Civil RightsCriminal LawDue ProcessFourth Amendment

How do I get a copy of the search warrant, affidavit and return

So, the police have searched your home but didn’t give you a copy of the warrant, the affidavit upon which the search warrant was issued or even a copy of the return – how do you get a copy of the search warrant in Virginia?

 

The law surrounding search warrants includes the 4th Amendment to the United States Constitution, Article 1 – Bill of Rights, Section 10 of the Virginia Constitution, Virginia Criminal Procedure, Chapter 5 – Search Warrants

 

The affidavit, search warrant and the return should be filed with the circuit court clerk the sooner of (1) after the search has been conducted or (2) 15 days after the search warrant has issued. Section 19.2-54

 

Section 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 or the identity of the person to be arrested for whom a warrant or process for arrest has been issued 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 or is the person to be arrested for whom a warrant or process for arrest has been issued. The affidavit may be filed by electronically transmitted (i) facsimile process or (ii) electronic record as defined in Section 59.1-480. 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 or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act (Section 59.1-479 et seq.) for transmitting signed documents, 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, 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 after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier; 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. 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.

 

If the affidavit, search warrant or return are under seal, you may file a motion with the court to unseal the documents, and the Commonwealth will have the burden of proof to show the court why they should remain under seal.   You may wish to file the following motion:

 

 

VIRGINIA:

IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND

 

[YOUR NAME]

V                                                                                                             Case NO. ____________

COMMONWEALTH OF VIRGINIA

 

IN RE: ALLEGED SEARCH WARRANT FOR [ADDRESS]

 

MOTION

 

Comes now [YOUR NAME], pro se, and moves the court to unseal any alleged affidavit and alleged search warrant issued and return pursuant to the alleged search warrant pursuant to § 19.2-54 of the Code of Virginia.  In support thereof, movant states as follows:

 

  1. A search by Richmond police officers was conducted at [ADDRESS] on [DATE]
  2. Movant, has a leasehold or ownership interest in [ADDRESS] [explain, name on lease, living at the address, owning the property, etc]
  3. Movant is therefore aggrieved by such search and seizure being entitled to lawful possession of any property seized (unless such property constituted contraband, movant having no such knowledge of any contraband in the property.  Other non-leasehold individuals have visited the premises from time to time. *****BE CAREFUL, YOU DO NOT WANT TO WAIVE YOUR 5TH AMENDMENT RIGHT BY CLAIMING THAT THE CONTRABAND WAS YOURS!!!!****)
  4. Movant has repeatedly requested to see the search warrant and the affidavit and return, but has not received a copy of such items.
  5. Movant has been advised that the items are subject to an order sealing the affidavit, warrant and return.
  6. Pursuant to VA Code § 19.2-54, movant is authorized and empowered to move this court to unseal any such affidavit, warrant and return.
  7. The burden of proof with respect to continued sealing shall be upon the Commonwealth.  VA. Code § 19.2-54.

WHEREFORE, movant moves this court to unseal the affidavit, warrant and return.

 

Respectfully submitted:

 

[sign here]________________________________

 

[Your name], pro se

[your address and phone #],

CERTIFICATE OF SERVICE

 

I certify that I hand delivered a copy of the foregoing to the Commonwealth Attorney on this _________ day of ________, 20___.

 

[sign here]______________________________

 

—————————————————————————————————————————————

VIRGINIA:

IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND

 

[YOUR NAME]

V                                                                                                             Case NO. ____________

COMMONWEALTH OF VIRGINIA

 

IN RE: ALLEGED SEARCH WARRANT FOR [ADDRESS]

 

NOTICE OF HEARING FOR

MOTION TO UNSEAL

 

Please take notice that on ________ at _________, [your name], pro se, shall move the court to unseal the alleged affidavit, warrant and return pursuant to § 19.2-54 of the Code of Virginia regarding a search by Richmond police officers at [address] on [date].

 

Respectfully submitted:

 

[sign here]__________________________________

[Your name], pro se

[your address and phone #],

 

CERTIFICATE OF SERVICE

 

I certify that I hand delivered a copy of the foregoing to the Commonwealth Attorney on this _________ day of _____ 20___.

 

[sign]______________________________

 

 

CAUTION

NOTHING CONTAINED HEREIN SHALL BE DEEMED TO CREATE AN ATTORNEY CLIENT RELATIONSHIP.  NOTHING HEREIN SHALL BE DEEMED TO BE LEGAL ADVICE TO YOUR PARTICULAR CIRCUMSTANCES!  EVERY PERSON APPEARING OR FILING ANYTHING IN COURT MAY BE SUBJECT TO SANCTIONS UNDER VA CODE § 8.01-271.1

 

 

Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, PC
105 S 1st Street
Richmond, VA 23219
804-783-2000