9.4 The Law of Search and Seizure

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.4 THE LAW OF SEARCH AND SEIZURE

9.401 General Considerations.

A. Fourth Amendment Protections. The Fourth Amendment to the United States Constitution provides for

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment may appear simple to follow by law enforcement authorities, but since its enactment, the Fourth Amendment has evolved into a constitutional right with many exceptions to the search warrant requirement.

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To fully understand the complexity of the Fourth Amendment, some basic concepts need to be explained.

B. What Is a Search? Katz v. United States ²¹² expanded the definition of a "search" to provide constitutional protection to people and not places. It extends to those situations where a person has a reasonable expectation of privacy in his person, place, or thing (tangible and intangible) that "society is prepared to recognize as reasonable." ²¹³ The search has to be conducted by government action and not by a private entity for the Fourth Amendment to apply. ²¹⁴ The use of police dogs has been classified as governmental action. ²¹⁵ Government searches have applied to a person's computer, cell phone, GPS tracking of his or her car, thermal imaging of his or her house, and his or her DNA. ²¹⁶

C. What Is a Seizure? A seizure of a person occurs when, taking into account the surrounding circumstances of an encounter with the police, a reasonable person would believe that he or she is not free to leave. ²¹⁷ To constitute a seizure of a person, there must be a show of authority by the police, and the seized person must submit to the authority. ²¹⁸ A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in the property. ²¹⁹

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9.402 Search Warrants.

A. Requirement for Search Warrant. With a few exceptions as listed in the following sections, a search and seizure of private property may not be undertaken except upon probable cause to believe that seizable objects are located at the place to be searched. ²²⁰ It must be issued by a neutral and detached magistrate or judicial officer, "capable of determining whether probable cause exists . . . ." ²²¹ 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." ²²² The requirement of probable cause applies equally to searches under a warrant and to those without a warrant, although some cases suggest that when a search is made under a warrant, reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting without a warrant. ²²³

B. Probable Cause. Probable cause for a search warrant is the same as probable cause for an arrest warrant. For a search warrant, probable cause means information sufficient to justify a person of "reasonable caution in the belief" that seizable items are located in the place to be searched. ²²⁴ In determining the existence of probable cause, the Supreme Court has admonished courts to approach the problem from the perspective of a reasonable person: "[W]e deal with probabilities . . . [the] factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ²²⁵ Thus, the information required to establish probable

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cause clearly need not constitute a prima facie case. ²²⁶ Implementation of the "common sense" approach to the issue of probable cause is most clearly reflected in the holdings that hearsay may be used. ²²⁷

Probable cause turns only on objective facts, not on the subjective opinion of the officer. "[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." ²²⁸

Finally, in examining the sufficiency of the information used to support probable cause for a search under a warrant, the allegations in the affidavit must be considered as a whole rather than paragraph by paragraph. The fact that no one paragraph is sufficient to establish probable cause does not render the affidavit insufficient. ²²⁹

C. Contents of Search Warrant. 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

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	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;
4.	Name or describe the place to be searched;
5.	Describe the property or person to be searched with specificity;
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;
7.	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; and
8.	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. A warrant is void if not executed within 15 days after issuance. 230

D. Affidavit for Search Warrant. Search warrants may be issued based on a complaint made upon oath supported by an affidavit that includes both written and oral statements. ²³¹ The affidavit, in turn, 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 in relation to which the search is to be made; (iv) allege that the object, thing, or person searched for constitutes evidence of the commission

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of the offense or is the person to be arrested for whom a warrant or process for arrest has been issued; ²³² and (v) state the facts to establish the credibility and reliability of the information provided by the affiant. ²³³

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 Va. Code § 19.2-54. ²³⁴ Failure to certify and file the affidavit, however, will not invalidate a search made under a warrant supported by the affidavit unless this failure continues for 30 days. If the failure is for less than 30 days, the evidence obtained cannot be admitted in court until a reasonable time after the filing of the affidavit. ²³⁵

Finally, if 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, ²³⁶ although the offense need only be stated briefly and in general terms. ²³⁷ 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. ²³⁸ In addition, the time of the occurrence of the facts establishing probable cause must be close in time to the issuance of the search warrant. ²³⁹ If the probable cause is too remote, it becomes "stale." ²⁴⁰

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E. Execution of Search Warrant.

1. Timing. The execution of a search warrant must take place "forthwith" and, if not executed within 15 days after its issuance, must be returned and voided by the officer issuing the warrant. ²⁴¹ The 15-day limitation serves to extinguish absolutely the viability of the warrant, regardless of circumstances. Probable cause must exist at the time the warrant is executed and requires that the officers execute the warrant with reasonable dispatch and without undue delay. It does not require, however, that the warrant be executed as soon as physically possible. ²⁴² The warrant may be executed either in the daytime or at night by any officer into whose hands it comes or is delivered. ²⁴³

Yet, the execution of the warrant can be delayed in the case of an "anticipatory warrant." In United States v. Grubbs, ²⁴⁴ the United States Supreme Court upheld an "anticipatory warrant" authorizing a search with a condition precedent, namely, the occurrence of a triggering event. If the event is the arrival of particular evidence, that evidence does not have to be on the premises at the time the warrant is issued. ²⁴⁵ The Court held that the particularity requirement does not require the triggering event to be set forth in the warrant itself if the affidavit supporting the warrant supports the finding of probable cause that evidence of a crime will be found in a particular place upon the occurrence of the triggering event and that the triggering event will actually happen. The Virginia Supreme Court observed that Grubbs effectively requires a two-part test to uphold such a warrant. There must be: (i) a fair probability that contraband or evidence of a crime

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will be found in a particular place and (ii) probable cause to believe the triggering condition will occur. ²⁴⁶

2. Persons on Property. Va. Code § 19.2-56 provides that no person may be present...