CIRCUIT COURT CLERKS’ MANUAL - CRIMINAL MISCELLANEOUS MATTERS PAGE 7-1 Chapter 7 - Miscellaneous Matters Search Warrants The Code of Virginia provides for the issuance of search warrants upon a sworn complaint supported by an affidavit. A search warrant may be issued by any judge, magistrate, or other person having authority to issue criminal warrants if the complaint and affidavit show probable cause for the issuance of such search warrant. Va. Code § 19.2-52. Although clerks are authorized to issue search warrants, the clerk should not do so without having had thorough training in making probable cause determinations and in issuing search warrants. Magistrates issue almost all search warrants in Virginia. Every search warrant shall be directed to (i) the sheriff, sergeant, or any 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, Firearms and Explosives of the United States Treasury, the United States Naval Criminal Investigative Service, the United States Department of Homeland Security, any inspector, law-enforcement official or police personnel of the United States Postal Inspection 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 or that the person to be arrested for whom a warrant or process for arrest has been issued is located at the place to be searched. Search warrants authorized for the search of any place of abode shall be executed by initial entry of the abode only in the daytime hours between 8:00 a.m. and 5:00 p.m. unless (i) a judge or a magistrate, if a judge is not available, authorizes the execution of such search warrant at another time for good cause shown by particularized facts in an affidavit or (ii) prior to the issuance of the search warrant, law-enforcement officers lawfully entered and secured the place to be searched and remained at such place continuously. A law-enforcement officer shall make reasonable efforts to locate a judge before seeking authorization to execute the warrant after 5 p.m., unless circumstances require the issuance of the warrant after 5 p.m., in which case the law-enforcement officer may seek such authorization from a magistrate without first making reasonable efforts to locate a judge. Such reasonable efforts shall be documented in an affidavit and submitted to a magistrate when seeking such authorization. Va. Code § 19.2-56. Office of the Executive Secretary Department of Judicial Services Rev: 7/21 CIRCUIT COURT CLERKS’ MANUAL - CRIMINAL MISCELLANEOUS MATTERS PAGE 7-2 The clerk's role with respect to processing search warrants is generally to serve as a repository for documents related to search warrants. Specific duties are set out below: Step 1 Clerk maintains a file for receiving affidavits for search warrants . The affidavit upon which a search warrant may be issued is not placed in a case file. Note: If the search warrant is sought for a search between the hours of 5:01 p.m. and 7:59 a.m., the officer must first request permission of the court. If the court is unavailable the request may be made to the magistrate. DC- 3005, Affidavit and Authorization for Nighttime Search of a Place of Abode. Comments: An affidavit may be made by voice or videotape recording. Va. Code § 19.2-56. Such affidavits are open to inspection by the public after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier. Any affidavit, warrant, return, and any order sealing the affidavit, warrant, or return, may be temporarily sealed for a specific period of time. Va. Code § 19.2-54. Step 2 Clerk maintains an index for the affidavits that is kept separate from other indexes. Comments: The same index is used for executed search warrants that are filed with the affidavits on which they are based. Va. Code § 19.2-54. Step 3 The affidavit is filed by a judicial officer authorized to issue search warrants. It may be delivered in person or mailed by certified mail, return receipt requested or delivered by electronically transmitted facsimile process, or by use of filing and security procedures for transmitting signed documents, to the clerk’s office of the county or city wherein the search is made. Comments: Affidavits may be filed by a judicial officer other than the judicial officer who issued the search warrant. Note: The copy of the affidavit is to be filed by the judicial officer as well. Step 4 The officer, or his designee or agent, may file the warrant, inventory, and accompanying affidavit by delivering them in person, or by mailing them certified mail, return receipt requested, or delivering them by electronically transmitted facsimile process, to the city/county where the search was conducted. Comments: The officer who seizes property pursuant to a warrant must Office of the Executive Secretary Department of Judicial Services Rev: 7/21 CIRCUIT COURT CLERKS’ MANUAL - CRIMINAL MISCELLANEOUS MATTERS PAGE 7-3 make an inventory of the items seized under oath. An inventory of any seized property shall be produced before the circuit court of the county or city where the search was conducted. Va. Code § 19.2-57. Step 5 The clerk stores property seized pursuant to warrant only if directed by the judge. Va. Code § 19.2-58. Comments: See “Pre-Trial - Receipt, Maintenance And Storage Of Evidence” regarding the storage of property brought into the clerk's office. Note: See “Post Sentencing” chapter (Va. Code § 17.1-213) regarding destruction of unexecuted search warrants and affidavits for unexecuted search warrants. Note: Virginia Code § 19.2-70.3 allows an investigative or law-enforcement officer to obtain real-time location data without a warrant in certain circumstances. No later than three business days after seeking disclosure of real-time location data pursuant to this subsection, the investigative or law-enforcement officer seeking the information shall file with the appropriate court a written statement setting forth the facts giving rise to the emergency and the facts as to why the person whose real-time location data was sought is believed to be important in addressing the emergency. This written statement of facts may or may not be followed up by a search warrant. Consideration should be given as to withholding the statement for the 15 days as required for an affidavit, or until a search warrant is received. Search Warrants for a Tracking Device A law-enforcement officer may apply for a search warrant from a judicial officer to permit the use of a tracking device. Each application for a search warrant authorizing the use of a tracking device shall be made in writing, upon oath or affirmation, to a judicial officer for the circuit in which the tracking device is to be installed, or where there is probable cause to believe the offense for which the tracking device is sought has been committed, is being committed, or will be committed. The affidavit shall be certified by the judicial officer who issues the search warrant and shall be delivered to and preserved as a record by the clerk of the circuit court of the county or city where there is probable cause to believe the offense for which the tracking device has been sought has been committed, is being committed, or will be committed. The affidavit shall be delivered by the judicial officer in person; mailed by certified mail, return receipt requested; or delivered by electronically transmitted facsimile process or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act (§ 59.1-479 et seq.) for transmitting signed documents. By operation of law, the affidavit, search warrant, return, and any other related materials or Office of the Executive Secretary Department of Judicial Services Rev: 7/21 CIRCUIT COURT CLERKS’ MANUAL - CRIMINAL MISCELLANEOUS MATTERS PAGE 7-4 pleadings shall be sealed. Upon motion of the Commonwealth or the owner or possessor of the vehicle, container, item, or object that was tracked, the circuit court may unseal such documents if it appears that the unsealing is consistent with the ends of justice or is necessary to reasonably inform such person of the nature of the evidence to be presented against him or to adequately prepare for his defense. The circuit court may, for good cause shown, grant one or more extensions, not to exceed 30 days each. Within 10 days after the use of the tracking device has ended, the executed search warrant shall be returned to the circuit court of the county or city where there is probable cause to believe the offense for which the tracking device has been sought has been committed, is being committed, or will be committed, as designated in the search warrant, where it shall be preserved as a record by the clerk of the circuit court.