Criminal Laws on Search Warrants in Virginia

• Search warrants are executed by law enforcement. Sheer Photo, Inc/Photodisc/Getty Images

  Virginia law on search warrants is found in Title 19.2 (Criminal Procedure), Chapter 5 (Search Warrants) of the Virginia code. In general, search warrants are issued by a judge or magistrate following a complaint or oath indicating "reasonable and probable cause for the issuance" of a search warrant. (§19.2-52) Search warrants for the office of an attorney may only be issued by a circuit court judge.

Eligibility

• Search warrants are issued to allow law enforcement to find certain things that may have been used in or would prove the commission of a crime. Under Virginia law, warrants may be issued to search for and seize the following: weapons or other instruments used during the commission of crime; items that are illegal to possess or sell; stolen goods or "the fruits of any crime"; and "any object, thing, or person ... constituting evidence of the commission of crime." (§19.2-53) This includes (but is not limited to) documentation and bodily fluids. Search warrants should not be used as a substitute for a witness subpoena to compel someone to testify in court.

Affadavit

• For a search warrant to be filed legally in Virginia, an affidavit --- a statement "made under oath or affirmation and preserved verbatim" --- must be filed describing the facts of the case and the person, place, or thing that is to be searched. The affidavit must also clearly and specifically describe what is being searched for and the probable cause for the warrant. This affidavit must be certified by and filed with the court of the Commonwealth of Virginia. This affidavit must also be publicly available, although it may be temporarily sealed if the state's attorney can show good cause. Anyone who knowingly issues a search warrant without an affidavit is guilty of malfeasance.

Execution

• A warrant is executed by searching the place described in the warrant, or seizing the property described therein. If property is seized, the officer doing so must inventory the seized items and file the inventory with the court. Seized property will be kept by the court to be used as evidence. After being used as evidence, seized items that were not stolen or illegal will be returned to their owners. Illegal items may be burned or otherwise destroyed as soon as they are no longer needed for evidence.

Search Without Warrant

• Search of people, places, and things may only be conducted following the issuance of a search warrant. Any other search is unlawful and constitutes malfeasance under Virginia law. An officer or other person who violates Virginia law regarding search warrants is liable to the aggrieved person for damages; subsequent offenses shall result in the officer being relieved of his office. A person who has been the victim of an unlawful search can request that the court return any seized property and suppress it in evidence.

  The only exception to the search warrant rule is certain officers who have the authority to enforce game or marine fisheries laws. These officers may enter train cars, freight yards, passenger depots, baggage rooms, or any boat, automobile or other vehicle without a search warrant. They may not, however, conduct an unauthorized search of occupied berths in passenger cars and boats, or passenger luggage.