Search Warrants Flashcards
(98 cards)
1
Q
What is the general geographic scope of a Virginia magistrate’s authority to issue a search warrant?
A
Statewide authority.
2
Q
Is an affidavit required for a search warrant in Virginia?
A
Yes issuing a warrant without one is a crime.
3
Q
What is the “four corners rule” regarding affidavits in Virginia?
A
The magistrate may ONLY consider the information contained within the written affidavit (and any attachments) when determining PC.
4
Q
Can an officer add information to the affidavit after presenting it?
A
Yes, the magistrate can allow the officer to amend the affidavit during the hearing to include information discussed, which must then be written into the affidavit.
5
Q
How must the officer affirm the truthfulness of the affidavit?
A
By oath or affirmation, administered either in person or via two-way video connection (NOT over the telephone).
6
Q
Can attachments be considered part of the affidavit?
A
Yes, attachments are okay and considered within the “four corners.”
7
Q
Who typically requests a search warrant?
A
Law Enforcement Officers (LEOs).
8
Q
Can a private citizen request a search warrant in Virginia?
A
Yes, although this is extremely rare.
9
Q
What is the standard for Probable Cause for a search warrant in Virginia?
A
A “fair probability” that the items sought are evidence of a crime and are located in the place to be searched.
10
Q
What must the PC demonstrate about the items sought?
A
That the items 1) exist, 2) will likely be present at the time of the search, and 3) constitute evidence of the specified crime.
11
Q
What does the “totality of the circumstances” mean for PC determination?
A
All facts presented in the affidavit are considered together to determine if PC exists; individual facts don’t need to establish PC on their own.
12
Q
Must PC be particularized?
A
Yes, the belief of guilt (or presence of evidence) must be particularized to the specific person or place to be searched.
13
Q
Does PC require enough evidence for a prima facie case?
A
No, only a fair probability or substantial chance of criminal activity is needed.
14
Q
Should a magistrate rely solely on an officer’s conclusions?
A
No, the affidavit must contain underlying facts, not just the officer’s assessment or conclusory statements.
15
Q
What are the two key aspects of assessing the reliability of information in an affidavit (based on Aguilar v. Texas)?
A
1) The source’s basis of knowledge (how they know it), and 2) The veracity or reliability of the source or information.
16
Q
When is information from an LEO generally presumed reliable?
A
When it is based on their personal knowledge (firsthand observation using their senses).
17
Q
Are disinterested eyewitnesses or victims generally considered reliable sources?
A
Yes, usually presumed reliable, but consider potential bias if there’s an ongoing dispute.
18
Q
What factors can indicate an informant’s reliability?
A
Previously provided accurate information, made a controlled buy, statement is against their penal interest, LEO corroborated parts of the info, the informant is a victim, informant appears before the magistrate, informant is willing to testify (carries some weight).
19
Q
Is asking for the informant’s name necessary or appropriate?
A
No, do not ask for the informant’s name.
20
Q
Can strong overall reliability overcome a weak showing for the basis of knowledge?
A
Yes, the “basis of knowledge can be overcome by overall reliability of the tip.”
21
Q
What is crucial for establishing PC based on an anonymous tip?
A
The tip should contain predictive information about future actions that police can corroborate. Simply describing someone’s current appearance and location is generally insufficient.
22
Q
What is “staleness” in the context of search warrants?
A
Information that is too old to support a current belief that the evidence is still located in the place to be searched.
23
Q
Staleness
Is information time-sensitive? Give examples.
A
Yes. Drugs sold within 72 hours = likely NOT stale. Drugs present 72 days ago = likely stale. Body buried 15 years ago = likely NOT stale. Child pornography collections = generally NOT stale.
24
Q
Why might LEO use “within the last 72 hours” in an affidavit?
A
It’s commonly used to avoid staleness while potentially protecting the identity of a confidential informant (CI).
25
What must a search warrant particularly describe?
1) The place to be searched, and 2) The person(s) or thing(s) to be seized. It must also recite the offense related to the search.
26
What is the standard for describing the place to be searched?
Sufficient information for an officer unfamiliar with the case to identify the location without confusion or excessive effort. An address is usually sufficient; specify sub-units (e.g., Apt B). Occupant's name can help if subunits aren't clear.
27
How specific must the description of items be (the "shopping list")?
Reasonably specific under the circumstances. It should guide the officers and limit the scope of the search. Can include specific items, reference to the crime, timeframes (for records), or a combination.
28
Can a warrant authorize searching for "other evidence of the crime of [specific crime]"?
Yes, if it follows a list of more specific items. This prevents general rummaging
## Footnote
"other items" would not be sufficent.
29
Is "other evidence of any crime" permissible language?
No, this is too broad and not allowed in Virginia.
## Footnote
"other items" would not be sufficent.
30
What should a magistrate do if PC exists for only some of the items requested?
Issue the warrant authorizing the search only for the items supported by PC. Do not include the unsupported items in the warrant itself (though they remain in the affidavit).
31
Can a warrant be issued for items related to civil matters or traffic violations?
No, except for reckless driving (which is criminal). It must be for a criminal offense (state, federal, etc.).
32
What inference shall a magistrate make regarding known drug dealers?
That drug dealers are likely to possess firearms.
## Footnote
NOT drug users
33
Is it generally reasonable to infer that evidence of drug dealing will be found at a known dealer's home?
Yes. It's reasonable to infer drugs, records, or tools of the trade (scales, baggies, phones, guns, lists) may be at the residence.
34
Does a single drug transaction usually justify searching the suspect's home?
No, usually need more to establish PC for the home, such as evidence of ongoing dealing.
35
Can finding drugs in a person's car automatically establish PC to search their house?
Possibly, especially if they are a known dealer. If it appears isolated or they are just a user, it's less certain. Requires a factual nexus.
36
What other items might be inferred to be at a person's home based on common experience?
Stolen property, documents showing ownership/occupancy, etc., even without a direct link shown in the affidavit for those specific items if tied to the crime.
37
Is an officer's statement about their training and experience alone sufficient for PC?
No, there must still be a factual nexus connecting the place, the items, and the suspected criminal activity.
38
List the categories of items Virginia statute allows warrants to search for
1) Weapons or objects used in committing a crime; 2) Contraband (illegal items); 3) Stolen property or the fruits of any crime; 4) *Any evidence* of the commission of a crime (includes objects, things, persons, documents, papers, records, bodily fluids, etc.)
39
Can a Virginia warrant authorize search for things merely "related to" a crime or things that might exclude a suspect?
No. Virginia requires items to be positive evidence of the commission of the crime.
40
Can a warrant authorize the search for a person who is subject to an arrest warrant or capias
Yes
41
Where can officers search under a warrant for a residence?
The entire residence, its curtilage, and vehicles on the property belonging to or controlled by the occupants (generally not guests' vehicles without separate PC or inclusion in warrant).
42
If officers find some evidence in one part of the house, does that limit their search of the rest of the house?
No, finding some evidence doesn't negate the fair probability that more evidence could be elsewhere within the scope authorized by the warrant.
43
Can a magistrate help LEO draft the affidavit?
No, the magistrate must remain neutral and detached. They can point out deficiencies and allow amendments based on officer testimony.
44
What should a magistrate say if the affidavit is lacking PC?
Something like: "I've reviewed the affidavit and I'm not seeing [specific element needed]. If you have information establishing that, it needs to be included in the affidavit for me to consider it." Always give the officer an opportunity to amend.
45
What is the "place not the case" principle?
A search warrant can be issued for a location even if the owner is innocent, as long as there is PC that evidence of a crime is located at that place.
46
What is an Anticipatory Search Warrant?
A warrant based on PC that a future "triggering condition" (e.g., controlled delivery) will occur, and *after* that condition occurs, evidence of a crime will be at the location.
47
What PC is required for an Anticipatory Search Warrant?
PC that the triggering condition will happen, AND PC that evidence will be present after the condition occurs.
48
When can a warrant authorize the search of "All Persons Present"?
Only when there is PC specific to every person likely to be present (e.g., inside a private drug house during a transaction). Cannot be based solely on the item being small/easily hidden. Unlikely for public places.
49
Can a magistrate issue a search warrant for a blood draw in a DUI case upon refusal?
Yes. These requests should be given priority handling.
50
Are there special rules for search warrants involving juveniles?
No, the standard PC rules apply.
51
Can a warrant be issued to search for a wanted person?
Yes, if there is PC to believe the person (subject to an unexecuted arrest warrant/capias) is at the location to be searched.
52
Can a warrant be issued just for information to help find a wanted person (e.g., searching mom's phone)?
No, unless that information itself is evidence of a separate crime, or it's a request for the wanted person's real-time location data.
53
When can a warrant authorize taking a DNA sample?
When there is PC the suspect committed a crime and likely left biological material at the scene, making comparison possible. (VA doesn't currently require proof of a 'testable sample' from the scene).
54
Does finding a dead body automatically provide PC for a search warrant?
No. There are no "death investigation warrants" in VA. There must be PC that a crime occurred related to the death (e.g., signs of foul play).
55
What types of warrants generally *cannot* be issued by a magistrate?
Warrants for evidence held by an attorney regarding a client's wrongdoing (usually requires Circuit Court); warrants for menstrual health data.
56
Are "no-knock" warrants allowed in Virginia?
No. They are statutorily prohibited. The warrant cannot authorize this.
57
What verbs should the warrant command use?
Primarily "search" and "seize." Avoid commanding *how* to execute (e.g., compel passcodes, specific bodily intrusions).
58
What language can be added to limit magistrate liability if the affidavit details concerning execution methods?
"This search warrant neither authorizes nor requires any specific manner of execution."
59
Can a warrant compel the creation of evidence (e.g., handwriting sample)?
Generally no. Exceptions: fingerprinting, DNA samples (can specify buccal swab).
60
When do restrictions on nighttime searches apply?
Only for searches of a "place of abode."
61
What are the default "daytime" hours for executing a warrant at a place of abode?
8:00 AM to 5:00 PM.
62
What is required to authorize a nighttime search (outside 8 AM - 5 PM) of a place of abode?
"Good cause" shown by particularized facts in the affidavit indicating why a daytime search would be less successful or more dangerous.
63
What is generally NOT considered "good cause" for a nighttime search?
Officer convenience, ideal staffing, seriousness of the crime alone, or the fact that the premises are already secured (unless other good cause exists).
## Footnote
Less dangerous? Possibly, if can explain why
64
If LEO requests nighttime authorization before 5 PM, what must they attest to?
That reasonable efforts were made to find a judge, but one was unavailable. (Magistrate doesn't evaluate the efforts).
65
How long do officers have to execute a search warrant?
15 days.
66
What happens if a warrant isn't executed within 15 days?
It becomes void. Officer should note "void for lack of timely service" and file it.
67
How should the warrant's caption (V / In Re) identify the search subject?
By the object or place being searched (e.g., "In Re 123 Main St," "In Re Cell phone serial #...").
68
To whom is the warrant directed?
An authorized LEO of the jurisdiction where the search will occur (can be joint w/ State Police/feds).
69
Who gets the original signed warrant?
The executing law enforcement agency.
70
What must be attached to the warrant given to LEO?
A *copy* of the affidavit (unless sealed by court order).
71
Where must the original affidavit and a copy of the warrant be filed?
With the Clerk of the Circuit Court for the jurisdiction where the search was made. (If outside VA, file where magistrate sits).
72
When must these documents be filed with the Circuit Court Clerk?
Within 7 days of issuance.
73
How can the filing be done?
Magistrate delivers in person, certified mail (return receipt requested), or secure electronic transmission (eFax). Another magistrate can also deliver.
74
What if filing is late?
Must still be filed, but the delay could potentially jeopardize the legality of the search after 30 days if challenged.
75
What happens with the affidavit if a court orders it sealed?
Do not attach a copy to the warrant given to LEO. File the *original* affidavit under seal with the circuit court.
76
Give examples where an "All Persons Present" search warrant might be appropriate vs. inappropriate in Virginia.
Often appropriate in private settings with a high likelihood of universal involvement in the crime (e.g., an active drug house where sales are occurring). Less likely appropriate in public places (e.g., bars, restaurants) where numerous innocent individuals are expected to be present.
76
77
Can an "All Persons Present" warrant be justified solely because the item sought is small and easily concealed on a person?
No. The justification must be PC that all persons present are likely involved in the criminal activity, not just the practical difficulty of finding the item.
78
Officers find drugs inside a car occupied by three people early in the morning. Is there likely PC to search all three individuals or the car?
Yes, the circumstances (time, multiple occupants, presence of drugs) strongly suggest they are likely working together, which can establish PC related to all occupants and the vehicle.
79
Affidavit details: suspect nervous, prior conviction for smuggling cigarettes, driving expired NY rental car, has black garbage bags with uniform boxes (known smuggling method), and officer cites special training. Does this likely establish PC for smuggling?
Yes, the totality of the circumstances (combining all these specific facts) likely establishes PC, even if no single factor would suffice alone.
80
Anonymous letter details drug dealers' names, specific travel plans (one flies, one drives), and the date of their next drug pickup. Police corroborate the described travel movements. Does this tip likely establish PC?
Yes. The tip's ability to predict future actions that are then corroborated by police provides sufficient indicia of reliability to support PC.
81
Anonymous tip: "Young Black male at bus stop X wearing a plaid shirt has a gun." Police see a Black male in a plaid shirt at bus stop X. Is this tip, by itself, enough for PC or even RAS?
No. It lacks predictive elements and merely describes current appearance/location. This information is easily obtainable by anyone and doesn't demonstrate inside knowledge, making it insufficient for PC and likely insufficient for Reasonable Articulable Suspicion (RAS) based *solely* on this type of anonymous tip.
82
"Three Black males in a white Honda were disorderly and had a gun." Is this sufficient for PC?
No. Lacks predictive elements or sufficient detail to establish the tipster's reliability or basis of knowledge for PC purposes.
83
Warrant seeks specific listed jewelry (gold necklaces, class ring, etc.) from a burglary, concluding with "...together with other property stolen... [and] other evidence of the crime of burglary and larceny." Is this concluding language acceptable in Virginia?
Yes. Language like "other evidence of the crime of [specific crime]" is permissible in Virginia if it follows a listing of specific items. It limits the search scope reasonably based on available information.
84
Warrant seeks "any material associated with homicide..." on a computer the suspect asked to be wiped. Is "any material" proper language in Virginia?
No, "any material" is likely too broad. Virginia requires searching for "evidence of the crime of..." The language must be tailored to seek evidence, not just anything related.
85
If PC exists that someone traffics drugs from their owned store, is it reasonable to infer drugs or records will also be at their home?
Yes. It is generally a reasonable inference that evidence, proceeds, or tools of the drug trade may be kept at the dealer's residence.
86
PC exists that a person sold drugs from their vehicle once. Does this automatically create PC to search their home?
Not automatically. The notes indicate a "single drug transaction by itself does not raise inference" strongly enough for home PC on its own. More evidence suggesting ongoing activity or dealer status is usually needed, although the totality might still reach PC depending on all facts.
87
Officers executing a warrant for drugs find a marijuana cigarette in the kitchen trash. Can they lawfully continue searching the rest of the house?
Yes. Finding some evidence in one area doesn't exhaust the PC or prevent searching other areas within the scope authorized by the warrant where additional evidence might reasonably be found.
88
Can a magistrate authorize a warrant commanding LEOs to force a suspect's penis to become erect for comparison to a photo?
No. This dictates the *manner* of execution in an unreasonable and intrusive way. Warrants command search and seizure, not specific, invasive procedures.
89
Can a warrant command how a bullet (evidence) should be surgically removed from a suspect?
No. While a warrant might authorize seizure of the bullet based on PC, it cannot dictate a specific medical procedure. The method of seizure must be reasonable.
90
An officer steps on the stomach of a suspect who swallowed drugs to force regurgitation. Is this likely a lawful execution method?
No. Such extreme bodily intrusion likely "shocks the conscience" and constitutes an unreasonable search/seizure method under the 4th Amendment.
## Footnote
"not our problem" though
91
Can a warrant authorize the "seizure" of a tattoo? How?
Yes, evidence like a tattoo can be "seized" by documenting it, typically through photography. The warrant authorizes seizure but should not command the specific method (like photography).
92
LEO seeks nighttime search for guns at a location on a crowded street, arguing daytime execution poses a public safety risk. Is this potentially good cause?
Yes. If specific facts show execution during the day would be demonstrably more dangerous to the public than at night, this could constitute good cause for a nighttime search warrant.
93
An infant is found deceased with unusual marks, or a body is found with stab wounds. Does this provide PC for a warrant related to the death?
Yes. While the death itself isn't PC, circumstances suggesting foul play (suspicious marks, wounds) can establish PC that a crime occurred, justifying a warrant related to the death investigation.
94
If LEO brings an affidavit previously approved by a judge, must the magistrate issue the warrant?
No. The magistrate must conduct their own independent PC review based on the affidavit's four corners and can disagree with the judge's prior assessment.
95
Can a daytime warrant be changed to authorize nighttime execution later?
Yes. If circumstances change after issuance, providing new good cause for a nighttime search (e.g., imminent evidence destruction), a magistrate can modify the warrant using a specific process/form.
97
Does RTLD or GPS require separate form and affidavit?
RTLD
98
Is authority for GPS tracking warrants statewide?
No. Regional.
