement. ⁸¹⁸ To date, there has been no definitive resolution of this issue.

However, in Lebedun v. Commonwealth, ⁸¹⁹ the Virginia Court of Appeals noted that the defendant did not establish whether the disputed search warrant and affidavit were attached before or after the warrant was executed. Therefore, the defendant "failed to meet his burden of proving that the warrant did not recite the offense in relation to which the search was conducted." ⁸²⁰

The particular statutory requirements for the affidavit are extensive. The affidavit must sufficiently describe the offense related to the search, otherwise, the warrant is invalid. ⁸²¹ However, the offense need only be stated briefly and in general terms. ⁸²² Alleging a "felony" in the affidavit is insufficient, while alleging "breaking and entering, grand larceny, and possession of stolen property" is an adequate description of the offenses being investigated. ⁸²³ The affidavit does not need to contain "the precise and legalistic language usually found in an indictment, a presentment or an arrest warrant" as the basis of the search. ⁸²⁴ Even if the affidavit is facially deficient, the affidavit can be rehabilitated if the evidence establishes that the omitted facts were provided to the magistrate under oath or affirmation. ⁸²⁵

Practitioners should carefully consider the overlap between sections 19.2-54 and 19.2-56. While "affidavit" is defined in section 19.2-54 as a "statement made under oath or affirmation and preserved verbatim," section 19.2-56 states that the "affidavit" "shall become part of the search warrant" under section 19.2-56, which makes parsing through these statutes particularly cumbersome. Notably, the term...