Part 1: Virginia Search Warrants – When & What
When most people charged with certain crimes come to their local Virginia and Fairfax criminal attorney, they feel as if there may have been a privacy intrusion due to a warrantless search of the vehicle or home. Whether or not you have been violated, legally speaking, depends on the adherence (or lack thereof) to 4th amendment case law, and sections of the Code of Virginia, discussed in-part on this page by Fairfax criminal attorney, Brenton Vincenzes.
This is the first of a several part series on Virginia search warrant rules.
This page provides an overview. The articles to follow will cover topics to include answers to the questions: “What can I do if I have been improperly searched or arrested?,” “Can the police put a GPS tracking device on my car?” and, “When can I get back my property from the police department?”
Fairfax Criminal Lawyer Analyzes Virginia Laws
Many people who have been arrested and charged with a crime have questions related to search and seizure laws. In a criminal case, if an officer searches or seizes a person or thing without a warrant, then the remedy is usually suppression of evidence at the criminal trial. It could also result in the officer’s civil liability for damages, and he/she could be deemed guilty of malfeasance of office. Under current Virginia law, an officer forfeits his or her job if found to have committed malfeasance a second time. The truth is, most of the time law enforcement does not have a warrant, but still searches a person or place legally (due to one of the many exceptions to the warrant requirement).
Broadly speaking, from a defense attorney and defendant’s perspective, a violation may result in dismissal of a charge or the charges due to legal doctrines including “fruit of the poisonous tree,” and the “exclusionary rule.”
Fruit of the Poisonous Tree: a metaphor to describe evidence seized illegally. If the source (the tree) is illegal, then the evidence/contraband (the fruits) should also be treated as inadmissible (also poisonous).
Exclusionary Rule: The exclusionary rule applies to evidence gained from an unreasonable search or seizure, (see Mapp v. Ohio, 367 U.S. 643 (1961)).
Many times, a person or place is searched or seized without a warrant, but pursuant to a valid exception to the warrant requirement. But when an exception does not apply, the implications exceed the criminal case: for example, if an officer makes an arrest without a warrant and not supported by probable cause, he/she could be liable in civil court, and even could face punitive damage claims as well as malfeasance and/or dismissal from the police department as mentioned above — and explored in more detail in one of the articles in this series. First, if charged, your local Fairfax criminal attorney may discuss whether or not there was an appropriate basis for the issuance of the search warrant, and whether or not the evidence seized was within the scope of the warrant.
Relevant Virginia Code Sections
- 19.2-52 – When search warrant may issue.
- 19.2-53 – What may be searched and seized.
- 19.2-54 – Affidavit preliminary to issuance of search warrant; general search warrant prohibited; effect of failure to file affidavit.
- 19.2-55 – Issuing general search warrant or search warrant without affidavit deemed malfeasance.
- 19.2-56 – To whom search warrant directed; what it shall command; warrant to show date and time of issuance; copy of affidavit to be part of warrant and served therewith; warrants not executed within 15 days.
- 19.2-56.1 – Warrant issued for search of attorney’s office.
- 19.2-56.2 – Application for and issuance of search warrant for a tracking device; installation and use.
- 19.2-57 – Execution and return of warrant; list of property seized.
- 19.2-58 – Disposition of property seized.
- 19.2-59 – Search without warrant prohibited; when search without warrant lawful.
- 19.2-59.1 – Strip searches prohibited; exceptions; how strip searches conducted.
- – Motion for return of seized property and to suppress.
For an interesting read, see the recently released Magistrate manual from the Department of Judicial Services and the Office of the Executive Secretary: Magistrate Manual: Search Warrant Procedures
There are many reasons why someone may be researching search warrant requirements, and the remedies (or penalties against the government). Some common circumstances implicating 4th amendment warrant, search, and seizure rules and remedies include:
Examples of Search Warrant Situations in Real Life
- When drugs are alleged to have been discovered in the mail;
- When criminal activity, including but not limited to: drug sales; illegal gambling; and other organized criminal rings;
- When police suspect drugs or contraband are located in a vehicle that has been stopped;
- When police suspect drugs or contraband (illegal items) are located in a home;
- When police want forensic evidence, including DNA or access to cellular phones; and,
- Endless other scenarios…
Each of the above scenarios/questions can lead to sub-sets of questions: for example,
can the police search your home if your wife gives them consent, but you do not?
Does the answer change, if it is a girlfriend? A parent? House guest? Each case is factually unique, and although the same principles discussed on this page may be applicable, very few cases go to trial if they are so factually similar that they implicate the same cases, laws, and arguments by a trial attorney (but in some cases, the law is in flux and more likely to go to trial and the higher appellate courts). This page is meant to set forth Virginia law basics as the Code of Virginia covers the most basic warrant and search/seizure laws.
Search Warrant Basics
19.2-52 – When search warrant may issue.
Except as provided in § 19.2-56.1 [Warrant issued for search of attorney’s office] search warrants, based upon complaint on oath supported by an affidavit as required in § 19.2-54, may be issued by any judge, magistrate or other person having authority to issue criminal warrants, if he be satisfied from such complaint and affidavit that there is reasonable and probable cause for the issuance of such search warrant.
Read the article, “What is probable cause?”
The foundation law is § 19.2-52, which states a warrant may only be issued if there is probable cause, as determined by a person with lawful authority to make such determination.
The law above has several sub-points which will not be explored on this page; but by way of illustration: a magistrate must be neutral and detached…meaning he or she must not be improperly biased. See Johnson v. United States, 333 U.S. 10, 13-14 (1948).
19.2-53 – What may be searched and seized.
Search warrants may be issued for the search of or for specified places, things or persons, and seizure therefrom of the following things as specified in the warrant:
(1) Weapons or other objects used in the commission of crime;
(2) Articles or things the sale or possession of which is unlawful;
(3) Stolen property or the fruits of any crime;
(4) Any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime. Notwithstanding any other provision in this chapter to the contrary, no search warrant may be issued as a substitute for a witness subpoena.
This code section simply states that a properly issued warrant may be used to search a place, person, object (like a vehicle), or to seize an object or person.
Read 7 exceptions to the warrant requirement, an article published by local Northern Virginia and Fairfax Criminal Attorney, Brent Vincenzes.
Part 2 covers the rules related to government-installed GPS tracking devices (on vehicles).
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