search warrants?

Question

Is is necessary for the police to obtain a warrant to search the home of the deceased? If the person died in the commission of a crime?

Answer 1

Although it technically isn't necessary because the decedant has "given up his/her expectation of privacy" it is always a good and safe idea to get one anyway. But the law does allow for this.

Given the option were I conducting the search...I'd go for the warrant because there doesn't appear to be any exigency here.

Answer 2

1

Answer 3

That's an interesting question. I would think that the answer would be yes. The problem, however, is who could sue the officers (or who could file a suppression motion in a criminal case) if the officers didn't have a warrant. I'm not sure that the estate of the person would have "standing" to do either of those things (and generally they don't charge you when you're dead, so there shouldn't be much of an investigation). So unless someone else has a reasonable expectation of privacy in the home (i.e. lives there) I'm not sure who could sue. You could ask your probate attorney whether the estate would have the ability to bring a Section 1983 action for a warrantless search, but who knows.

Answer 4

if the family of the passed do want the police to search the house then the police have to obtain a warrant. plus they also get to cover the stuff they take from the house if it is a on going investigation. if they don't and it is an on going investigation and they take the stuff with out a warrant then the judge could throw that evidence out and then they will have to get a warrant to take something Else out of the house.

Answer 5

Not necessary. Suspicion is a different matter, but the police have the power to enter buildings and vehicles belonging to people caught in the commission of crime. Also when they have good reason to believe a crime is occuring..ie screaming, the smell of drugs, and a complaint etc

Answer 6

Criminal Records Search Database - http://InfoSearchDetective.com

Answer 7

2

Answer 8

81. Criminal Searches
B. VIRGINIA STATUTES ON SEARCH WARRANTS
C. THE AFFIDAVIT FOR SEARCH WARRANT (Form DC-339) in commision of a death
1. Description of the Place, Thing or Person to be Searched
2. The Things or Persons that are the Subject of the Search
3. The Material Facts Constituting the Probable Cause
a. Determination of the logical validity of the facts in the affidavit
b. Determination of the reliability of the facts in the affidavit
c. The time factor and stale probable cause
4. The Offense in Relation to Such Search
5. The Object, Thing or Person Searched for
6. Distribution of the Affidavit and Copies
D. THE SEARCH WARRANT (Form DC-339)
1. Preparation of the Warrant
2. Execution and Return of the Warrant
E. ADMINISTRATIVE SEARCHES
1. INTRODUCTION
2. PROBABLE CAUSE
3. FIRE INSPECTION WARRANT (LOCAL OFFICIAL)
4. FIRE INVESTIGATION WARRANT (FIRE MARSHAL)
5. HAZARDOUS MATERIALS INVESTIGATIONS WARRANT
6. PESTICIDE CONTROL ADMINISTRATIVE SEARCH WARRANT
7. HEALTH AND SAFETY INSPECTIONS
8. DAM INSPECTIONS
9. BUILDING CODE VIOLATIONS
10. ADMINISTRATIVE SEARCH OR INSPECTION WARRANTS ISSUED ONLY
BY COURTS
8/1/2006 Magistrate Manual (Revision 30) VII-2
A. INTRODUCTION
There are two types of searches. The first deals with the traditional search for
purposes of obtaining evidence for use in a criminal trial. The second deals with
administrative searches and concerns itself with inspections such as fire, hazardous materials,
health, and safety matters. This chapter discusses both types of searches. Items C. through
D. deal with criminal matters while Item E. deals with the various administrative searches.
1. Criminal Searches
A search is defined as a government intrusion upon a person's "reasonable expectation
of privacy". Before the decision in Katz v. U.S., 389 U.S. 347 (1967), the government
intrusion had to be a physical intrusion in order to be regarded as a search. This requirement
for a physical intrusion was easily defined and easily understood, but it led to some
undesirable results. As technology developed, primarily electronic listening devices, it became
possible for the government to monitor conversations in an individual's dwelling without ever
physically intruding into that dwelling. Thus, in Katz, the Supreme Court was confronted with
a factual situation in which the police, without a search warrant, had placed electronic
listening devices on the outside of a telephone booth, and were able to overhear the
conversation without making a physical intrusion. In Katz, the court held that the U.S.
Constitution (Fourth Amendment) is not designed merely to protect against physical trespass,
it is designed to protect the right of privacy. "The Fourth Amendment protects people, not
places. What a person knowingly exposes to the public, even in his own house, is not a
subject of Fourth Amendment protection... But what he seeks to preserve as private, even
in an area accessible to the public, may be constitutionally protected." Thus in Katz, the court
abandoned the technical analysis of whether there was a physical intrusion and substituted
the more theoretical or general analysis of whether there was an invasion of privacy. This is
a reflection of the basic concept regarding fair play and justice. The court recognized that the
Fourth Amendment serves as a limitation on the power of the government, and this limitation
cannot be undermined by technological gadgetry.
Both the Virginia (Virginia Constitution, Article I, Section 10) and the United States
Constitution (U.S. Constitution, Amendment IV) forbid the issuance of search warrants which
are not based upon "probable cause". The reason is obvious. People should be secure in the
possession of their homes and property from unjustified intrusions. The abuse of this right
by British authorities in issuing general search warrants called "writs of assistance"
contributed to the American Revolution and led to the enactments of the safeguards of the
Virginia and Federal Constitutions.
The magistrate must keep in mind that the issuance of a search warrant, sets aside,
to some extent, an individual's right to privacy. The right to privacy is not an absolute right;
8/1/2006 Magistrate Manual (Revision 30) VII-3
it must be balanced against society's right to obtain evidence of a crime. For these reasons,
there are very strict provisions regulating the issuance of search warrants. A failure to comply
with these provisions may result in serious consequences, both for the judicial officer issuing
the warrant and for the Commonwealth. A magistrate who willfully fails to observe the proper
procedure may be found guilty of malfeasance and is subject to removal from office. He may
be liable in money damages, in some instances, to a party injured by the illegal search
(Williams v. Kozak, 280 Fed. 373 (4th Cir. 1922)). Perhaps more importantly, a miscarriage
of justice may result, in that evidence seized from an obviously guilty person may not be later
admitted in court if the search warrant is illegal. A guilty person may escape punishment
because a magistrate was remiss in his duties.
B. VIRGINIA STATUTES ON SEARCH WARRANTS
The following statutes set forth procedures for criminal search warrants There are
other types of search warrants, inspection warrants, and investigative warrants set forth in
the Code of Virginia. Probable cause hearings for criminal search warrants are the most
common type of search hearing that a magistrate conducts. While probable cause
determination for administrative, inspection or investigative warrants is the same as for
general criminal search warrants, procedures vary considerably.
Section 3.1-796.113 states:
When a sworn complaint is made to any proper authority by any animal control
officer, humane investigator, law-enforcement officer or State Veterinarian's
representative that the complainant believes and has reasonable cause to believe
that the laws in relation to cruelty to animals have been, are being, or are about to
be violated in any particular building or place, such authority, if satisfied that there
is reasonable cause for such belief, shall issue a warrant authorizing any sheriff,
deputy sheriff or police officer, to search the building or place. No search shall be
made after sunset unless specially authorized by the authority upon satisfactory
cause shown.
Section 4.1-337 states:
A. If complaint on oath is made that alcoholic beverages are being manufactured,
sold, kept, stored, or in any manner held, used or concealed in a particular house,
or other place, in violation of law, the judge, magistrate, or other person having
authority to issue criminal warrants, to whom such complaint is made, if satisfied that
there is a probable cause for such belief, shall issue a warrant to search such house
or other place for alcoholic beverages. Such warrants, except as herein otherwise
8/1/2006 Magistrate Manual (Revision 30) VII-4
provided, shall be issued, directed and executed in accordance with the laws of
the Commonwealth pertaining to search warrants.
B. Warrants issued under this title for the search of any automobile, boat,
conveyance or vehicle, whether of like kind or not, or for the search of any article
of baggage, whether of like kind or not, for alcoholic beverages, may be executed
in any part of the Commonwealth where they are overtaken, and shall be made
returnable before any judge within whose jurisdiction such automobile, boat,
conveyance, vehicle, truck, or article of baggage, or any of them, was transported
or attempted to be transported contrary to law.
Section 19.2-52 states:
Except as provided in § 19.2-56.1, 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.
Section 19.2-53 states:
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.
Section 19.2-54 states:
8/1/2006 Magistrate Manual (Revision 30) VII-5
No search warrant shall be issued until there is filed with the officer authorized to
issue the same an affidavit of some person reasonably describing the place,
thing, or person to be searched, the things or persons to be searched for
thereunder, alleging briefly material facts, constituting the probable cause for
the issuance of such warrant and alleging substantially the offense in relation to
which such search is to be made and that the object, thing, or person searched
for constitutes evidence of the commission of such offense. The affidavit may be
filed by electronically transmitted facsimile process. Such affidavit shall be
certified by the officer who issues such warrant and delivered by such officer or
other officer authorized to certify such warrants 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 and shall by such clerk be preserved as a record and
shall at all times be subject to inspection by the public; however such affidavit
may be temporarily sealed by the appropriate court upon application of the
attorney for the Commonwealth for good cause shown in an ex parte hearing.
Any individual arrested and claiming to be aggrieved by such search and
seizure or any person who claims to be entitled to lawful possession of such
property seized may move the appropriate court for the unsealing of such
affidavit, and the burden of proof with respect to continued sealing shall be
upon the Commonwealth. Each such clerk shall maintain an index of all such
affidavits filed in his office in order to facilitate inspection. No such warrant shall
be issued on an affidavit omitting such essentials, and no general warrant for the
search of a house, place, compartment, vehicle or baggage shall be issued. The
term "affidavit" as used in this section, means statements made under oath or
affirmation and preserved verbatim.
Failure of the officer issuing such warrant to file the required affidavit shall not
invalidate any search made under the warrant unless such failure shall continue
for a period of thirty days. If the affidavit is filed prior to the expiration of the thirtyday
period, nevertheless, evidence obtained in any such search shall not be
admissible until a reasonable time after the filing of the required affidavit.
Section 19.2-55 states:
Any person having authority to issue criminal warrants who willfully and knowingly
issues a general search warrant or a search warrant without the affidavit required
by § 19.2-54 shall be deemed guilty of a malfeasance.
Section 19.2-56 states:
The judge, magistrate or other official authorized to issue criminal warrants, shall
issue a search warrant if he finds from the facts or circumstances recited in the
affidavit that there is probable cause for the issuance thereof.
Every search warrant shall be directed to (i) the sheriff, sergeant, or any
8/1/2006 Magistrate Manual (Revision 30) VII-6
policeman of the county, city or town in which the place to be searched is
located, (ii) any law-enforcement officer or agent employed by the
Commonwealth and vested with the powers of sheriffs and police, or (iii) jointly
to any such sheriff, sergeant, policeman or law-enforcement officer or agent
and an agent, special agent or officer of the Federal Bureau of Investigation, the
Bureau of Alcohol, Tobacco and Firearms of the United States Treasury, the
United States Naval Criminal Investigative Service or the Drug Enforcement
Administration. The warrant shall (i) name the affiant, (ii) recite the offense in
relation to which the search is to be made, (iii) name or describe the place to be
searched, (iv) describe the property or person to be searched for, and (v) recite
that the magistrate has found probable cause to believe that the property or
person constitutes evidence of a crime (identified in the warrant) or tends to
show that a person (named or described therein) has committed or is
committing a crime.
The warrant shall command that the place be forthwith searched, either in day
or night, and that the objects or persons described in the warrant, if found there,
be seized. An inventory shall be produced before a court having jurisdiction of
the offense in relation to which the warrant was issued as provided in § 19.2-57.
(N.B. - Section 19.2-57 requires the officer who executes the warrant to file the
executed search warrant and an inventory of the seized items in the circuit court where
the search was made. In preparing the search warrant the magistrate should insert the
locality of the circuit court where the search is made in the body of the search warrant
in the following section of the warrant:
“You are further commanded to seize said property, persons, and/or objects,
if they be found and to produce before the ………………… Court an
inventory of all property, persons, and/or objects seized.”)
Any such warrant as provided in this section shall be executed by the policeman
or other law-enforcement officer or agent into whose hands it shall come or be
delivered. If the warrant is directed jointly to a sheriff, sergeant, policeman or
law-enforcement officer or agent of the Commonwealth and a federal agent or
officer as otherwise provided in this section, the warrant may be executed jointly
or by the policeman, law-enforcement officer or agent into whose hands it is
delivered. No other person may be permitted to be present during or participate
in the execution of a warrant to search a place except (i) the owners and
occupants of the place to be searched when permitted to be present by the
officer in charge of the conduct of the search and (ii) persons designated by the
officer in charge of the conduct of the search to assist or provide expertise in the
conduct of the search.
Every search warrant shall contain the date and time it was issued. However, the
failure of any such search warrant to contain the date and time it was issued
shall not render the warrant void, provided that the date and time of issuing of
said warrant is established by competent evidence.
8/1/2006 Magistrate Manual (Revision 30) VII-7
The judge, magistrate, or other official authorized to issue criminal warrants shall
attach a copy of the affidavit required by § 19.2-54, which shall become a part
of the search warrant and served therewith. However, this provision shall not be
applicable in any case in which the affidavit is made by means of a voice or
videotape recording or where the affidavit has been sealed pursuant to § 19.2-
54.
Any search warrant not executed within fifteen days after issuance thereof shall
be returned to, and voided by, the officer who issued such search warrant.
Subsection A of §19.2-56.1 states:
Any warrant sought for the search of a premises or the contents thereof belonging
to or under the control of any licensed attorney-at-law to search for evidence of
any crime solely involving a client of such attorney shall be issued only by a circuit
court judge. Any evidence seized pursuant to this section shall be inventoried
forthwith by the clerk of the issuing court and sealed by the issuing judge. As soon
thereafter as is practicable, the issuing judge shall conduct an in camera inspection
of the seized evidence in the presence of the attorney from whom the evidence
was seized. Following such inspection the issuing judge shall return any evidence so
seized which is determined to be within the scope of the attorney-client privilege
and not otherwise subject to seizure.
Section 19.2-57 states:
The warrant shall be executed by the search of the place described in the
warrant and, if property described in the warrant be found there, by the seizure
of the property. The officer who seizes any property shall prepare an inventory
thereof, under oath. An inventory of any seized property shall be produced
before the court designated in the warrant. The officer executing the warrant
shall endorse the date of execution thereon and shall file the warrant, with the
inventory attached (or a notation that no property was seized) and the
accompanying affidavit, unless such affidavit was made by voice or videotape
recording, within three days after the execution of such search warrant in the
circuit court clerk's office, wherein the search was made, as provided in § 19.2-
54. Saturdays, Sundays, or any federal or state legal holiday shall not be used in
computing the three-day filing period.
Section 19.2-59 states:
No officer of the law or any other person shall search any place, thing or person,
except by virtue of and under a warrant issued by a proper officer. Any officer or
8/1/2006 Magistrate Manual (Revision 30) VII-8
other person searching any place, thing or person otherwise than by virtue of
and under a search warrant, shall be guilty of malfeasance in office. Any officer
or person violating the provisions of this section shall be liable to any person
aggrieved thereby in both compensatory and punitive damages. Any officer
found guilty of a second offense under this section shall, upon conviction
thereof, immediately forfeit his office, and such finding shall be deemed to
create a vacancy in such office to be filled according to law.
Provided, however, that any officer empowered to enforce the game laws or
marine fisheries laws as set forth in Title 28.2 may without a search warrant enter
for the purpose of enforcing such laws, any freight yard or room, passenger
depot, baggage room or warehouse, storage room or warehouse, train,
baggage car, passenger car, express car, Pullman car or freight car of any
common carrier, or any boat, automobile or other vehicle; but nothing in this
proviso contained shall be construed to permit a search of any occupied berth
or compartment on any passenger car or boat or any baggage, bag, trunk, box
or other closed container without a search warrant.
C. THE AFFIDAVIT FOR SEARCH WARRANT (Form DC-338)
The person seeking the search warrant is known as the “affiant.” Under Virginia law, any
person, including private citizens, can be an affiant on a search warrant. It is rare, however,
for anyone other than a law enforcement officer to request a search warrant. Although
§19.2-56 allows an affiant to prepare an affidavit by means of a voice or videotape recording,
the affiant normally submits the facts supporting the search warrant on a written Affidavit for
Search Warrant [DC-338]. Regardless of how the affidavit is presented, the magistrate must
require the affiant to make oath or affirmation to the statements contained in the affidavit.
The Department of Judicial Services recommends that all information presented to the
magistrate during a search warrant probable cause hearing be preserved on the affidavit either
in an recording of the oral evidence, or in written format. While the Virginia Court of Appeals
in Polston v. Commonwealth, 255 Va. 500, 498 S.E.2d 924 (1998), upheld the validity
of a search warrant where a magistrate questioned an informant under oath during a search
warrant hearing without the testimony having been recorded, such a practice does not
preserve a record of all the facts presented to the magistrate. Without a written record, the
court may lack the necessary information to determine the validity warrant.
The affiant must swear to the affidavit in person or through a videoconference system before
an official authorized to administer oaths. An oath may not be administered over the
telephone. Section 19.2-3.1 allows the affiant to transmit the affidavit to the magistrate by
8/1/2006 Magistrate Manual (Revision 30) VII-9
facsimile process when the magistrate is communicating with the affiant through a
videoconference system. A magistrate may administer oaths via a videoconference system.
Section 19.2-54 allows the affiant to transmit the affidavit to magistrate through facsimile
process even when the magistrate is not communicating with the affiant through a
videoconference system as authorized in §19.2-3.1. In this situation, the affiant must swear
to the facts written in the affidavit in person before an official authorized to administer oaths.
The magistrate is not authorized to administer an oath over the telephone.
During the probable cause hearing, the magistrate must ascertain whether the search is to be
made within his or her judicial district. A magistrate does not have the authority to issue a
search warrant authorizing a search outside of the magistrate’s judicial district. California has
passed a law recognizing search warrants issued by judicial officers from other states where
the search is to be made within California. Although California law recognizes such search
warrants, Virginia magistrates lack the authority to issue such search warrants where the
searches are to be made outside of Virginia.
A magistrate, however, may issue a search warrant for a search in his or her judicial district
when the crime underlying the warrant occurred out of state. For example, a murder occurs
in North Carolina. The suspect lives in Halifax County, Virginia. The search warrant affidavit
supports a probable cause determination that the gun used in the murder is located in the
suspect’s residence in Halifax. Halifax County is located within the Tenth Judicial District.
Consequently, Virginia law authorizes any magistrate within the Tenth Judicial District to
issue the search warrant.
It is irrelevant whether a law enforcement officer needs a search warrant prior to conducting
a search. It is improper for a magistrate to decline to issue a search warrant solely on the
basis that the officer may conduct a lawful search without one. The magistrate’s function is
to determine whether probable cause exists for the search and the search is to be made within
his or her judicial district. The magistrate does not determine whether the officer may make
a warrantless search.
The magistrate should not assist the affiant in the completion of the affidavit since the
magistrate must later review the facts to determine probable cause. If a magistrate is involved
in the completion of the affidavit, the magistrate no longer is in the role of a neutral and
detached judicial officer. Stepping outside a judicial role by assisting or coaching the affiant
in the preparation of the affidavit, not only jeopardizes the integrity of the judicial system, but
8/1/2006 Magistrate Manual (Revision 30) VII-10
also invalidates any search made pursuant to the tainted warrant. Similarly, the magistrate
should never accompany the law enforcement officer when such officer executes the search
warrant. Again, such abandonment of judicial neutrality provides a basis to invalidate the
search.
The most important aspect of the search warrant probable cause hearing is the magistrate’s
review of the affidavit. To properly determine probable cause, the magistrate must insure that
the affidavit contains all information required by statute. Listed below is an affidavit checklist.
1. A DESCRIPTION OF THE PLACE, THING, OR PERSON TO BE SEARCHED
The affidavit must reasonably describe the place, thing, or person to be searched. A
reasonable description is one that is detailed enough to provide "the searching officers with
sufficient information to identify, without confusion or excessive effort," the place to be
searched, (See Manley v. Commonwealth, 211 Va. 146, 152, 176 S.E. 2d 309 (1970)).
House numbers, apartment numbers, directions and the name of the occupant are all helpful
and the affiant should included them if available. "A search warrant directed against a
multiple-occupancy structure is invalid if it fails to describe the particular sub-unit to be
searched with sufficient definiteness to preclude search of other units located in the larger
structure and occupied by innocent persons." (Manley v. Commonwealth, supra, at 151).
2. THE THINGS OR PERSONS THAT ARE THE SUBJECT OF THE SEARCH
If the property to be seized is contraband, the affiant does not have to describe the
contraband in great detail in the affidavit. But if the item or items are not contraband or if the
search is for a person, the affiant must describe as clearly and distinctly as possible the person
or items that are the subject of the search. Serial numbers, names, identification marks or a
general physical description should be included in the affidavit when possible. If the
description is so broad as to be an indiscriminate sweep of all books, records, pamphlets, etc.,
courts have ruled that such searches are unconstitutional for being general and exploratory
in nature. The Code of Virginia specifically identifies the following items as seizable and thus
the proper objects of a search warrant:
- Weapons or other objects used in commission of a crime;
- Articles or things the sale or possession of which is unlawful;
- Stolen property or the fruits of any crime;
8/1/2006 Magistrate Manual (Revision 30) VII-11
- Any object, thing, or person, including without limitation, documents, books,
papers, records or body fluids, constituting evidence of the commission of
crime.
Section 19.2-56 provides that a warrant may be issued "to search for and seize property
constituting evidence of a crime or tending to show that a particular person has committed
or is committing a crime… " The only limitation on seizure of items that constitute evidence
of a crime, is when such a seizure is prohibited by law. A magistrate may not issue a search
warrant where the thing to be searched for is not in existence. For example, a magistrate
does not have the authority to issue a search warrant to compel a person to give a
handwriting or voice sample. It is appropriate, however, for the magistrate to issue a search
warrant authorizing a search and seizure of handwritten documents or voice recordings that
are already in existence.
The Court of Appeals in the case of Morton v. Commonwealth, 16 Va. App. 946, 434 S.E.
2d 890 (1993) upheld the validity of an “all persons present” search warrant in limited cases.
In this case the magistrate authorized a search of an apartment, a search of a specific person,
and the search of all other persons inside the apartment at the time of the execution of the
search warrant. The search warrant affidavit established probable cause that the apartment
was a crack house. The Court of Appeals held that based on the totality of the
circumstances, the facts “established a substantial ‘nexus’ between the observation of
cocaine in the apartment, the observation of the distribution of cocaine, the private nature of
the apartment, and the easily concealable contraband sufficient to support an ‘all persons
present’ warrant.” Since the Court concluded that the search warrant affidavit established
probable cause that the people present “would be engaged in criminal activity,” the Court held
that the search warrant was proper.
3. THE MATERIAL FACTS CONSTITUTING THE PROBABLE CAUSE
The affidavit must set out facts sufficient to establish probable cause. Probable cause is
defined as a reasonable determination by the magistrate that seizable items are located at the
place to be searched. This determination need not be based on absolute certainty. It requires
only a reasonable belief involving not legal technicalities but common sense and logic. (See
United States v. Ventresca, 380 U.S. 102 (1965).) Initially, the United States Supreme Court
in Aguilar v. Texas, 278 U.S. 108 (1964), held that a determination of probable cause actually
involved a two-step process whereby the magistrate must make two distinct determinations:
8/1/2006 Magistrate Manual (Revision 30) VII-12
1. That the facts in the affidavit logically indicate the presence of seizable items; and,
2. That the facts in the affidavit are reliable.
In 1983, the U.S. Supreme Court overruled Aguilar v. Texas and abandoned the two-pronged
test in favor of a “totality of the circumstances test” set forth in Illinois v. Gates, 462 U.S.
213, 231 (1983). The Court in Gates specifically held that "The task of the issuing magistrate
is simply to make a practical, common sense decision, whether, given all the circumstances
set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of
persons supplying hearsay information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place. And the duty of a reviewing court is simply to
ensure that the magistrate has a "substantial basis for . . . conclud[ing]" that probable cause
existed."
Even under the holding of Illinois v. Gates, an informer's tip which is a mere conclusion and
sets forth no basis of knowledge is inadequate to establish probable cause. The Gates cases,
however, allows a judicial officer to find probable cause for issuance of a search warrant when
an unreliable informant provides the facts if the affiant can corroborated the facts through
other means. Although the Supreme Court abandoned the Aguilar analysis in favor of totality
of the circumstances test, the principles of Aguilar still remain useful in analyzing definitions
of probable cause.
The leading case on probable cause coming from the United States Supreme Court is Maryland
v. Pringle, 540 U.S. __ 02-809 (2003). A Maryland Court convicted the defendant of
possession with intent to distribute cocaine and possession of cocaine. The Maryland Court
of Special Appeals affirmed the conviction, but the Maryland State Court of Appeals reversed
the conviction. The State of Maryland then appeals to the United States Supreme Court. The
facts are as follows. The defendant was sitting in the passenger seat of a car being driven
by the car’s owner. Another passenger was seated in the back. A Baltimore County police
officer stopped the car for speeding. The owner of the car consented to a search of the
vehicle. During the search the officer seized $763 from the glove compartment and five
glassine baggies of cocaine that were hidden between the back-seat armrest and the back
seat. When questioned, all three of the car’s occupants denied ownership of the money or
drugs. The officer threatened that if one of the three did not acknowledge ownership of the
items, he was going to arrest all three for possession of cocaine with intent to distribute. The
suspects refused to provide any information, and the officer arrested all of them. The
defendant in this appeal argued that the officer lacked probable cause to arrest him for the
8/1/2006 Magistrate Manual (Revision 30) VII-13
possession of the drug. In the opinion, the United States Supreme Court wrote “[u[nder the
Fourth Amendment, made applicable to the States by the Fourteenth Amendment, Mapp v.
Ohio, 367 U.S. 643 (1961), the people are ‘to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but
upon probable cause . . . .’” Citing United States v. Watson, 423 U.S. 411, 424 (1976) the
Court went on to write that “[a] warrantless arrest of an individual in a public place for a
felony, or a misdemeanor committed in the officer's presence, is consistent with the Fourth
Amendment if the arrest is supported by probable cause.” The Courts explanation of probable
cause is found in the following part of the opinion:
“The long-prevailing standard of probable cause protects “citizens from rash and
unreasonable interferences with privacy and from unfounded charges of crime,” while
giving “fair leeway for enforcing the law in the community's protection.” Brinegar v.
United States, 338 U.S. 160, 176 (1949). On many occasions, we have reiterated that
the probable-cause standard is a “‘practical, nontechnical conception’” that deals with
“‘the factual and practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.’” Illinois v. Gates, 462 U.S. 213, 231 (1983)
(quoting Brinegar, supra, at 175-176); see, e.g., Ornelas v. United States, 517 U.S.
690, 695 (1996); United States v. Sokolow, 490 U.S. 1, 7-8 (1989). “[P]robable
cause is a fluid concept — turning on the assessment of probabilities in particular
factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.”
Gates, 462 U.S., at 232.
The probable-cause standard is incapable of precise definition or quantification into
percentages because it deals with probabilities and depends on the totality of the
circumstances. See ibid.; Brinegar, 338 U.S., at 175. We have stated, however, that
“[t]he substance of all the definitions of probable cause is a reasonable ground for
belief of guilt,” ibid. (internal quotation marks and citations omitted), and that the belief
of guilt must be particularized with respect to the person to be searched or seized,
Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In Illinois v. Gates, we noted:
“As early as Locke v. United States, 7 Cranch 339, 348 [Slip Op. 5] (1813), Chief
Justice Marshall observed, in a closely related context: ‘[T]he term “probable cause,”
according to its usual acceptation, means less than evidence which would justify
condemnation . . . . It imports a seizure made under circumstances which warrant
suspicion.' More recently, we said that 'the quanta . . . of proof’ appropriate in
ordinary judicial proceedings are inapplicable to the decision to issue a warrant.
Brinegar, 338 U.S., at 173. Finely tuned standards such as proof beyond a reasonable
doubt or by a preponderance of the evidence, useful in formal trials, have no place in
the [probable-cause] decision.” 462 U.S., at 235.”
In holding that there was probable cause for the arrest of all three persons, and consequently
holding that the defendant’s arrest did not contravene the Fourth and Fourteenth
8/1/2006 Magistrate Manual (Revision 30) VII-14
Amendments, the court wrote:
“We think it an entirely reasonable inference from these facts that any or all three of
the occupants had knowledge of, and exercised dominion and control over, the
cocaine. Thus a reasonable officer could conclude that there was probable cause to
believe Pringle committed the crime of possession of cocaine, either solely or jointly.
… Here we think it was reasonable for the officer to infer a common enterprise
among the three men. The quantity of drugs and cash in the car indicated the likelihood
of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent
person with the potential to furnish evidence against him.” The Court, however, citing
United States v. Di Re, 332 U.S. 581 (1948), pointed out that “’[a]ny inference that
everyone on the scene of a crime is a party to it must disappear if the Government
informer singles out the guilty person.’ … No such singling out occurred in this case;
none of the three men provided information with respect to the ownership of the
cocaine or money.”
The principles set forth in the Pringle case are applicable to both probable cause hearings for
arrests and searches and seizures.
a. Determination of the logical validity of the facts in the affidavit
Obviously a magistrate can do little to improve his inherent common sense and logic, other
than to familiarize himself with factual situations that have been held to constitute probable
cause in the past. While familiarity with past decisions is obviously desirable, it is not a
foolproof method of determining probable cause since the type of facts that are sufficient to
establish probable cause vary with the particular situation and must be determined on a caseby-
case basis.
When a court finds a lack of probable cause, it is frequently not because probable cause did
not exist in fact, but because it was not set out in the affidavit. The most important measure
a magistrate can take to insure that probable cause exists, is to be sure that he has facts
rather than conclusions upon which to exercise common sense and logic. A reviewing court
may disagree with the magistrate's determination that the facts establish probable cause, but
this question is never reached and the warrant is automatically invalid if no facts were
presented to the magistrate. The determination that probable cause exists is a conclusion that
only the magistrate may reach, and he can only reach this conclusion after considering a
factual situation set forth in the affidavit. No one, not even the Attorney General himself, can
merely relay a conclusion to the magistrate and have the magistrate act on the conclusion.
If the Attorney General were to file an affidavit that states: "I desire to search John Smith's
8/1/2006 Magistrate Manual (Revision 30) VII-15
house because I know he has stolen property in the house," the magistrate would be required
to say that the search warrant cannot be issued without establishing sufficient facts. In the
above example since there are no facts for the magistrate to consider, he would be reduced
to rubber-stamping the Attorney General's conclusion.
The magistrate should approach every affidavit with a frame of mind which demands; “do not
merely set out your conclusions or hunches, inform me of the facts and I will decide if there
is probable cause to search the premises.” The reason that the magistrate himself must make
the determination of probable cause is because the magistrate serves as a neutral judicial
officer. The magistrate exercises great power in determining the constitutional right to be free
of unreasonable searches and such an important constitutional right is not to be taken lightly.
The magistrate must never allow himself to become a puppet for police officers because the
magistrate is not an arm of the law enforcement. The magistrate serves in a capacity of a
judge weighing the competing interests in crime detection versus the interest in protecting
individual freedoms. The constitution interposes the magistrate between the police and the
private citizen. The police are "engaged in the often competitive enterprise of ferreting out
crime" (Johnson v. U.S., 333 U.S. 10, 13 (1948)) whereas the magistrate, as a judicial
officer, is not actively involved in criminal investigation and thus can be more detached and
objective in weighing the facts. Thus, if an officer were to file an affidavit stating that the
officer believed John Smith had stolen property in his apartment because Smith "looks" like
a criminal and the officer has a "hunch" about Smith, the magistrate should determine that
looks and hunches amount to mere suspicion. While this suspicion is an adequate basis for
continued investigation by the police, it is not an adequate factual basis for a determination
of probable cause upon which to issue a search warrant.
An example of sufficient facts to establish probable cause would be where the officer
swearing to the affidavit states that he personally observed John Smith carry 20 portable
televisions into his apartment at 3:00 a.m. on the morning of January 3. The affidavit further
states that the police have received a complaint from the owner of an appliance store that 20
portable televisions were stolen during the evening of January 2. Such an affidavit would
clearly furnish the magistrate with sufficient facts to establish probable cause that stolen
items are located in a specific location. The magistrate need accept no one's conclusions.
He can examine the fact that Smith was seen transporting 20 portable televisions the morning
after 20 portable televisions were stolen and can form a reasonable belief that the 20 stolen
televisions are now in Smith's apartment. Note that the determination of probable cause does
not preclude the possibility that Smith's televisions are not in fact stolen.
8/1/2006 Magistrate Manual (Revision 30) VII-16
Smith may have a perfectly innocent explanation, but that is an issue for trial. The magistrate
need only form a reasonable belief of the likelihood of the stolen televisions being in Smith's
apartment. Smith's ultimate explanation, if any, does not alter the existence of probable
cause because it does not alter the factual situation before the magistrate at the time he
issued the warrant.
The facts of Colaw v. Commonwealth, 32 Va. App. 806, 531 S.E.2d 31 (2000) offer a prime
example of a search warrant affidavit totally lacking facts to support the issuance of a search
warrant. In Colaw, a deputy obtained a search warrant from the magistrate that authorized
the search of a residence where a party was to occur. The search warrant affidavit stated:
“[O]n September 12th 1997 a reliable informant called me by phone and
noticed me of a party at Steven Wimer’s residence that the people there will be
using and selling narcotics.”
The confidential informant was described as someone who has
"displayed knowledge of drug use and distribution on numerous occasions. This
informant has given information in the past that has led to 2 arrests."
The magistrate issued the warrant at 12:46 am on September 13, 1997, and the deputy
served the warrant at 2:10 a.m. During the search of the residence the deputy discovered
cocaine and a small scale in defendant’s overnight bag. He also found packaging material and
a metal spoon under a towel on the table where the overnight bag was. The defendant made
a motion to suppress the evidence seized because the affidavit lacked sufficient probable
cause for issuance of the search warrant. The trial court agreed that the affidavit did not
establish probable cause and ruled the evidence inadmissible under the good faith exception
to the exclusionary rule. On appeal, the defendant argued that “that the affidavit underlying
the warrant was a ‘bare-bones affidavit’” and that it was "so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable." Quoting United
States v. Leon, 468 U.S. 897 (1984), the Court of Appeals stated: "’Under the good faith
exception [to the exclusionary rule] evidence illegally seized is admissible if the officer
conducting the search reasonably relied on a search warrant issued by a detached and neutral
magistrate.’" The Court further cited U.S. v. Leon and stated:
“The good faith exception to the exclusionary rule is not available in the
following four instances: (1) Where the magistrate was misled by information
in the affidavit which the affiant knew was false or should have known was
false; (2) the issuing magistrate totally abandoned his judicial role, (3) the
warrant was based on an affidavit "so lacking in indicia of probable cause" as
to render official belief in its existence unreasonable or (4) where the warrant
was so facially deficient that an executing officer could not reasonably have
assumed it was valid.”
8/1/2006 Magistrate Manual (Revision 30) VII-17
The Court of Appeals agreed with the trial court that the search warrant affidavit lacked
probable cause for three reasons.
(1) “[I]t failed to provide a basis for the source of the affiant's knowledge.”
(2) “[T]he warrant was an invalid anticipatory search warrant.”
(Citing McNeill v. Commonwealth, 10 Va. App. 674, 395 S.E.2d
460, (1990), the Court pointed out that “[a]n anticipatory search
warrant is valid only when 'probable cause [exists] to believe that
the items to be seized will be at the place to be searched at the
time the warrant is executed.'
{In explaining the affidavit’s deficiency, the Court further stated
that:
“the affidavit failed to articulate the basis for the informant's
knowledge that the party would be occurring at the Wimer
residence or that it would occur on September 13. Further, it
failed to state the basis for his knowledge that drugs would be
present at the residence. No evidence indicated that the
informant had been told of a party planned at the Wimer
residence September 13 or that he had been invited to a party
there. Insofar as the record shows, the informant may have only
been aware that parties were regularly held at the Wimer
residence, and the warrant was issued on September 13 in
anticipation that a party would be held there.”}
(3) “The affidavit also failed to provide a reason or explanation for the
informant's knowledge that the criminal activity would occur.”
The Court commented further:
“Here, the same police officer was both the affiant and the executing officer.
However, the affidavit contains no facts, and presumably the affiant was aware
of none, that would support the conclusion that people were at the residence
to be searched or would be there on September 13 or that they would be ‘using
and selling drugs.’ The affidavit merely stated a conclusory declaration by a
third party informant that people at the residence ‘will be using and selling
narcotics. A police officer could not reasonably have believed that the warrant
was properly issued when it was based on a ‘bare bones’ affidavit that
contained only conclusory assertions by a third-party informant about a future
event without supporting facts to constitute probable cause …”
8/1/2006 Magistrate Manual (Revision 30) VII-18
“An executing officer, making an objective assessment of the warrant, would
find no facts in the warrant to support a reasonable, good faith’ belief that
drugs would be at the residence at a future time. The affidavit states, in effect,
that an undisclosed informant said drugs would be at a certain residence at an
unspecified future date and time. Based on the affidavit, the informant did not
report having been inside the residence, having seen anyone purchase or sell
drugs inside the residence, or having seen anyone using drugs inside the
residence. Neither the affiant nor the informant reported having witnessed a
drug transaction in the residence or a drug transaction involving anyone who
was there or resided there. The affidavit contains no statement which asserts
that anyone saw drugs in the residence or on a person at the residence. See
Janis v. Commonwealth, 22 Va. App. 646, 653-54, 472 S.E.2d 649, 653
(1996) (holding that the ‘affidavit gave absolutely no indication that the fruits
of criminal activity would probably be found at that location, rendering [the
officer's] belief in probable cause, based solely on the affidavit, objectively
unreasonable’), aff'd en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996); see
also Atkins, 9 Va. App. at 464, 389 S.E.2d at 180 (holding that evidence was
admissible under the good faith exception where the affidavit contained ‘a
detailed description of the nature of the offense, the premises to be searched,
the items for which they were searching, and the transaction which led the
informant to believe that the drugs would be in this apartment’). Only by blindly
accepting the informant's conclusory statement could one believe that drugs
would be at the residence. Accordingly, we find that the affidavit was ‘so
lacking in an indicia of probable cause as to render official belief in its existence
entirely unreasonable.’
The case of Anzualda v. Commonwealth, 42 Va. App. 481, 592 S.E.2d 761 (2004) provides
another example of a clearly defective search warrant affidavit. The material facts contained
in the search warrant affidavit were as follows:
“On March 17, 2000, Carlos Tolentito and Hildeberto Velasco were shot to
death with 9 millimeter rounds on Occohannock Neck Road. An individual
incarcerated in the Northampton County Jail has become a suspect in the
offense in that he has made incriminating statements to at least three persons.
An intimate friend of the suspect has informed the undersigned that the suspect
informed the intimate friend that he had traded a pistol to an individual known
as ‘Cowboy’ for marijuana, ‘Cowboy’ being known to her as residing at the
place to be searched. The undersigned has personal knowledge that ‘Cowboy’
is Delio Anzualda.”
The thing to be searched for was “a 9 millimeter pistol and/or ammunition.”
The deputy seized cocaine, marijuana, two rifles, and a shotgun during the search. The pistol
was not among the items seized. The defendant’s attorney argued the facts presented in the
affidavit did not support a probable cause finding that the pistol would be located in the
8/1/2006 Magistrate Manual (Revision 30) VII-19
defendant’s home. In holding that the affidavit was insufficient to support probable cause,
the Court of Appeals wrote:
“The timing nexus is particularly deficient in this affidavit. Without specifying any
dates, the affidavit relates that an unidentified suspect told a friend, who was an
unidentified informant, that he (the suspect) traded a pistol to Anzualda. The affidavit
does not disclose when the suspect had the conversation with the informant.
Furthermore, the substance of the conversation does not convey any time frame or
other facts which would suggest when the suspect had the conversation. Indeed, the
conversation just as likely could have occurred a year prior to the date of the affidavit
as at any other hypothesized time.
Likewise, the affidavit does not disclose when the suspect traded the pistol. It does
not disclose whether the suspect transferred the pistol before or after the homicides.
Furthermore, the affidavit does not assert the pistol was ever seen in the residence or
even where the trade occurred. Indeed, the affidavit's statement of material facts does
not even disclose whether the pistol the suspect traded was a ‘9 millimeter’ firearm or
was believed to be a weapon capable of discharging ‘9 millimeter rounds.’ Thus, the
information communicated by the suspect does not disclose a reasonable probability
that the pistol the suspect traded would be at the residence on September 15, when
the warrant was issued and executed. The affidavit also does not allege that the
traded pistol was connected with the homicide. . . .
The only date or time reference contained in the affidavit is March 17, 2000, the date
of the homicides. Significantly, however, the affidavit leaves vague and undisclosed
the connection of the ‘suspect’ to the homicides. It notes only that a individual
incarcerated in jail ‘has become a suspect in the offense in that he has made
incriminating statements to at least three persons.’ By leaving unstated whether the
suspect's statements suggest that he was present during the homicides or that he
knew the identity of the killer or that he implicated himself as the killer, the affidavit
renders speculative when the transfer of the pistol occurred. Indeed, if the individual
has become a suspect merely because he told the informant and others that he traded
a pistol to Anzualda, then probable cause is non-existent because nothing in the
affidavit links the March 17, 2000 killings and the pistol. Only by assuming that the
suspect's statements suggested he was the killer could the magistrate conclude the
transfer of the pistol occurred after March 17, 2000. Such an assumption, however,
is grounded in no fact that is recited in the affidavit.”
Under some situations, it is proper for a magistrate to issue a search warrant when there are
no specific facts to link the item or items that are a basis of the search to the location of the
search. A recent case that illustrates this point is Gregory v. Commonwealth, 46 Va. App.
683, 621 S.E.2d 162 (2005). The Gregory case involved an appeal from a ruling in a
suppression hearing. In a jury trial, the circuit court convicted the defendant of second-degree
murder, felony eluding and three counts of possession of drugs with the intent to distribute.
The facts are as follows. A trooper stopped the car driven by the defendant for speeding.
8/1/2006 Magistrate Manual (Revision 30) VII-20
After the stop, the trooper began administering field sobriety tests. At that point, the
defendant got back into the car and the trooper jumped in to prevent the defendant from
driving off. While the trooper struggled with the defendant, the car took off but overturned
a short distance later. The trooper was killed as a result of the rollover. The defendant who
also sustained injuries was apprehended later on. He refused to give his name. The vehicle
had independent dealer license plates registered to Quick Enterprises, LLC. The defendant
was the registered agent for that company. The day after the incident, an investigator sought
a search warrant for the defendant’s residence. The purpose of the search was to ”’connect
Shawn D. Gregory to the BMW sedan with license plate JCG-8714.” The items of things to
be search for were “’all papers, documents, titles, or photographs showing usage or
ownership of this BMW.’” A magistrate issued the search warrant. During the search of the
residence, the officers observed drugs. Soon afterwards, an investigator obtained a second
search warrant to search for drugs in the residence. This search uncovered $600,000 worth
of cocaine and heroine and $125,207 in cash. On appeal the defendant argued that the
magistrate lacked probable cause to issue the first search warrant because the “affidavit failed
to state with requisite particularity that documents connecting him to the BMW existed or
would be found at his residence.”
Citing United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993), the Court of Appeals in
Gregory stated that the “crucial question in determining whether a search warrant is supported
by probable cause is whether the item to be seized is likely to be found in the place to be
searched.” In holding that the magistrate had probable cause to issue the search warrant the
court cited several holdings of prior cases. “The magistrate is free ‘to draw reasonable
inferences about where incriminating evidence is likely to be found, based on the nature of the
evidence and the type of offense.’” Gwinn v. Commonwealth, 16 Va. App. 972, 434 S.E.2d
901 (1993). “’[A] sufficient nexus can exist between a defendant's criminal [Page 691]
conduct and his residence even when the affidavit supporting the warrant ‘contains no factual
assertions directly linking the items sought to the defendant's residence.’” United States v.
Grossman, 400 F.3d 212, 217 (4th Cir. 2005). “In determining whether the affidavit provides
a sufficient nexus, ‘the nexus between the place to be searched and the items to be seized
may be established by the nature of the item and the normal inferences of where one would
likely keep such evidence.’” United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988).
“In Anderson, the court upheld a search warrant for the defendant's residence though the
affidavit did not link the firearm to the residence. The opinion relied on United States v.
Jacobs, 715 F.2d 1343, 1346 (9th Cir. 1983) (reasonable for magistrate to conclude clothing
would remain at the residence); United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975)
(gun owners generally keep them at home or on their persons); United States v. Rahn, 511
F.2d 290, 293 (10th Cir. 1975) (reasonable to assume weapons kept in residences); and
Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973) (“[a] very likely place to find
[pistols] would either be on the persons of the assailants or about the premises where they
lived”).”
“The Fourth Circuit Court of Appeals has consistently held that to establish probable cause
the magistrate must ‘review facts and circumstances as a whole and make a common sense
8/1/2006 Magistrate Manual (Revision 30) VII-21
determination of whether ‘there is a fair probability that contraband or evidence of a crime will
be found in a particular place.’” United States v. Williams, 974 F.2d 480, 481 (4th Cir. 1992)
(quoting Gates, 462 U.S. at 238). The facts and circumstances in the affidavit only need to
permit a person of reasonable caution to believe the articles sought would be found there. The
appellate review of the magistrate's decision is to determine whether there is a “substantial
basis” for the conclusion that probable cause exited. Simmons v. Poe, 47 F.3d 1370, 1379
(4th Cir. 1995). The facts presented to the magistrate need not provide certainty that the
objects sought will be found but need only establish a reasonable belief that evidence of the
crime will be found in the place to be searched. See United States v. Humphrey, 104 F.3d 65,
69 (5th Cir. 1997).”
In upholding the validity of the search warrant the Court of Appeals held that “the magistrate
could reasonably conclude that documents relating to ownership or use of a car existed and
would be kept with other personal papers in one's residence. The defendant and the BMW
were associated with the apartment. Documents related to the ownership and use of such a
vehicle are just the type of things people tend to keep in their homes among their papers and
personal effects. “Passports, personal identification, and bank records are precisely the sorts
of items which people tend to keep at home among their personal papers and effects.” United
States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982). The magistrate could reasonably infer
the defendant would keep records about the car he drove in the apartment where he lived.”
In applying the principles set forth in Gregory, the magistrate first should determine whether
the facts presented in the search warrant establish probable cause to link a specific person to
a crime. Secondly, the magistrate needs to determine from the facts whether the item or
items that form the basis of the search constitute evidence of that crime. Lastly, the
magistrate must make a common sense determination as to whether it is likely that a person
would keep the item or items that are the subject of the search in the place where the search
is to be made. In many cases the place to be searched will be the residence of the person.
The question then becomes whether it is likely that a person would keep this item in his
home.
b. Determination of the reliability of the facts in the affidavit
After determining that the facts set forth in the affidavit logically indicate that seizable items
are located in the place to be searched, the magistrate must make a second determination that
the facts set forth in the affidavit are reliable facts, i.e., there must be some indication that
the facts are true. There is no requirement that the reliability of the facts be established
beyond a reasonable doubt. Again, reasonableness is the standard and it is sufficient if the
magistrate has a reasonable basis for concluding that the facts are probably true.
8/1/2006 Magistrate Manual (Revision 30) VII-22
In the hypothetical affidavit where Smith was seen on January 3 carrying 20 portable
televisions, similar in appearance to the 20 televisions stolen on January 2, the magistrate
was justified in determining that the facts establish the likelihood that there are stolen
televisions in Smith's apartment. But a search warrant could not be issued at this point
because there is no basis for accepting that Smith was in fact seen with the televisions. After
examining the facts set out in the affidavit, the magistrate should demand that the affidavit
further set out the source of the facts, i.e., who saw Smith with the televisions? If the
affidavit stated merely that the police received their information from an anonymous phone
caller, then there is no basis upon which the magistrate can judge the reliability of the phone
caller. Without knowing anything about the phone caller, there is no way to determine if he
was telling the truth. The phone caller could be anyone with a grudge against Smith, and the
call could be totally false and just an effort to embarrass Smith. The magistrate has no facts
before him indicating that the source of the report is reliable. The results of a search cannot
be used to justify issuance of the warrant. This procedure would involve hindsight, and the
courts will only consider the facts before the magistrate at the time the warrant was issued.
As with the first determination of a reasonable belief that seizable items are present, the
magistrate must make the determination of reliability and the determination must be based on
facts. Were the affidavit to identify the phone caller as a person the police know to be
"reliable" this is a mere conclusion that the magistrate cannot rubber-stamp. The magistrate
should require the setting out, not of conclusions as to reliability, but of facts upon which the
magistrate himself can arrive at a conclusion that the phone caller is reliable. The police
probably have some basis for believing that the phone call is reliable and not a crank, or they
would not be requesting a search warrant. But the determination of reliability made by the
police does not satisfy the Fourth Amendment requirement that a judicial officer determine the
issuance of a search warrant. The police must pass on to the magistrate their basis for
crediting the report as reliable, and then the magistrate must independently consider the
factual basis and determine if it is sufficient to convince him that the report is reliable.
Thus, every affidavit must contain two sets of facts:
1. Facts logically indicating the presence of seizable items,
2. Facts indicating the reliability of the first set of facts.
The reliability of the first set of facts is not established merely because the police officer
swears to the affidavit. The officer is only swearing that to the best of his knowledge the
8/1/2006 Magistrate Manual (Revision 30) VII-23
facts are true, but his knowledge may not be adequate to satisfy the test of probable cause.
When a person prepares an affidavit setting out facts within his knowledge, there is one of
two ways he obtained "knowledge" of these facts. The affiant either personally observed the
facts, or someone told the officer that he or she observed the facts. When the affidavit
contains only facts personally observed by the officer, the magistrate is not confronted with
an informer situation and the magistrate need only determine the reliability of the officer. Law
enforcement officers are per se reliable. (See United States v. Ventresca, 380 U.S. 102
(1965) and Sauders v. Commonwealth, 218 Va. 294, 237 S.E.2d 762 (1977).) If the
magistrate determines that a law enforcement officer is the affiant, then the magistrate
accepts the facts as reliable unless the magistrate knows the officer is providing false or
misleading information in the affidavit. When the affidavit contains facts not personally
observed by the officer, an informer situation exists. An informer situation goes far beyond
just the classic "underworld" informer. Any time the person swearing to the affidavit sets out
a fact he has not personally observed, an informer situation exists.
In every informer situation, the magistrate must be given the facts that indicate the reliability
of the informer (the actual observer of the facts). The magistrate must always determine who
was the actual observer of the facts set forth in the affidavit and require some factual
evidence of the observer's reliability. Thus, if the affidavit states that the police received the
facts from informer X, the affidavit must go on to state whether informer X actually observed
these facts or whether he in turn received the facts from informer Y. In the latter case, it is
informer Y (the actual observer) whose reliability must be established.
Under the totality of the circumstances test, probable cause may exist even when the
informant does not see the exact action that constitutes a crime, but merely sees events
leading up to, and after, the crime. Consider Slade v. Commonwealth, 43 Va. App. 61, 596
S.E.2d 90 (2004). In this case, the Newport News Circuit Court convicted the defendant of
possession of cocaine with the intent to distribute. During the execution of a search warrant,
police discovered cocaine in the defendant’s residence. On appeal the defendant argued that
the trial court should have suppressed the evidence because the magistrate lacked probable
cause to issue the search warrant. The affidavit contained the following language:
“On December 4, 2002, this affiant received information from a confidential reliable
informant that he/she and a [sic] unwitting informant had been to an apartment known
as 438 Tara Court, #7. The reliable informant advised that he/she observed the
unwitting informant knock on the door of 438 Tara Court #7 and walk in with the U.S.
currency. The reliable informant advised that the unwitting informant returned and
8/1/2006 Magistrate Manual (Revision 30) VII-24
handed the reliable informant a quantity of cocaine and stated that there is more
cocaine for sale inside 438 Tara Court #7 when the reliable informant wanted more.
The reliable informant advised he/she had taken the unwitting informant to 438 Tara
Court #7 several times in the past and has given U.S. currency to the unwitting
informant to purchase cocaine from inside 438 Tara Court #7 and the unwitting
informant has stated that there is more cocaine for sale inside 438 Tara Court #7 when
the reliable informant wanted more.”
At the suppression hearing, the defendant stipulated that the “confidential reliable informant”
was indeed reliable, so that was never an issue on appeal. The defendant, however, argued
that no facts were presented in the affidavit to support the reliability of the “unwitting
informant.” In analyzing the case, the Court of Appeals noted that the United States Supreme
Court in Illinois v. Gates, 462 U.S. 213 (1983) stated: “Whether a warrant is supported by
probable cause is determined from the ‘totality-of-the-circumstances.’ … The task of the
issuing magistrate is simply to make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him, including the “veracity” and “basis of
knowledge” of persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . .
[concluding]’ that probable cause existed.”
Applying the Gates “totality of the circumstances” test the Court of Appeals upheld the
validity of the search warrant. Quoting McGuire v. Commonwealth, 31 Va. App. 584, 525
S.E.2d 43 (2000), the Court wrote “Ordinarily, an informant's controlled buy may constitute
probable cause sufficient for a magistrate judge to issue a warrant.” The Court in Slade went
on to state that “The affidavit provided a detailed description of the reliable informant who,
after giving ‘buy money’ to the unwitting informant, saw him knock on the door of the Tara
Court residence, walk in with U.S. currency, and return to hand the confidential informant
cocaine that he had purchased. The reliable informant stated that he had taken the unwitting
informant to the same address several times with the same result. Appellant stipulated that
the confidential informant was reliable, and it is his credibility that forms the basis for the
warrant. The unwitting informant was merely an instrument of the controlled buy.”
In an affidavit where an informant provides most of the information, the reliability of the
affiant is insufficient to establish the reliability of the informant because the affiant is merely
a relayer of the facts observed by the informer. The reliability of the affiant is meaningless
if the source of the information is unreliable. If the information comes from an unreliable
person, the information does not become reliable merely because someone who is reliable
8/1/2006 Magistrate Manual (Revision 30) VII-25
repeats it. Any test of reliability must begin by determining the person whose reliability is in
question. Thus a magistrate must always determine the ultimate source of the facts set forth
in the affidavit, and have some indication of the reliability of that ultimate source. (Who is the
ultimate source of the facts and how reliable is that source?) Determination of the person
whose reliability is in question does not necessarily require that the informer's identity be
revealed. Police factually may establish the reliability of informer X without ever revealing X's
true name. The factors listed below are some general principles that the magistrate may
consider as factors that bear on reliability:
(1) The source (observer) of the facts is a police officer. "Observations of fellow police
officers of the government engaged in a common investigation are plainly a reliable
basis for a warrant applied for by one of their numbers" (United States v. Ventresca,
380 U.S. 102 (1965)). Facts may be accepted as reliable when they are personally
observed by police officers. But reliability does not extend to facts discovered by police
through "investigation" versus observation. An investigation may have uncovered facts
whose only source is an unreliable informer.
Example of reliability established - The affidavit states that all of the facts in the
affidavit were relayed to the affiant by police officer Jones who personally
observed all of the facts. The facts may be accepted as reliable because Jones
who is a police officer observed them.
Example of failure to establish reliability - The affidavit states that the facts in
the affidavit were developed through investigation of the police department.
The magistrate does not know who observed the facts and thus there is no
indication of the reliability of the observer. The police department may have
obtained all the facts from an unreliable informer.
(2) The source (observer) of the facts has been reliable in the past. (See Jones v. United
States, 362 U.S. 257 (1960).). The magistrate must be presented with more than the
conclusions that the informer was reliable in the past. The magistrate must have facts
from which the magistrate can conclude that the informer was reliable in the past and
thus is reliable now.
Example of reliability established - The affidavit states that the source of the
facts is a person who, in the last two years, has given the police several tips
on drug possession, the several tips resulting in six convictions for illegal
possession of drugs.
8/1/2006 Magistrate Manual (Revision 30) VII-26
Example of failure to establish reliability - The affidavit states that the source
of the facts is an informer the police "know" to be reliable. Such a statement
is not adequate because the magistrate has no facts indicating reliability, only
an unsubstantiated conclusion by the police.
(3) The source (observer) of the facts is identified as a victim of a crime, eyewitness to a
crime, or concerned citizen. See Tamburino v. Commonwealth, 218 Va. 821, 241 S.E.
2d 762 (1978); Saunders v. Commonwealth, 218 Va. 294, 237 S.E. 2d 150 (1977);
Simmons v. Commonwealth, 217 Va. 552, 231 S.E. 2d 218 (1977); Brown v.
Commonwealth, 212 Va. 672, 187 S.E. 2d 160 (1972).
(4) The source (observer) of the facts personally appears before the magistrate. Section
19.2-72 of the Code of Virginia permits the magistrate to summon witnesses in order
to facilitate determination of probable cause. The theory is that the magistrate can
observe the appearance and demeanor of the person, and thus judge reliability as the
jury does with witnesses appearing in court. Although §19.2-72 permits such a
procedure, it is fraught with potential problems and the magistrate should discuss such
a situation with the chief magistrate before undertaking to call witnesses.
(5) The source (observer) of the facts has been corroborated as to some of the facts he
reports. Draper v. United States, 358 U.S. 307 (1959). The theory is that if the police
can independently establish the truth of some of the facts related by the informer, it is
reasonable to conclude that the remaining uncorroborated facts are also true.
Example - The informer stated that the suspect would be making a pickup of
heroin and would be bringing the heroin back with him. The informer named
and accurately described the suspect, and accurately stated that the suspect
would arrive by train on one of two specified mornings. When the police
verified that the information as to description, and the time and manner of
arrival were accurate, the United States Supreme Court held that probable
cause was established.
c. The Time Factor and Stale Probable Cause
The time during which the events set forth in the affidavit occurred is a prime element in
determining probable cause for the issuance of a search warrant. The magistrate must
8/1/2006 Magistrate Manual (Revision 30) VII-27
determine whether the facts presented create a reasonable belief that the same conditions
described in the affidavit exist at the time of the issuance of the warrant. Evidence that the
defendant illegally possessed drugs on a given date is not probable cause to believe he
possessed the drugs 72 days later. A substantial time lapse is not controlling, however, when
the magistrate reasonably can conclude from the facts that the defendant is continuing the
criminal activity and that the items to be seized are still at the place to be searched.
4. The Offense in Relation to Such Search
Section 19.2-54 requires the affidavit to substantially allege "the offense in relation to which
such search is to be made". An item is seizable only when it is contraband, or a tool, weapon,
fruit, instrumentality, or evidence, including a person, of a crime or stolen property. In other
words, the affidavit must set forth facts showing that the items or person to be seized relate
in one of these ways to a specific offense. Failure to allege a specific offense in the affidavit
may result in a finding that the search warrant is invalid. Thomas v. United States, 376 F. 2d
564 (1967). While arrest warrants are specifically directed against persons, search warrants
may be directed against property or the person. It is not necessary that the person whose
property is searched or seized be the one who committed the offense.
5. The Object, Thing or Person Searched for Constitutes Evidence
of the Commission of Such Offense
The affidavit must contain a statement that "the object, thing, or person searched for
constitutes evidence of the commission of such offense". The Affidavit for Search Warrant
form [DC-338] contains preprinted language that satisfies this statutory requirement.
Consequently, the affiant does not have to add anything to this statement.
6. Distribution of the Affidavit and Copies
The affiant should provide an original and two copies of the Affidavit for Search Warrant
[Form DC-338] to the magistrate. If the magistrate finds that probable cause exists from the
facts contained in the affidavit the magistrate must issue the search warrant and file the
original in the circuit court clerk's office wherein the search was made within seven days after
issuance of the warrant pursuant to §19.2-54. If the magistrate somehow forgets to file the
affidavit within seven days, the magistrate must file it as soon as possible. Filing the affidavit
thirty days or more after issuance of the search warrant jeopardizes the search.
8/1/2006 Magistrate Manual (Revision 30) VII-28
In many judicial districts, magistrates conduct probable cause hearings through a
videoconference system. In a situation where the magistrate issues a search warrant for a
search to be conducted in another part of his judicial district, the magistrate should NOT mail
the search warrant affidavit to the circuit court clerk’s office. Instead, the magistrate either
should drive to the other locality to file the affidavit or should mail the affidavit to a magistrate
who is in resident in the other locality and ask that person to file the affidavit with the circuit
court clerk’s office in person. In either case, a magistrate must deliver the search warrant
affidavit to the circuit court clerk’s officer in person. The magistrate who issues the search
warrant completes the “Certified to …” section on the front of the affidavit. The magistrate
who delivers the affidavit in person to the clerk’s office completes the “Delivered to …”
portion of the affidavit.
Upon motion of the Commonwealth's attorney, the court may order the affidavit sealed.
Section 19.2-56 requires the magistrate to attach the first copy of the affidavit to the original
of the search warrant. If the court sealed the affidavit, or the affidavit is in the form of a
voice or videotape recording, the magistrate does not have to attach the affidavit to the
search warrant. To give proper notice to the custodian of the place to be searched, the
magistrate needs to attach the second copy of the affidavit to the copy of the search warrant
which law enforcement will leave with the custodian. If the court seals the affidavit the
magistrate would not attach anything to this copy of the search warrant.
D. THE SEARCH WARRANT FORM [DC-339]
If the magistrate finds that the affidavit contains all of the necessary information, then the
magistrate must complete the Search Warrant form [DC-339]. The completion of the search
warrant itself does not require the setting forth of additional details. Therefore, the magistrate
should complete the warrant based on the information already provided on the affidavit. The
Department of Judicial Services recommends that the magistrate prepare the search warrant
rather than signing a search warrant prepared by the affiant. This will ensure that the search
warrant information match the intentions of the magistrate.
1. Preparation of Warrant
The Code of Virginia requires that every search warrant issued contain specific information.
The following text sets forth the statutorily required information. The magistrate must direct
the search warrant to any of the following entities:
8/1/2006 Magistrate Manual (Revision 30) VII-29
1. the sheriff, sergeant or any policeman of the county or city in which the place to be
searched is located; or
2. any law-enforcement officer or agent employed by the Commonwealth and vested with
the powers of sheriffs and police; or
3. jointly to any such sheriff, sergeant, policeman, or law-enforcement officer or agent
and an agent or officer of the Federal Bureau of Investigation, the Bureau of Alcohol,
Tobacco and Firearms of the United States Treasury, or the Drug Enforcement
Administration.
The magistrate must name the affiant and recite the offense in relation to which the search
is to be made in the search warrant. If based upon a local ordinance or a violation of the Code
of Virginia, the affiant must provide a description of the crime. Although it is not required by
statute, the affiant may provide a Code section number or local ordinance number for
reference in the Affidavit for Search Warrant form [DC-338]. The magistrate must name or
describe the place to be searched. In setting forth the description of the place the magistrate
should use the same description contained in the affidavit. The magistrate must describe the
property that is the object of the search or person who is the object of the search. Section
19.2-56 also requires that the search warrant contain a statement that the magistrate has
found probable cause to believe that the property or person constitutes evidence of a crime
as identified in the warrant, or tends to show that a person, named or described in the search
warrant has committed or is committing a crime. The Search Warrant form [DC-339] contains
preprinted language that satisfies this statutory requirement. Consequently, the magistrate
does not have to add anything to this statement.
The statute further requires that the search warrant command the appropriate officer to search
the place described in the warrant, either in day or night, and to seize the objects or persons
described in the warrant. The search warrant also must command the officer to produce the
seized items before the court having jurisdiction of the offense in relation to which the warrant
was issued. The preprinted Search Warrant form [DC-339] contains both of these commands.
Lastly, §19.2-56 requires the magistrate to insert the date and time of issuance and affix his
or her signature and title of "Magistrate" to the form.
Pursuant to §19.2-56, the magistrate must attach a copy of the affidavit to the original search
warrant unless a voice recording or videotape affidavit was presented or unless a court
ordered the sealing of the affidavit. The Department of Judicial Services also recommends
that the magistrate attach a copy of the search warrant to the original affidavit. As mentioned
previously, the magistrate has the authority to issue search warrants only when the search
8/1/2006 Magistrate Manual (Revision 30) VII-30
is to be made within the magistrate’s jurisdiction. Section 19.2-250 extends the jurisdiction
of cities one mile beyond the corporate limits of the cities. The Court of Appeals in the case
of Robertson v. Rogers, 2 Va. App. 503 (1986) applied this statute in upholding a search
warrant. In Robertson case, a judge in Danville issued a search warrant for a residence in
Pittsylvania County located within one mile of the city limits of Danville. The judge filed the
affidavit in the Danville Circuit Court Clerk’s office. Because of §19.2-250, the Court of
Appeals held that the filing of the affidavit in the City of Danville was permissible. (With the
exception of the towns located within Loudon County, §19.2-250 also extends the jurisdiction
of towns one mile beyond their corporate limits. Section 19.2-249 extends jurisdictions of
counties only 300 yards into a contiguous county or city. However, §19.2-250 extends the
jurisdiction of Chesterfield County one mile into the City of Richmond.)
As mentioned earlier, it is possible for a law enforcement officer to seek a search warrant in
Virginia based on a crime that occurred out-of-state. If the magistrate finds probable cause
and issues the search warrant, he or she must file the affidavit with the circuit court clerk in
the city or county where law enforcement made the search. As stated previously, the
magistrate lacks the authority to issue a search warrant if the search is to take place outside
the magistrate’s judicial district.
2. Execution and Return of the Search Warrant
Sections 19.2-56 and 19.2-57 require that the policeman or other law enforcement officer or
agent into whose hands the search warrant was delivered to execute the warrant by the
searching the place described in the warrant and by seizing any of the items listed in the
warrant. The officer seizing any property must prepare an inventory of the seized items under
oath. The magistrate may acknowledge the officer's oath by signing the back of the Search
Warrant form [DC-339] at data element #5 on the reverse. Section 19.2-57 further requires
the officer executing the warrant to endorse the date of execution on the back of the Search
Warrant form [DC-339] and file the executed warrant with a list of property seized, or a
notation that no property was seized, and the accompanying affidavit within three days after
the execution with the appropriate circuit court clerk.
If the officer does not execute the search warrant within fifteen days after issuance, he or she
must return the search warrant to the magistrate or other judicial officer who issued the
search warrant pursuant to the last paragraph of §19.2-56. The magistrate then marks on the
8/1/2006 Magistrate Manual (Revision 30) VII-31
face of the search warrant "Void For Lack Of Timely Service," signs and dates the warrant,
and files it with the clerk of circuit court who possesses the original affidavit.
E. ADMINISTRATIVE SEARCHES
1. Introduction
An administrative search, as defined by Katz v. United States and Camara v. Municipal Court,
is any government action which intrudes upon a legitimate expectation of privacy. Prior to
Katz v. United States, the Supreme Court had characterized the fourth amendment as primarily
concerned with searches for evidence of criminal activity and only peripherally concerned with
the right of privacy. In Frank v. Maryland, the Court held that "inspections" by health
department officials were not "searches" which triggered fourth amendment protections.
Camara v. Municipal Court later overturned the Frank and placed administrative searches
within the scope of the fourth amendment. Camara went on to hold that, absent consent or
exigent circumstances, a search warrant is required before the administrative search can take
place. The administrative search warrant, however, does not have to be based on traditional
probable cause which requires a reasonable belief that items related to a crime are located in
the premises that the government seeks to enter. Camara held that the reasonableness of the
government's request for administrative search warrants is determined by considering such
general factors as the passage of time since the last inspection, the condition of the particular
building, conditions in the general area, or the need for periodic inspections in an entire area
of the community. It is clear that, unlike a criminal search warrant, an administrative search
warrant need not to be based on specific knowledge of a violation in a particular building.
2. Probable Cause
Mosher Steel v. Tieg, 229 Va. 95 (1985) recognized that probable cause for administrative
search warrants may be of two distinct types. First, affidavits may establish the likelihood
of specific violations. In such situations, the standards for evaluating probable cause are
identical to the standards for criminal search warrants. Second, in the absence of specific
violations, affidavits may establish that the administrative inspection is based on more general
but still reasonable legislative or administrative standards.
For general inspection warrants, probable cause requires that reasonable legislative or
administrative standards be satisfied with respect to the particular establishment. Aguilar's
8/1/2006 Magistrate Manual (Revision 30) VII-32
requirement of factual allegations, not bare conclusions, applies to such affidavits. The
affidavit must provide the specific facts underlying each step of the procedure by which a
particular employer is selected for an administrative inspection. For example, if a selection is
based on an industry's high hazard ranking, the application must reveal specific empirical data
resulting in that ranking. If a particular employer is selected because of a high injury rate, the
affiant must substantiate the alleged injury rate with statistics. To ensure against arbitrary
inspections of a particular employer, the application should recite the employer's own
inspection history and the status of general schedule inspections of all employers subject to
inspection by the regional division of the inspecting agency.
Camara v. Municipal Court recognized two exceptions: (1) consent, and (2) emergency
situations. As to the consent searches, the Court recognized that "most citizens allow
inspection of their property without a warrant" and consequently "warrants should normally
be sought only after entry is refused." As to the emergency exception to the administrative
warrant requirement, such emergencies rarely occur in the housing inspection or business
inspection context. The following are specific types of administrative searches authorized
under Virginia law.
3. FIRE INSPECTION WARRANT (LOCAL FIRE OFFICIAL)
Sections 27-98.1 through 27-98.5 authorize a judge or magistrate to issue an "inspection
warrant." An inspection warrant means "an order in writing, made in the name of the
Commonwealth, signed by any judge or magistrate whose territorial jurisdiction encompasses
the building, structure or premises to be inspected or entered, and directed to a state or local
official, commanding him to enter and to conduct any inspection, examination, testing or
collection of samples for testing required or authorized by the Virginia Statewide Fire
Prevention Code."
While the probable cause standard and credibility factors of informants may be the same as
with any other search warrant, there are some differences in the procedure for fire inspection
warrants. The magistrate will find these differences explained in this section. If there is no
difference in procedures between a fire inspection warrant and a criminal search warrant, the
chapter will point this out.
The magistrate must find probable cause from the facts supplied in the affidavit before issuing
a fire inspection warrant. The affidavit must:
8/1/2006 Magistrate Manual (Revision 30) VII-33
(1) particularly describe the place, thing or property to be inspected,
examined or tested. (Refer to C.1. in this Chapter for explanation of
description of the place to be searched.)
(2) state the purpose for which the inspection, examination, testing or
collection of samples for testing is to be made. (See sections 2a. and
2b. of the Affidavit for Fire Inspection Warrant DC-380.)
(3) contain either a statement that consent to inspect, examine, test or
collect samples for testing has been sought and refused or facts or
circumstances reasonably justifying the failure to seek such consent in
order to enforce effectively the fire safety laws, regulations or
standards. In the case of an inspection warrant based upon legislative
or administrative standards for selecting buildings, structures, property
or premises for inspections, the affidavit must contain factual allegations
sufficient to justify an independent determination by the magistrate that
the inspection program is based on reasonable standards and that the
standards are being applied to a particular place in a neutral and fair
manner. (See section 4, of the Affidavit for Fire Inspection Warrant DC-
380 on the reverse of the form.) Section 27-98.2 allows the magistrate
to examine the affiant under oath or affirmation to verify the accuracy
of any matter in the affidavit.
(4) establish probable cause. Probable cause exists if such inspection,
examination, testing or collection of samples for testing is necessary to
ensure compliance with the Fire Prevention Code for the protection of
life and property from the hazards of fire or explosion. (See 3a and 3b,
of the Affidavit for Fire Inspection Warrant DC-380.)
(5) contain information for the magistrate to determine the duration of the
warrant. (See section 7, of the Affidavit for Fire Inspection Warrant DC-
380.) Inspection warrants are effective for the time specified in the
warrant. The time period, however, cannot exceed seven days. The
judicial officer may extend or renew the inspection warrant upon
application for extension or renewal setting forth the results that have
been obtained or a reasonable explanation of the failure to obtain such
results. The extension or renewal period of the warrant also cannot
exceed seven days.
(6) request authority to execute the warrant in the absence of the owner,
operator or agent in charge or to use forcible entry. (See section 6, of
the Affidavit for Fire Inspection Warrant DC-380.) The officer may not
execute the fire inspection warrant in the absence of the owner,
operator or agent in charge of the building, structure, property or
premises unless the magistrate specifically authorizes such method of
8/1/2006 Magistrate Manual (Revision 30) VII-34
execution in the Fire Inspection Warrant upon showing that such
authority is reasonably necessary to effect the purposes of a statute or
regulation being enforced. The officer may not make a forcible entry
pursuant to an inspection warrant unless the magistrate expressly
authorizes a forcible entry in the warrant. The magistrate may not
authorize forcible entry unless the affiant provides facts to establish:
(a) a reasonable suspicion of an immediate threat to an occupant of the
particular building, structure, property, or premises or, to the general
safety and welfare of the public, or to adjacent buildings, structures,
properties or premises, or
(b) that reasonable attempts to serve a previous warrant have been
unsuccessful.
The local official seeking the inspection warrant must complete the Affidavit for Fire Inspection
Warrant form [DC-380]. The magistrate should not complete or assist the official seeking an
inspection warrant in the completion of the affidavit since the magistrate must later adjudge
the facts to determine probable cause. The magistrate needs to retain the original affidavit.
Unlike the criminal search warrant affidavit, the magistrate does not file the Affidavit for Fire
Inspection Warrant [DC-380] with clerk of the circuit court. Each magistrate's office needs
to maintain a file for administrative search warrants and administrative search warrant
affidavits. The Affidavit for Fire Inspection Warrant [DC-380} is a master district court form.
The magistrate, therefore, must retain the proof of this form for copying purposes.
A magistrate is authorized to issue a fire inspection warrant only if the building, structure,
property, or premises is located within the magistrate’s judicial district. If the magistrate finds
that the affidavit contains all of the necessary information, the magistrate then must complete
the Fire Inspection Warrant form [DC-381]. The magistrate prepares the fire inspection
warrant based on the information provided in the affidavit. If the magistrate authorizes forced
entry, the magistrate must issue the warrant jointly to the fire official and to a law
enforcement officer who must accompany the fire official during the execution. The standards
for determining credibility and reliability of informants are the same as discussed earlier in the
chapter.
The warrant is effective for the time specified in the document. The time period, however,
may not exceed seven days, unless extended or renewed by the judicial officer who signed
and issued the original warrant. The executing official must return the fire inspection warrant
to the magistrate who issued it within the time specified in the warrant or within the extended
or renewed time. If the official does not execute the warrant within the specified time, the
warrant is void. The official must list any samples taken pursuant to the warrant in the
8/1/2006 Magistrate Manual (Revision 30) VII-35
inventory section of warrant on the reverse of the form. Once the local official has executed
the Fire Inspection Warrant, he or she will return the executed copy to the magistrate who
retains the executed warrant in the administrative search warrant file maintained by each
magistrate’s office.
A court lacks jurisdiction to hear a challenge to the warrant prior to its return to the judicial
officer who issued the warrant, except as a defense in a contempt proceeding, unless the
owner or custodian of the place to be inspected makes, by affidavit, a substantial preliminary
showing accompanied by an offer of proof that: (1) a false statement, knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in his
affidavit for the inspection warrant, and (2) the false statement was necessary to the finding
of probable cause.
After the warrant has been executed and returned to the issuing judge or magistrate, a court
may review the validity of the warrant as a defense to a citation issued. A circuit court also
may review the validity of the warrant in a declaratory judgment action. The review is
confined to the face of the warrant, affidavits, and supporting materials presented unless the
owner, operator, or agent in charge of the building or premises inspected makes a substantial
showing by affidavit accompanied by an offer of proof that: (1) a false statement, knowingly
and intentionally, or with reckless disregard for the truth, was made in support of the warrant;
and (2) a false statement was necessary to the finding of probable cause. The review is limited
whether there is substantial evidence in the record supporting the decision to issue the
warrant.
4. FIRE INVESTIGATION WARRANT (FIRE MARSHAL)
Section 27-31 requires the fire marshal for each locality to investigate the origin of all fires and
explosions that occur within the marshal’s jurisdiction. Section 27-32.2 describes the
procedures the marshal must follow in requesting a magistrate’s issuance of a fire
investigation warrant. In some cases, the fire marshal’s investigation requires only the
magistrate’s issuance of a fire investigation warrant. In other cases, the magistrate must first
issue a fire investigation warrant, and then a subsequent criminal search warrant. To begin
the process, the marshal must prepare an affidavit that is sworn to before the magistrate. The
marshal must provide facts to support the following findings:
1. The cause of the fire or explosion is undetermined.
2. The owner of the land, building, or vessel where the fire or explosion occurred, or the
owner of the object that exploded or caught fire has refused to allow the marshal to
enter the property to investigate the cause of the fire or explosion; or
8/1/2006 Magistrate Manual (Revision 30) VII-36
the marshal was unable to gain permission to enter the property for purposes of the
investigation.
3. Not more than 15 days have passed since the date the fire was extinguished.
If the magistrate finds probable cause that all three factors are present, the magistrate is
required to issue a fire investigation warrant that authorizes the fire marshal to enter the land,
building, or vessel where the fire occurred, or enter the premises where the object that
exploded or caught fire is located for the purposes of determining the origin and source of the
fire or explosion. Any magistrate serving the locality where the land, building, vessel, or
object is located may issue the fire investigation warrant. The Committee on District Courts
has not yet approved a district court form for either the affidavit or fire investigation warrant.
Until the committee approves the forms the following page contains an example of the
recommended form.
The magistrate needs to retain both the original affidavit and the executed fire investigation
warrant. The magistrate also needs to attach a copy of the affidavit to the copy of the fire
investigation warrant that is left with the owner of the property. Unlike the criminal search
warrant affidavit, the magistrate does not file the affidavit for the fire investigation warrant
with clerk of the circuit court. Each magistrate's office needs to maintain a file for
administrative search warrants and administrative search warrant affidavits. If the fire marshal
does not execute the warrant, he or she must return the warrant to the magistrate who marks
8/1/2006 Magistrate Manual (Revision 30) VII-37
FIRE INVESTIGATION WARRANT §§27-32.1; 27-32.2
TO THE FIRE MARSHAL:
You are hereby authorized, in the name of the
Commonwealth, to enter the following-described land,
building, vessel, or the premises:
……………………………………………………………………………………………………………………………………………………….
DESCRIPTION / LOCATION OF PLACE TO BE INSPECTED
…………………………………………………………………………………………………………………………………………………….
for the purpose of determining the origin and source of
fire or explosion.

I, the undersigned, found probable cause to believe,
based on the statement contained in the attached
affidavit sworn to by ……………………………………………………………………, that
(1) the origin or cause of the fire or explosion
on the land, building, vessel or of the object
described in the attached affidavit is
undetermined;
(2) the fire marshal was refused admittance or was
unable to gain permission to enter the land,
building, or vessel or, to examine the object
described in the attached affidavit within 15 days
following the extinguishment of the fire or
explosion.
____________________________ ____________________
DATE AND TIME OF ISSUANCE MAGISTRATE
FIRE INVESTIGATION WARRANT
COMMONWEALTH OF VIRGINIA
In re / V.
EXECUTED ON:
__________________________
Date
__________________________
Signature
__________________________
Name and Title
**************************
RETURNED TO MAGISTRATE
ON:
__________________________
Date
__________________________
Signature
__________________________
Name and Title
8/1/2006 Magistrate Manual (Revision 30) VII-38
it void for lack of execution. The magistrate then retains the voided warrant in the office’s
administrative search warrant files.
If after gaining access and during the fire investigation, the marshal has probable cause to
believe that the fire or explosion resulted in a criminal act, the marshal must discontinue the
search until a magistrate issues a criminal search warrant as provided in §27-32.1, or until he
has gained consent to search for evidence. Under this section, the fire marshal must prepare
a search warrant affidavit for submission to magistrate serving the locality where the land,
building, vessel, or object is located. To make such application, the marshal must provide
facts that support a probable cause determination that the fire or explosion was caused by a
criminal act. The correct form is the criminal Affidavit for Search Warrant [DC-338]. In
reviewing the affidavit, the magistrate must make all the necessary probable cause findings
associated with a criminal search warrant. In addition, the affidavit must contain facts to
support that the fire marshal was refused admittance to the land, building, or vessel where
the fire or explosion occurred, or was refused admittance to property where the object that
exploded or caught fire is located. The affidavit also must contain facts to support that the
fire marshal was refused admittance to the property within 15 days from the date that the fire
was extinguished. If the magistrate finds probable cause for issuance of the search warrant,
the magistrate must direct the search warrant to the sheriff of the locality where the search
is to be made. The proper form for this search is the criminal Search Warrant [DC-339]. The
sheriff then must make entry upon the property and accompany the fire marshal during a
search for evidence that would indicate the fire or explosion was cause by a criminal act
defined in Article 1, Chapter 5, or Title 18.2 of the Code of Virginia. That Article
encompasses §§18.2-77 through 18.2-88.
There currently is no district court form in existence for the fire investigation warrant. The
magistrate may photocopy the prototype form shown on the preceding page in the chapter.
The fire marshal should not use the Affidavit for Search Warrant form DC-339 to apply for
the fire investigation warrant. Rather, he should prepare an affidavit containing facts to
support the findings necessary for the magistrate’s probable cause determination.
5. RELEASE OF HAZARDOUS MATERIAL OR WASTE OR REGULATED SUBSTANCE
INVESTIGATION WARRANT (FIRE MARSHAL)
Section 27-37.1 authorizes a magistrate to issue an investigation warrant to the fire marshal
to enter property to determine the origin and source of release of hazardous material,
8/1/2006 Magistrate Manual (Revision 30) VII-39
hazardous waste, or regulated substance as defined in §§10.1-1400 or 62.1-44.34:8.
Section 10.1-1400 defines “hazardous material” and “hazardous waste” as follows:
“'Hazardous material' means a substance or material in a form or quantity which may
pose an unreasonable risk to health, safety or property when transported, and which the
Secretary of Transportation of the United States has so designated by regulation or
order.”
“'Hazardous waste' means a solid waste or combination of solid waste which, because
of its quantity, concentration or physical, chemical or infectious characteristics, may:
1. Cause or significantly contribute to an increase in mortality or an
increase in serious irreversible or incapacitating illness; or
2. Pose a substantial present or potential hazard to human health or
the environment when improperly treated, stored, transported,
disposed of, or otherwise managed.”
Section 62.1-44.34:8 defines “regulated substance” as follows:
“'Regulated substance' means an element, compound, mixture, solution, or substance
that, when released into the environment, may present substantial danger to the public
health or welfare, or the environment.
The term "regulated substance" includes:
1. Any substance defined in § 101(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, but not any substance regulated as a hazardous waste
under Subtitle C of the Resource Conservation and Recovery Act
of 1976; or
2. Petroleum, including crude oil or any fraction thereof, which is
liquid at standard conditions of temperature and pressure (sixty
degrees Fahrenheit and 14.7 pounds per square inch absolute).”
When authorized by the governing body of the county, city, or town appointing the fire
marshal, the fire marshal has the right to enter upon property from which a release of
hazardous material, hazardous waste, or regulated substance has occurred or is reasonably
suspected to have occurred and that has entered into the ground water, surface water, or soils
of the county, city or town. The purpose of the fire marshal’s entry is to investigate the
extent and cause of the release of the hazardous material or waste.
8/1/2006 Magistrate Manual (Revision 30) VII-40
Section 27-37.1 requires the fire marshal to submit an affidavit under oath to the magistrate.
The proper form for the affiant to use is the Affidavit for Release of Hazardous Material or
Waste or Regulated Substance Investigation Warrant [DC-388]. From the affidavit, the
magistrate must determine that probable cause exists for the following:
1. The waste, substance or material in question falls within one of the definitions set forth
in §§10.1-1400 or 62.1-44.34:8 (see above);
2. A release of the hazardous material, waste or substance has occurred.
3. The cause of the release is undetermined.
4. The owner of the property or the person having control over such property refused to
allow the marshal to enter the property to investigate the origin and source of the
hazardous material; or
the marshal was unable to gain permission to enter the property for purposes of the
investigation.
Any magistrate serving the locality where the property is located may issue the hazardous
material investigation warrant. The magistrate needs to retain the original affidavit. Unlike
the criminal search warrant affidavit, the magistrate does not file the Affidavit for Release of
Hazardous Material or Waste or Regulated Substance Investigation Warrant [DC-388] with
clerk of the circuit court. Each magistrate's office needs to maintain a file for administrative
search warrants and administrative search warrant affidavits.
If the magistrate finds that the affidavit meets all statutory and probable cause requirements,
he or she then prepares the investigation warrant. The magistrate retains the original of the
affidavit. The magistrate also needs to attach a copy of the affidavit to the copy of the fire
investigation warrant that is left with the owner of the property. The proper form is the
Release of Hazardous Material or Waste or Regulated Substance Investigation Warrant [DC-
389]. The magistrate completes the warrant based on the information provided in the
affidavit. Once the fire marshal has executed the Release of Hazardous Material or Waste or
Regulated Substance Investigation Warrant, he or she will return the executed copy to the
magistrate who retains the executed warrant in the administrative search warrant file
maintained by each magistrate's office. If the fire marshal does not execute the warrant, he
or she must return the warrant to the magistrate who marks it void for lack of execution. The
8/1/2006 Magistrate Manual (Revision 30) VII-41
magistrate then retains the voided warrant in the office’s administrative search warrant files.
Both the affidavit and investigation warrant forms are master district court forms. The
magistrate, therefore, must retain the proofs of these forms for copying purposes.
If after gaining access pursuant to the investigation, the marshal has probable cause to believe
that the release of the materials resulted in a criminal act, the marshal must discontinue the
search until a magistrate issues a criminal search warrant or until he has gained consent to
search for evidence. Under this section, the fire marshal must prepare a search warrant
affidavit for submission to magistrate serving the locality where the property is located. To
make such application, the marshal must provide facts that support a probable cause
determination that the release of the hazardous material, waste, or substance was caused by
a criminal act. The correct form is the criminal Affidavit for Search Warrant [DC-338]. In
reviewing the affidavit, the magistrate must make all the necessary probable cause findings
associated with a criminal search warrant. If the magistrate finds probable cause for issuance
of the search warrant, the magistrate must direct the search warrant to the sheriff of the
locality where the search is to be made. The proper form for this search is the criminal Search
Warrant [DC-339]. The sheriff then must make entry upon the property and accompany the
fire marshal during a search for evidence.
6. PESTICIDE CONTROL ADMINISTRATIVE SEARCH WARRANT
Section 3.1-249.58 authorizes the Commissioner of Agriculture and Consumer Services or the
Commissioner's agent to enter any public or private premises operating as a pesticide business
at reasonable times upon presenting proper credentials and with the consent of the owner or
tenant of the premises for the purpose of
1. having access for the purpose of inspecting any equipment subject to
the Virginia Pesticide Control Act;
2. inspecting storage or disposal areas,
3. inspecting or investigating complaints of injury to humans, animals,
birds or property;
4. sampling any pesticide being applied or to be applied; or
5. enforcing any provision of the Virginia Pesticide Control Act (Chapter
14.1 or Title 3.1, Code of Virginia.
8/1/2006 Magistrate Manual (Revision 30) VII-42
Section 3.1-249.27 defines “pesticide business” as meaning:
“any person engaged in the business of: distributing, applying or recommending the use
of a product; or storing, selling, or offering for sale pesticides directly to the user. The
term "pesticide business" does not include (I) wood treaters not for hire; (ii) seed
treaters not for hire; (iii) operations which produce agricultural products unless the
owners or operators of such operations described in clauses (I), (ii), and (iii) are engaged
in the business of selling or offering for sale pesticides, or distributing pesticides to
persons outside of that agricultural producing operation in connection with commercial
transactions; or (iv) businesses exempted by regulations adopted by the Board.”
Section 3.1-249.27 defines “pesticide” as
“(I) any substance or mixture of substances intended for preventing, destroying,
repelling, or mitigating any insects, rodents, fungi, bacteria, weeds, or other forms of
plant or animal life or viruses or bacterium, except viruses on or in living man or other
animals, which the Commissioner shall declare to be a pest, (ii) any substance or mixture
of substances intended for use as a plant regulator, defoliant, or desiccant, and (iii) any
substance which is intended to become an active ingredient in any substance defined
in clause (I) and (ii).”
If the Commissioner or agent is denied access, he or she may apply to a judge or magistrate
for an administrative search warrant by completing an Affidavit for Pesticide Control
Administrative Search Warrant [DC-386]. The affidavit must describe:
1. the place, things or persons to be inspected or tested; and
2. the purpose for which the inspection, testing, or collection of
samples for testing is to be made.
The affidavit also must contain facts that support a probable cause finding that either
1. reasonable legislative or administrative standards for conducting
such inspection, testing or collection of samples for testing are
satisfied with respect to the particular place, thing, or person; or
2. there is a condition, object, activity, or circumstance which
legally justifies such inspection, testing, or collection of samples
for testing.
If the affiant bases the request for the search warrant on legislative or administrative
standards for selecting places of business for inspection, the affidavit must contain factual
8/1/2006 Magistrate Manual (Revision 30) VII-43
allegations sufficient to justify an independent determination by the magistrate that the
inspection program is based on reasonable standards and that the standards are being applied
to a particular place of business in a neutral and fair manner.
The affidavit also must contain facts to support a probable cause finding that either
1. the Commissioner or the Commissioner’s agent sought consent to
inspect, test, or collect samples for testing and that owner,
operator, person in charge or tenant refused to grant permission for
the inspection, or
2. the circumstances reasonably justify the failure to seek such
consent in order to enforce effectively the pesticide control laws
and regulations of the Commonwealth.
The Commissioner or agent must execute the warrant in the presence of the owner, tenant,
operator or agent in charge of the premises unless the Commissioner petitions for
authorization to execute the warrant in the absence of the owner, tenant, operator, or agent.
If the magistrate finds from the facts that such authority is reasonably necessary to effect
the purposes of the law or regulation being enforced the magistrate must authorize execution
in the absence of the owner. The Commissioner or agent also must enter the premises
without force unless the magistrate grants authority for a forcible entry. The magistrate must
grant permission for a forcible entry if the facts presented in the affidavit are sufficient to:
1. create a reasonable suspicion of an immediate threat to the health
and safety of persons or to the environment; or
2. establish that reasonable attempts to serve a previous warrant have
been unsuccessful.
If the magistrate authorizes a forcible entry, the magistrate must issue the warrant jointly to
the Commissioner and to a law-enforcement officer who shall accompany the Commissioner
of agent during the execution of the warrant.
In addition to reviewing the affidavit, the magistrate may examine the affiant under oath to
verify the accuracy of any matter in the affidavit. The premises that are the subject of the
search must be located in the judicial district for which the magistrate is appointed. If the
magistrate finds that the affidavit meets all statutory and probable cause requirements, he or
she then prepares the administrative search warrant. The form that the magistrate uses in this
case is the Pesticide Control Administrative Search Warrant [DC-387]. The magistrate
8/1/2006 Magistrate Manual (Revision 30) VII-44
completes the warrant based on the information provided in the affidavit. Chapter VI contains
instructions on preparing this form.
The search warrant is valid for the time specified by the magistrate. This period may not
exceed fifteen days from date of issuance. Section 3.1-249.58 allows the judge or magistrate
who issued the initial warrant to extend or renew the warrant. Although no time period for
an extension or renewal is mentioned in the statute, the extension or renewal period should
not exceed an additional fifteen days. If the Commissioner does not execute the warrant
within the time frame specified by the magistrate, the warrant is void. After execution, the
Commissioner must return the warrant to the magistrate who issued it. The magistrate must
retain the executed or void warrant and the original affidavit in the administrative search
warrant file maintained by each magistrate's office. Both the affidavit and administrative
search warrant forms are master district court forms. The magistrate, therefore, must retain
the proofs of these forms for copying purposes.
A person may challenge the validity of the search warrant prior to its return to the magistrate
only if
1. he or she is charged with contempt and uses the invalidity of the
search warrant as a defense in that action; or
2. makes a substantial preliminary showing accompanied by an offer of proof that
a. a false statement, knowingly and intentionally, or with
reckless disregard for the truth, was included by the
affiant in his affidavit for the administrative search
warrant, and
b. the false statement was necessary to the finding of
probable cause.
A person may ask the circuit court to review the validity of the search warrant after its
execution and return to the magistrate either as a defense to any notice of violation issued by
the Commissioner or by declaratory judgment action. In this case, the statute does not allow
the circuit court to conduct a de novo determination of probable cause. The statute only
allows the court to determine whether there is substantial evidence in the record supporting
the decision to issue the warrant. The circuit court's review is confined to the face of the
warrant and affidavits and supporting materials presented to the issuing magistrate unless the
8/1/2006 Magistrate Manual (Revision 30) VII-45
owner or person in charge of the premises inspected makes by affidavit a substantial showing
accompanied by an offer of proof that:
1. a false statement, knowingly and intentionally, or with reckless
disregard for the truth, was made in support of the warrant, and
2. the false statement was necessary to the finding of probable
cause.
7. HEALTH AND SAFETY INSPECTIONS
Through the evolution of such cases as Katz v. United States, Frank v. Maryland, and Camara
v. Municipal Court, fourth amendment protections now apply to administrative searches and
inspections. Having placed administrative searches within the scope of the fourth
amendment, the Supreme Court in Camara held that, absent consent or exigent
circumstances, a search warrant is required before the administrative search can take place.
While Virginia has enacted statutory requirements for such searches or inspections as Fire and
Hazardous Materials, there are other situations such as Health and Safety Inspection requests
that may come before the magistrate. Absent statutory guidelines, these type of requests
would fall under the guidelines of Camara v. Municipal Court discussed above.
8. DAM INSPECTIONS
The agents and employees of the Soil and Water Conservation Board have the right to enter
private property at reasonable times and under reasonable circumstances to perform dam
inspections and tests or to take other actions necessary under Title 10.1 of the Code of
Virginia. The Board or its agents or employees must make a reasonable effort to obtain
consent of the landowner prior to making entry. If the landowner does not allow the agent
or employee to enter the property, §10.1-610 authorizes the agent or employee to seek an
inspection warrant from a magistrate in the judicial district in which the dam lies. Although
the statute says that the agent may “apply” for the warrant, the magistrate should require that
agent provide the information in written affidavit form. The magistrate must determine from
the facts contained in the affidavit that probable cause exists to believe that:
1. the property owner or the owner’s agent has denied the Soil and Water
Conservation Board permission to enter the property, and
2. the dam located on the property is unsafe.
8/1/2006 Magistrate Manual (Revision 30) VII-46
There currently is no district court form in existence for the dam inspection warrant. The
magistrate may photocopy the prototype form shown on the following page. The Soil and
Water Conservation Board should not use the Affidavit for Search Warrant form DC-339 to
8/1/2006 Magistrate Manual (Revision 30) VII-47
DAM INSPECTION WARRANT §10.1-610
TO THE SOIL AND WATER CONSERVATION BOARD OR ITS AGENT:
You are hereby authorized, in the name of the
Commonwealth, to enter the following-described property:
………………………………………………………………………………………………………………………………………………………
DESCRIPTION / LOCATION OF PLACE TO BE INSPECTED
……………………………………………………………………………………………………………………………………………………
for the purpose of performing inspections,, tests, or to
take all necessary actions to fulfill the responsibilities
of the Board under Article 2 of Chapter 6 of Title 10.1 of
the Code of Virginia regarding dam safety .

I, the undersigned, found probable cause to believe,
based on the statement contained in the attached
affidavit sworn to by …………………………………………………………, that
(1) the Soil and Water Conservation Board has been
refused admittance to the property upon which the dam
is located; and
(2) the dam situated on the above-described property
is unsafe.
_______________________ ____________________
DATE AND TIME OF ISSUANCE MAGISTRATE
DAM INSPECTION WARRANT
COMMONWEALTH OF VIRGINIA
In re / V.
EXECUTED ON:
__________________________
Date
__________________________
Signature
__________________________
Name and Title
**************************
RETURNED TO MAGISTRATE
ON:
__________________________
Date
__________________________
Signature
__________________________
Name and Title
8/1/2006 Magistrate Manual (Revision 30) VII-48
apply for the dam inspection warrant. Rather, the affiant should prepare an affidavit
containing facts to support the findings necessary for the magistrate’s probable cause
determination.
The magistrate needs to retain the original affidavit and attach a copy to the second copy of
the dam inspection warrant. As in other types of administrative warrants, the magistrate does
not file the affidavit with clerk of the circuit court. Upon execution of the dam inspection
warrant, the Board needs to return the executed warrant to the magistrate. If the Board does
not execute the warrant, the Board’s agent must return the warrant to the magistrate who
then marks it void for lack of execution. The magistrate retains the voided warrant in the
office’s administrative search warrant files. Each magistrate's office needs to maintain a file
for administrative search warrants and administrative search warrant affidavits.
9. BUILDING CODE VIOLATIONS
A local building official may request a magistrate to issue a building inspection warrant. The
statute requires sworn testimony from the local building official. The magistrate must require
the affiant to complete an AFFIDAVIT FOR BUILDING INSPECTION WARRANT [DC-390]. In
reviewing this affidavit, the magistrate must determine that probable cause exists to believe
that:
1. the official received a complaint of an existing violation of the Building Code;
2. such violation would constitute an immediate and imminent threat to the health or
safety of the owner or tenant of a residential dwelling unit or a nearby residential
dwelling unit;
3. the official made reasonable efforts to obtain consent from the owner or tenant,
and
4. the owner or tenant refused to allow the local building official or his agent access
to the dwelling that was the subject of the complaint.
Because an inspection involves an administrative search, the affidavit needs to include facts
to support that the person who made the complaint is reliable, and that the facts support a
8/1/2006 Magistrate Manual (Revision 30) VII-49
probable cause determination that the alleged violation constitutes an immediate and imminent
threat to health or safety.
If the magistrate determines that probable cause exists for the four findings, the magistrate
would issue a BUILDING INSPECTION WARRANT [DC-391] that authorizes the building official
or his agent to enter the dwelling in question for the purpose of determining whether violations
of the Building Code exist.
The magistrate needs to retain both the original affidavit and the executed building inspection
warrant. The magistrate also needs to attach a copy of the affidavit to the copy of the fire
inspection warrant that is left with the owner or tenant of the property. Unlike the criminal
search warrant affidavit, the magistrate does not file the affidavit for the building inspection
warrant with clerk of the circuit court. Each magistrate's office needs to maintain a file for
administrative search warrants and administrative search warrant affidavits. If the local
building official does not execute the warrant, he or she must return the warrant to the
magistrate who marks it void for lack of execution. The magistrate then retains the voided
warrant in the office’s administrative search warrant files.
10. ADMINISTRATIVE SEARCH OR INSPECTION WARRANTS ISSUED ONLY BY COURTS
A. TOXIC SUBSTANCES
Pursuant to §§19.2-393 and 19.2-394, only a circuit court judge has the authority to issue
an inspection warrant for the inspection, testing, or collection of samples for testing in
connection with the presence, manufacturing, or emitting of toxic substances. Section 19.2-
393 defines “toxic substances” as “any substance, including (I) any raw material, intermediate
product, catalyst, final product and by-product of any operation conducted in a commercial
establishment and (ii) any biological organism, that has the capacity, through its physical,
chemical, or biological properties, to pose a substantial risk to humans, aquatic organisms or
any other animal of illness, death or impairment of normal functions, either immediately or
over a period of time.”
B. COMPLIANCE WITH LAW, REGULATION, ORDER OF THE STATE BOARD OF HEALTH,
STATE HEALTH COMMISSIONER, OR STATE DEPARTMENT OF HEALTH
Pursuant to §32.1-25, only a judge of the circuit court has the authority to issue an inspection
warrant after the owner or custodian of property has denied the State Health Commissioner
or the Commissioner's designee entry on the property “to inspect, investigate, evaluate,
8/1/2006 Magistrate Manual (Revision 30) VII-50
conduct tests or take samples for testing as he reasonably deems necessary in order to
determine compliance with the provisions of any law administered by the Board, Commissioner
or Department, any regulations of the Board, any order of the Board or Commissioner or any
conditions in a permit, license or certificate issued by the Board or Commissioner.”
C. COMPLIANCE WITH LAW, REGULATION, ORDER OF THE VIRGINIA WASTE
MANAGEMENT BOARD, DIRECTOR OF THE DEPARTMENT OF WASTE
MANAGEMENT OR THE DEPARTMENT OF WASTE MANAGEMENT
Pursuant to §10.1-1456 only a judge of the circuit court has the authority to issue an
inspection warrant after the owner or custodian of property has denied the Director of the
Department of Waste Management or the Director's designee entry on the property ‘to
inspect, investigate, evaluate, conduct tests or take samples for testing as he reasonably
deems necessary in order to determine whether the provisions of any law administered by the
Board, Director or Department, any regulations of the Board, any order of the Board or Director
or any conditions in a permit, license or certificate issued by the Board or Director are being
complied with.”
D. WORKPLACES
Pursuant to §40.1-49.9, any judge having the authority to issue criminal warrants has the
authority to issue an administrative search warrant for the inspection of workplaces.
E. ENDANGERED OR THREATENED SPECIES OR PARTS THEREOF
The Virginia Endangered Plant and Insect Species Act authorizes the possession of endangered
or threatened plant or insect species or parts thereof only under very limited circumstances.
The Commissioner of the Department of Agriculture and Consumer Services or the
Commissioner's designee may enter on property to “make inspections or develop other
biological data for the proper management of any endangered or threatened species.” If an
owner or custodian denies entry, §3.1-1024 authorizes only a circuit court judge to issue an
administrative inspection warrant to allow the Commissioner to enter and inspect. The
magistrate should note that §3.1-1030 makes any violation of the provisions of the Act a
Class 1 misdemeanor. The question then becomes whether a magistrate is able to issue a
criminal search warrant when the underlying crime is a violation of the provisions of the Act.
Arguably, the magistrate does have the authority to issue the criminal search warrant for
criminal violations of the Act.
8/1/2006 Magistrate Manual (Revision 30) VII-51
Subsection B of §29.1-567 specifically authorizes any judicial officer, including a magistrate,
to issue a search warrant for goods, business records, merchandise, fish, or wildlife in
connection with a violation of Article 6 of Chapter 5 of Title 29.1 (§§29.1-563 through 29.1-
570). This Article concerns endangered or threatened fish or wildlife. On the other hand,
Chapter 39 of Title 3.1 (§§3.1-1020 through 3.1-1030) deals only with endangered or
threatened plants or insects.
F. HOTELS, RESTAURANTS, SUMMER CAMPS, CAMPGROUNDS
Pursuant to §35.1-5, the State Health Commissioner or Commissioner's designee may inspect
hotels, restaurants, summer camps, and campgrounds. Once the Commissioner has been
denied entry, the Commissioner may apply to the appropriate circuit court for an inspection
warrant to determine whether any provision of Title 35.1, any regulation of the Board, any
order of the State Board Health or Commissioner, or any condition in a license issued by the
Board or Commissioner pursuant to Title 35.1 is being violated.
G. UNLICENSED CHILD CARE OPERATIONS
Section 63.2-1718 grants the Commissioner of Social Services or the Commissioner's
designee the right to enter and inspect an unlicensed child care operation. If the owner or
person in charge of an unlicensed child care operation denies the Commissioner or
designee entry to the operation, the Commissioner or designee may seek an administrative
search warrant from any judge having the authority to issue criminal warrants pursuant to
§63.2-1718.