HB1909: Search warrants; allows court to temporarily seal.
Be it enacted by the General Assembly of Virginia:
1. That § 19.2-54 of the Code of Virginia is 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, mailed by certified mail, return receipt
requested, or delivered by electronically transmitted facsimile process by such
officer 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 clerks be preserved as a
record and shall at all times be subject to inspection by the public; however,
such affidavit, any warrant issued pursuant thereto, any return made thereon
[ , and any order sealing the affidavit, warrant or return ] may be
temporarily sealed [ for a specific period of time ] 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, warrant, and return [ and the .
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 30 days. If the affidavit is filed prior to the expiration of the 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.
Be it enacted by the General Assembly of Virginia:
1. That § 19.2-54 of the Code of Virginia is 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, mailed by certified mail, return receipt requested, or delivered by electronically transmitted facsimile process by such officer 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 clerks be preserved as a record and shall at all times be subject to inspection by the public; however, such affidavit, any warrant issued pursuant thereto, and any return made thereon 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, warrant, and return 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 30 days. If the affidavit is filed prior to the expiration of the 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.