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2008 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 19.2-54 and 19.2-57 of the Code of Virginia are amended and reenacted as follows:
§ 19.2-54. Affidavit preliminary to issuance of search warrant; general search warrant prohibited; effect of failure to file affidavit.
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 in person or, mailed by certified mail,
return receipt requested, or delivered by electronically transmitted
facsimile process by such officer or other officer authorized to certify
such warrants or his designee or agent to the clerk of the circuit
court of the county or city wherein the search is made, with a copy of the
affidavit also being delivered to the clerk of the circuit court of the county
or city where the warrant is issued, if in a different county or city,
within seven days after the issuance of such warrant and shall by such clerk
clerks 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 30 days.
If the affidavit is filed prior to the expiration of the thirty 30-day
period, nevertheless, evidence obtained in any such search shall not be
admissible until a reasonable time after the filing of the required affidavit.
§ 19.2-57. Execution and return of warrant; list of property seized.
The warrant shall be executed by the search of the place
described in the warrant and, if property described in the warrant be is
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 circuit court designated
in the warrant of the county or city where the search was conducted.
The officer executing the warrant shall endorse the date of execution thereon
and the officer or his designee 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. 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.