Chapter 1. General Provisions.
Sec.
§ 19.2-1. Repealing clause.
All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, are, except as herein otherwise provided, repealed to the extent of such inconsistency.
(1975, c. 495.)
Editor's note. - At its special session of 1971 the General Assembly directed the Code Commission to make a thorough study of the criminal laws of the State and make recommendations for the review and recodification of all statutes of the State relating to crime and criminal procedure. In December of 1974 the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 19.2, which was published as House Document 20 of the 1975 session. This report contains revisor's notes and other explanatory matter, which, while valuable, are too lengthy for inclusion here. The Commission's draft of the revision of Title 19.2, as amended by the General Assembly, became Chapter 495 of the Acts of 1975. Effective October 1, 1975, it repeals Title 19.1 of the Code and enacts in lieu thereof a new Title 19.2. In addition to its revision by Chapter 495, former Title 19.1 was also amended by certain other acts passed at the 1975 session. As required by former statute (see § 30-152), the Code Commission has incorporated these amendments into new Title 19.2.
The cases prior to 1975 cited in the notes under the various sections of this title were decided under corresponding provisions of former Title 19.1.
Law review. - For survey of the Virginia law on criminal law for the year 1961-1962, see 48 Va. L. Rev. 1342 (1962); for the year 1963-1964, see 50 Va. L. Rev. 1287 (1964). For survey of Virginia law on criminal law and procedure for the year 1967-1968, see 54 Va. L. Rev. 1579 (1968); for the year 1968-1969, see 55 Va. L. Rev. 1581 (1969). For survey of Virginia law on evidence for the year 1967-1968, see 54 Va. L. Rev. 1611 (1968).
For article, "Criminal Law and Procedure," see 26 U. Rich. L. Rev. 701 (1992).
Research References. - Criminal Constitutional Law (Matthew Bender). Rudstein, Erlinder, and Thomas.
Criminal Defense Techniques (Matthew Bender). Cipes, Bernstein, and Hall.
Criminal Law Deskbook (Matthew Bender). McCloskey and Schoenberg,
United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender). Erickson and George.
§ 19.2-2. Effect of repeal of Title 19.1 and enactment of this title.
The repeal of Title 19.1 effective as of October 1, 1975, shall not affect any act or offense done or committed, or any penalty or forfeiture incurred, or any right established, accrued, or accruing on or before such date, or any prosecution, suit or action pending on that day. Except as herein otherwise provided, neither the repeal of Title 19.1 nor the enactment of this title shall apply to offenses committed prior to October 1, 1975, and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to October 1, 1975, if any of the essential elements of the offense occurred prior thereto.
(1975, c. 495.)
§ 19.2-3. Certain notices, recognizances and processes validated.
Any notice given, recognizance taken, or process or writ issued before October 1, 1975, shall be valid although given, taken or to be returned to a day after such date, in like manner as if this title had been effective before the same was given, taken or issued.
(1975, c. 495.)
§ 19.2-3.1. Personal appearance by two-way electronic video and audio communication; standards.
- Where an appearance is required or permitted before a magistrate, intake officer or, prior to trial, before a judge, the appearance may be by (i) personal appearance before the magistrate, intake officer, or judge or (ii) use of two-way electronic video and audio communication. With the consent of the court and all parties, an appearance in a court may be made by two-way electronic video and audio communication for the purpose of (a) entry of a plea of guilty or nolo contendere and the related sentencing of the defendant charged with a misdemeanor or felony, (b) entry of a nolle prosequi or dismissal, or (c) a revocation proceeding pursuant to § 19.2-306 . If two-way electronic video and audio communication is used, a magistrate, intake officer, or judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person. If two-way electronic video and audio communication is available for use by a district court for the conduct of a hearing to determine bail or to determine representation by counsel, the court shall use such communication in any such proceeding that would otherwise require the transportation of a person from outside the jurisdiction of the court in order to appear in person before the court. Any documents transmitted between the magistrate, intake officer, or judge and the person appearing before the magistrate, intake officer, or judge may be transmitted by electronically transmitted facsimile process or other electronic method. The facsimile or other electronically generated document may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures.
-
Any two-way electronic video and audio communication system used for an appearance shall meet the following standards:
- The persons communicating must simultaneously see and speak to one another;
- The signal transmission must be live, real time;
- The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and
- Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.
-
Nothing in this section shall be construed as requiring a locality to purchase a two-way electronic video and audio communication system. Any decision to purchase such a system is at the discretion of the locality.
(1991, c. 41; 1996, cc. 755, 914; 2006, c. 285; 2009, cc. 94, 623; 2010, c. 800; 2017, c. 669; 2021, Sp. Sess. I, c. 86.)
Cross references. - As to use of telephonic communication systems or electronic video and audio communication systems to conduct hearings, see §§ 16.1-93.1, 16.1-276.3, 17.1-513.2 .
As to the use of two-way electronic video and audio communication system used for an appearance by juvenile before an intake officer, see § 16.1-255.
Editor's note. - Acts 1996, cc. 755 and 914, cls. 7, provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."
The 2006 amendments. - The 2006 amendment by c. 285 substituted "transmitted between the magistrate, intake officer, or judge and the person appearing before the magistrate, intake officer, or judge" for "filed" in the second sentence of subsection A.
The 2009 amendments. - The 2009 amendments by cc. 94 and 623 are identical, and in subsection A, divided the former second sentence into the second and fourth sentences by deleting "and any" at the end of the second sentence and adding "Any" at the beginning of the fourth sentence, and inserted the third sentence.
The 2010 amendments. - The 2010 amendment by c. 800 inserted "or other electronic method" and "or other electronically generated document" in subsection A.
The 2017 amendments. - The 2017 amendment by c. 669 added subsection C.
The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 86 effective July 1, 2021, in subsection A, inserted the second sentence and created the second paragraph from the remainder of the subsection.
Michie's Jurisprudence. - For related discussion, see 2A M.J. Appearances, § 11.
CASE NOTES
Annual assessment hearing for sexually violent predators. - Conducting an annual assessment hearing under § 37.2-910 of the Virginia Sexually Violent Predator Act, § 37.2-900 et seq., by video conference did not violate respondent's rights to counsel and to due process; as he was able to participate in the hearing and confer with his counsel, he was not prejudiced by the trial court's denial of his request to attend the hearing in person. Shellman v. Commonwealth, 284 Va. 711 , 733 S.E.2d 242, 2012 Va. LEXIS 197 (2012).
CIRCUIT COURT OPINIONS
Statutory and constitutional safeguards met. - Petitioner's objection to the conduct of a hearing, wherein he appeared by closed circuit audio-video link, was overruled as the statutory and constitutional safeguards were amply met, if not exceeded, by the manner in which the proceeding was conducted; the important public policy of protecting the safety of counsel and others in the courtroom, as well as petitioner himself, justified having him appear remotely, and petitioner's counsel were in the courtroom to represent his interests. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).
§ 19.2-4. References to former sections, articles or chapters of Titles 18.1 and 19.1.
Whenever in this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Titles 18.1 and 19.1, as such titles existed prior to October 1, 1975, are transferred in the same or in modified form to a new section, article or chapter of this title or of Title 18.2, and whenever any such former section, article or chapter is given a new number in this title or in Title 18.2, all references to any such former section, article or chapter of Title 19.1 or of Title 18.1 appearing elsewhere in this Code than in this title or in Title 18.2, shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.
(1975, c. 495.)
§ 19.2-5. Meaning of certain terms.
As used in this title, unless otherwise clearly indicated by the context in which it appears:
"Court" means any court vested with appropriate jurisdiction under the Constitution and laws of the Commonwealth.
"Court not of record" and "district court" shall have the respective meanings assigned to them in Chapter 4.1 (§ 16.1-69.1 et seq.) of Title 16.1.
"Judge" means any judge, associate judge or substitute judge of any court or any magistrate.
(Code 1950, § 19.1-5; 1960, c. 366; 1975, c. 495; 2005, c. 839; 2008, cc. 551, 691.)
The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, rewrote this section.
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are nearly identical, and substituted "judge of any court or any magistrate" for "judge, or magistrate, of any court" in the definition of "Judge."
§ 19.2-6. Appointive power of circuit courts.
Unless otherwise specifically provided, whenever an appointive power is given to the judge of a circuit court, that power shall be exercised by a majority of the judges of the circuit. In case of a tie, such fact shall be communicated to the Chief Justice of the Supreme Court, who shall appoint a circuit judge from another circuit who shall act as a tie breaker. Where the power of appointment is to be exercised by a majority of the judges of the Second Judicial Circuit and such appointment is to a local post, board or commission in Accomack or Northampton County, the resident judge or judges of the County of Accomack or Northampton shall exercise such appointment power as if he or they comprise the majority of the judges of the Circuit.
(1975, c. 495; 1977, c. 288; 1994, c. 407.)
§ 19.2-7. Rewards for arrest of persons convicted of or charged with offenses; rewards for conviction of unknown offenders.
The Governor may offer a reward for apprehending and securing any person convicted of an offense or charged therewith, who shall have escaped from lawful custody or confinement, or for apprehending and securing any person charged with an offense, who, there is reason to fear, cannot be arrested in the common course of proceeding. The Governor may also offer a reward for the detection and conviction of the person guilty of an offense when such offense has been committed but the person guilty thereof is unknown.
Any sheriff, deputy sheriff, sergeant, deputy sergeant or any other officer may claim and receive any reward which may be offered for the arrest and detention of any offender against the criminal laws of this or any other state or nation.
(Code 1950, §§ 19.1-6, 19.1-6.1; 1960, c. 366; 1962, c. 513; 1964, c. 171; 1975, c. 495.)
Cross references. - As to right of police officer to receive rewards, see § 15.2-1710 .
As to authority of localities to offer rewards, see § 15.2-1713 .
As to right of officers enforcing the motor vehicle laws to receive rewards, see § 46.2-218 .
As to right of State Police officers to receive rewards, see § 52-10 .
Law review. - For comment, "Effect of Public Policy upon Reward Offers," see 20 Wash. & Lee L. Rev. 395 (1963).
Michie's Jurisprudence. - For related discussion, see 3A M.J. Bounties or Rewards, § 2; 13B M.J. Municipal Corporations, § 80; 15 M.J. Public Officers, § 45; 16 M.J. Sheriffs, § 7.
CASE NOTES
This section illustrates the legislative policy on the subject of rewards to public officers. Buek v. Nance, 112 Va. 28 , 70 S.E. 515 (1911)wherein this section was held not applicable.
§ 19.2-8. Limitation of prosecutions.
A prosecution for a misdemeanor, or any pecuniary fine, forfeiture, penalty or amercement, shall be commenced within one year next after there was cause therefor, except that a prosecution for petit larceny may be commenced within five years, and for an attempt to produce abortion, within two years after commission of the offense.
A prosecution for any misdemeanor violation of § 54.1-3904 shall be commenced within two years of the discovery of the offense.
A prosecution for violation of laws governing the placement of children for adoption without a license pursuant to § 63.2-1701 shall be commenced within one year from the date of the filing of the petition for adoption.
A prosecution for making a false statement or representation of a material fact knowing it to be false or knowingly failing to disclose a material fact, to obtain or increase any benefit or other payment under the Virginia Unemployment Compensation Act (§ 60.2-100 et seq.) shall be commenced within three years next after the commission of the offense.
A prosecution for any violation of § 10.1-1320 , 62.1-44.32 (b) , 62.1-194.1 , or Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of Title 62.1 that involves the discharge, dumping or emission of any toxic substance as defined in § 32.1-239 shall be commenced within three years next after the commission of the offense.
Prosecution of Building Code violations under § 36-106 shall commence within one year of discovery of the offense by the building official, provided that such discovery occurs within two years of the date of initial occupancy or use after construction of the building or structure, or the issuance of a certificate of use and occupancy for the building or structure, whichever is later. However, prosecutions under § 36-106 relating to the maintenance of existing buildings or structures as contained in the Uniform Statewide Building Code shall commence within one year of the issuance of a notice of violation for the offense by the building official.
Prosecution of any misdemeanor violation of § 54.1-111 shall commence within one year of the discovery of the offense by the complainant, but in no case later than five years from occurrence of the offense.
Prosecution of any misdemeanor violation of any professional licensure requirement imposed by a locality shall commence within one year of the discovery of the offense by the complainant, but in no case later than five years from occurrence of the offense.
Prosecution of nonfelonious offenses which constitute malfeasance in office shall commence within two years next after the commission of the offense.
Prosecution for a violation for which a penalty is provided for by § 55.1-1989 shall commence within three years next after the commission of the offense.
Prosecution of illegal sales or purchases of wild birds, wild animals and freshwater fish under § 29.1-553 shall commence within three years after commission of the offense.
Prosecution of violations under Title 58.1 for offenses involving false or fraudulent statements, documents or returns, or for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof, or for the offense of willfully failing to pay any tax, or willfully failing to make any return at the time or times required by law or regulations shall commence within three years next after the commission of the offense, unless a longer period is otherwise prescribed.
Prosecution of violations of subsection A or B of § 3.2-6570 shall commence within five years of the commission of the offense, except violations regarding agricultural animals shall commence within one year of the commission of the offense.
A prosecution for a violation of § 18.2-386.1 shall be commenced within five years of the commission of the offense.
A prosecution for any violation of the Campaign Finance Disclosure Act, Chapter 9.3 (§ 24.2-945 et seq.) of Title 24.2, shall commence within one year of the discovery of the offense but in no case more than three years after the date of the commission of the offense.
A prosecution of a crime that is punishable as a misdemeanor pursuant to the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) or pursuant to § 18.2-186.3 for identity theft shall be commenced before the earlier of (i) five years after the commission of the last act in the course of conduct constituting a violation of the article or (ii) one year after the existence of the illegal act and the identity of the offender are discovered by the Commonwealth, by the owner, or by anyone else who is damaged by such violation.
A prosecution of a misdemeanor under § 18.2-64.2 , 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , or 18.2-370.6 where the victim is a minor at the time of the offense shall be commenced no later than one year after the victim reaches majority, unless the alleged offender of such offense was an adult and more than three years older than the victim at the time of the offense, in which instance such prosecution shall be commenced no later than five years after the victim reaches majority.
A prosecution for a violation of § 18.2-260.1 shall be commenced within three years of the commission of the offense.
Nothing in this section shall be construed to apply to any person fleeing from justice or concealing himself within or without the Commonwealth to avoid arrest or be construed to limit the time within which any prosecution may be commenced for desertion of a spouse or child or for neglect or refusal or failure to provide for the support and maintenance of a spouse or child.
(Code 1950, § 19.1-8; 1960, c. 366; 1974, c. 466; 1975, c. 495; 1976, cc. 114, 620; 1977, c. 108; 1978, c. 730; 1979, c. 243; 1980, c. 496; 1981, c. 31; 1984, c. 601; 1987, c. 488; 1990, cc. 575, 976; 1992, cc. 177, 435, 650; 1996, c. 484; 1998, c. 566; 1999, c. 620; 2005, cc. 746, 761, 827; 2006, cc. 193, 787, 892; 2008, c. 769; 2011, cc. 118, 143, 494, 553; 2014, c. 169; 2015, c. 176; 2016, cc. 233, 253; 2017, c. 667; 2018, c. 549; 2020, cc. 277, 1122.)
Editor's note. - Acts 1976, c. 620, cl. 3 provides: "That the amended period of limitation for prosecutions provided for by this act shall apply only to offenses committed subsequent to the effective date of this act [April 9, 1976]."
Effective October 1, 2008, the reference to "subsection A or B of § 3.1-796.122" was changed to "subsection A or B of § 3.2-6570" to conform to Acts 2008, c. 860.
Acts 2005, c. 746, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
Acts 2005, cc. 761 and 827, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
Acts 2016, cc. 233 and 253, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 665 of the Acts of Assembly of 2015 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
Acts 2018, c. 549, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 836 of the Acts of Assembly of 2017 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Prosecution for a violation for which a penalty is provided for by § 55.1-1989 " for "Prosecution of any violation of § 55-79.87, 55-79.88, 55-79.89, 55-79.90, 55-79.93, 55-79.94, 55-79.95, 55-79.103, or any rule adopted under or order issued pursuant to § 55-79.98."
Acts 2020, cc. 277 and 1122, in cl. 2 provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
The 1999 amendment inserted "or B" in the tenth paragraph.
The 2005 amendments. - The 2005 amendments by cc. 746, 761 and 827 are identical, and substituted "that" for "which" preceding "involves the discharge" in the fourth paragraph; inserted the next to the last paragraph; substituted "the" for "this" preceding "Commonwealth" in the last paragraph; and made minor stylistic changes.
The 2006 amendments. - The 2006 amendment by c. 193 added the sixth paragraph.
The 2006 amendments by cc. 787 and 892 are identical, and substituted "Chapter 9.3 ( § 24.2-945 et seq.) of Title 24.2" for "( § 24.2-900 et seq.)" in the thirteenth paragraph.
The 2008 amendments. - The 2008 amendment by c. 769 inserted "or pursuant to § 18.2-186.3 for identity theft" in the fourteenth paragraph.
The 2011 amendments. - The 2011 amendments by cc. 118 and 143 are identical, and in the sixth paragraph, deleted "by the owner or" following "discovery of the offense" in the first sentence, and added "by the building official" in the last sentence.
The 2011 amendment by c. 494 added the eighth paragraph.
The 2011 amendment by c. 553 added the second paragraph.
The 2014 amendments. - The 2014 amendment by c. 169 added the second to last paragraph.
The 2015 amendments. - The 2015 amendment by c. 176 substituted "issuance of a notice of violation for" for "discovery of" in the sixth paragraph.
The 2016 amendments. - The 2016 amendments by cc. 233 and 253 are identical, and inserted "A prosecution of a misdemeanor under § 18.2-64.2 , 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , or 18.2-370.6 where the victim is a minor at the time of the offense shall be commenced no later than one year after the victim reaches majority."
The 2017 amendments. - The 2017 amendment by c. 667 inserted "18.2-51.7" in the second-from-last paragraph.
The 2018 amendments. - The 2018 amendment by c. 549 deleted the reference to "18.2-51.7" in the seventeenth paragraph.
The 2020 amendments. - The 2020 amendments by cc. 277 and 1122 are identical, and added "unless the alleged offender of such offense was an adult and more than three years older than the victim at the time of the offense, in which instance such prosecution shall be commenced no later than five years after the victim reaches majority" in the third from last paragraph.
Law review. - For a discussion of statutory changes in child placement by the 1978 session of the General Assembly, see 12 U. Rich. L. Rev. 739 (1978).
For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).
For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).
Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 5; 2A M.J. Assault and Battery, § 10; 3A M.J. Banks and Banking, § 89; 12A M.J. Larceny, § 32; 12A M.J. Limitation of Actions, §§ 1, 21.
CASE NOTES
Applicability. - Larceny that was a misdemeanor was a petit larceny, there were no other possibilities for other larcenies within the context of § 18.2-181 . Since § 18.2-96 had no impact upon the foregoing analysis, the one year statute of limitations, which applied to misdemeanors, did not apply to defendant's act of passing a bad check for $140.88. Foster v. Commonwealth, 271 Va. 235 , 623 S.E.2d 902, 2006 Va. LEXIS 6 (2006).
Trial court did not err in ruling that the contempt charge against defendant was not time-barred; as contempt proceedings are not "criminal prosecutions," statutes of limitation for crimes do not apply to bar them. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).
Trial court did not err in ruling that the contempt charge against defendant was not time-barred; a violation of § 19.2-358 is not classified as a misdemeanor, and thus this section does not apply. Porter v. Commonwealth, 65 Va. App. 467, 778 S.E.2d 549, 2015 Va. App. LEXIS 327 (2015).
This section prescribes the limitation of criminal prosecution generally. Quillin v. Commonwealth, 105 Va. 874 , 54 S.E. 333 (1906).
It has no application to a civil contempt proceeding against a husband for his refusal to obey decrees directing him to pay counsel fees and court costs incurred by his wife in a divorce suit. Eddens v. Eddens, 188 Va. 511 , 50 S.E.2d 397 (1948).
This section is not applicable to a civil action based on common-law fraud. Reid v. Madison, 455 F. Supp. 1066 (E.D. Va. 1978).
This section is inapplicable to habitual offender proceedings under former § 46.1-387.1 et seq. (see now § 46.2-356 et seq.), because the habitual offender proceedings are civil in nature and not criminal. Furthermore, the Habitual Offender Act itself contemplates certification after more than five years. Bouldin v. Commonwealth, 4 Va. App. 166, 355 S.E.2d 352 (1987).
A presentment for a misdemeanor is the commencement of the prosecution; and unless the prosecution is then barred by the statute of limitations, it will not be barred by the failure to file an information or indictment upon the presentment before the time of limitations runs out. Commonwealth v. Christian, 48 Va. (7 Gratt.) 631 (1850).
Issuance of warrant commences prosecution for misdemeanor. - The issuance of a warrant commences prosecution within meaning of the provision that "a prosecution for a misdemeanor . . . shall be commenced within one year next after there was cause therefor." Hall v. Commonwealth, 2 Va. App. 159, 342 S.E.2d 640 (1986).
Felony warrant does not bar prosecution for lesser included misdemeanor. - The fact that the warrant (and subsequent indictment) charged a felony does not bar prosecution for a lesser included misdemeanor so long as the prosecution was commenced within the applicable limitation period. Hall v. Commonwealth, 2 Va. App. 159, 342 S.E.2d 640 (1986).
Lesser-included offenses. - Trial court erred in denying defendant's motion to set aside a verdict convicting her of misdemeanor battery because prosecution of that misdemeanor was barred by the applicable statute of limitations where it was commenced more than one year from the date of the offense, no warrant was issued on the charge, and the purpose and meaning of the statute of limitations would be negated if the Commonwealth could charge her with a felony after the limitations period on the misdemeanor had run, just to obtain a conviction on the misdemeanor when the evidence was insufficient to convict for the greater felony. Taylor v. Commonwealth, 64 Va. App. 282, 767 S.E.2d 721, 2015 Va. App. LEXIS 20 (2015).
The duty to pay a penalty for the violation of a legal regulation is a legal obligation not contractual in its nature and the limitation applicable is one year. Director Gen. of R.Rs. v. E.W. Gates & Son Co., 7 Va. L. Reg. (n.s.) 253 (1921).
Information in nature of writ of quo warranto. - An early act which limited the prosecution of certain indictments or informations to one year was held not to apply to an information in the nature of a writ of quo warranto. Commonwealth v. Birchett, 4 Va. (2 Va. Cas.) 51 (1816).
Indictment should show offense committed within statutory period. - Where there is a limitation barring the prosecution after a certain time, such facts should be stated in the indictment as will show that the offense charged was committed within the statutory period. Shiflett v. Commonwealth, 114 Va. 876 , 77 S.E. 606 (1913).
Presentments issued by grand jury charging defendant with causing or creating a public nuisance and of permitting the continuation of a public nuisance were not fatally defective after the trial court amended the presentments to cover a one-year time period, which was the allotted time-period for prosecution of a misdemeanor, instead of the two-year time period that had been set forth; the trial court's amendment merely narrowed the time alleged in the presentments and did not change the nature of the offenses charged against defendant. Niazi v. Commonwealth, No. 2283-02-2, 2004 Va. App. LEXIS 102 (Ct. of Appeals Mar. 9, 2004).
Presumption on appeal. - After a verdict of conviction for a misdemeanor, an appellate court will presume that the offense was proved to have been within the period of limitation, where the record does not show the contrary. Earhart v. Commonwealth, 36 Va. (9 Leigh) 671 (1839).
Prosecution of misdemeanor brought after dismissal of manslaughter indictment. - On a trial for involuntary manslaughter, the trial court, after hearing the evidence, dismissed the manslaughter indictment, issued a bench warrant charging defendant with driving under the influence of alcohol, and found him guilty as charged. It was held that, since the warrant was issued more than one year after the accident upon which the prosecution was based occurred, and charged a specific misdemeanor for which defendant could not have been convicted under the indictment for which he was then being tried, the prosecution was barred by the statute of limitations. Ange v. Commonwealth, 217 Va. 861 , 234 S.E.2d 64 (1977).
Prosecution for Building Code violations held timely. - Violations of § 119.2 of the Uniform Statewide Building Code are not continuing ones. Nevertheless, prosecution commenced within the applicable limitation period, where the building inspector did not "discover" the violations until January of 1984 when he concluded his investigation and then notified the construction company of the offenses, and prosecution began on October 16, 1984, within one year of discovery of the statutory violations. Granny's Cottage Inc. v. Town of Occoquan, 3 Va. App. 577, 352 S.E.2d 10 (1987) (decided under prior law).
CIRCUIT COURT OPINIONS
Privilege against self-incrimination inapplicable to husband's alleged adulterous affairs occurring more than a year prior to his deposition. - Because the statute of limitations in § 19.2-8 did not apply to a husband's alleged adulterous affairs occurring more than a year prior to his deposition, the husband could not invoke the privilege against self-incrimination found in U.S. Const., Amend. V and Va. Const., Art. I, § 8. Brubach v. Hystad, 68 Va. Cir. 181, 2005 Va. Cir. LEXIS 68 (Greene County 2005).
Civil penalty. - Limitations period for filing an action for violation of the Virginia high-occupancy toll (HOT) lanes statute, which required a court to impose a civil penalty for violations of the statute, was one year because an action under the statute was a prosecution resulting in a pecuniary penalty. Commonwealth v. Cooley, 90 Va. Cir. 154, 2015 Va. Cir. LEXIS 65 (Fairfax County Apr. 7, 2015).
Toll road violations. - Defendant's toll road violations had to be dismissed as untimely under the one-year statute of limitations because, while the applicable statute provided that it "shall be tried as a civil case," it appeared in the portion of the Code reserved for traffic offenses, provided for escalating civil penalties for subsequent violations, was akin to a misdemeanor, and constituted a "prosecution" involving a "pecuniary fine" or "penalty." Dulles Toll Rd. v. Diggs, 90 Va. Cir. 377, 2015 Va. Cir. LEXIS 109 (Fairfax County June 29, 2015).
Relation to discovery request. - Any answer by the husband to the interrogatory or request for admission that disclosed misdemeanor acts of adultery in Virginia more than one year prior to the date of the discovery response could not be used as a basis for a criminal prosecution, and thus he could not claim a privilege against self-incrimination with respect to any of those acts. B.B. v. TB, 101 Va. Cir. 190, 2019 Va. Cir. LEXIS 28 (Fairfax County Feb. 12, 2019).
CIRCUIT COURT OPINIONS
Misdemeanors. - Plaintiff was ordered to answer the interrogatory related to adultery; as the statute of limitations for a misdemeanor was one year, plaintiff faced no risk of prosecution. Zakia v. Zakia, 104 Va. Cir. 168, 2020 Va. Cir. LEXIS 7 (Fairfax County Jan. 24, 2020).
§ 19.2-8.1. Prosecution for murder or manslaughter; passage of time not a limitation.
A prosecution for murder or manslaughter, whether at common law or under the Code of Virginia, may be instituted regardless of the time elapsed between the act or omission causing the death of the victim and the death of the victim.
(2009, c. 278.)
§ 19.2-9. Prosecution of certain criminal cases removed from state to federal courts; costs.
When any person indicted in the courts of this Commonwealth for a violation of its laws, has his case removed to the district court of the United States under 28 U.S.C. § 1442, it shall be the duty of the attorney for the Commonwealth for the county or city in which any such indictment is found to prosecute any such case in the United States district court to which the same shall be so removed, and for his services in this behalf he shall be paid a fee of $100 for each case tried by him in such United States district court, and mileage at the rate now allowed by law to the members of the General Assembly for all necessary travel in going to and returning from such court, to be paid on his account when approved by the Attorney General.
A per diem of one dollar and fifty cents for each day of actual attendance upon such United States district court and mileage at a rate as provided by law for every mile of necessary travel in going to and returning from such court shall be paid out of the state treasury to each witness for the Commonwealth in every such case upon accounts therefor against the Commonwealth, certified by the attorney for the Commonwealth prosecuting such case and approved by the Attorney General.
It shall not be the duty of the Attorney General to appear for the Commonwealth in such cases unless he can do so without interfering with the efficient discharge of the duties imposed upon him by law; but he may appear with the attorney for the Commonwealth prosecuting such case in any case when the interests of the Commonwealth may in his judgment require his presence.
The Comptroller shall from time to time draw his warrants upon the state treasury in favor of the parties entitled to be paid the above compensation and expenses, or their assigns, upon bills certified and approved as above prescribed.
(Code 1950, § 19.1-14; 1960, c. 366; 1975, c. 495.)
§ 19.2-9.1. Written notice required for complaining witness who is requested to take polygraph test.
- For offenses not specified in subsection B, if a complaining witness is requested to submit to a polygraph examination during the course of a criminal investigation, such witness shall be informed in writing prior to the examination that (i) the examination is voluntary, (ii) the results thereof are inadmissible as evidence and (iii) the agreement of the complaining witness to submit thereto shall not be the sole condition for initiating or continuing the criminal investigation.
- No law-enforcement officer, attorney for the Commonwealth, or other government official shall ask or require a victim of an alleged sex offense to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an offense. If a victim is requested to submit to a polygraph examination during the course of a criminal investigation, such victim shall be informed in writing of the provisions of subsection A and that the refusal of a victim to submit to such an examination shall not prevent the investigation, charging, or prosecution of the offense.
- A "sex offense," for the purposes of this section, shall mean any offense set forth in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2. (1994, c. 336; 2008, cc. 512, 748.)
Cross references. - As to response policies and procedures in sexual assault cases, see § 9.1-1301 .
The 2008 amendments. - The 2008 amendments by cc. 512 and 748 are nearly identical, and designated the existing provisions of this section as subsection A; in subsection A, substituted "For offenses not specified in subsection B, if" for "If" at the beginning; and added subsections B and C.
§ 19.2-10. Outlawry abolished.
No proceeding of outlawry shall hereafter be instituted or prosecuted.
(Code 1950, § 19.1-15; 1960, c. 366; 1975, c. 495.)
§ 19.2-10.1. Subpoena duces tecum for obtaining records concerning banking and credit cards.
-
A financial institution as defined in §
6.2-604
, money transmitter as defined in §
6.2-1900
, or commercial businesses providing credit history or credit reports; or an issuer as defined in §
6.2-424
shall disclose a record or other information pertaining to a customer, to a law-enforcement officer pursuant to a subpoena duces tecum issued pursuant to this section.
- In order to obtain such records, the law-enforcement official shall provide a statement of the facts documenting the reasons that the records or other information sought are relevant to a legitimate law-enforcement inquiry, relating to a named person or persons, to the attorney for the Commonwealth. A court shall issue a subpoena duces tecum upon motion of the Commonwealth only if the court finds that there is probable cause to believe that a crime has been committed and to believe the records sought or other information sought, including electronic data and electronic communications, are relevant to a legitimate law-enforcement inquiry into that offense. The court may issue a subpoena duces tecum under this section regardless of whether any criminal charges have been filed.
- A court issuing an order pursuant to this section, on a motion made promptly by the financial institution or credit card issuer, or enterprise may quash or modify the subpoena duces tecum, if the information or records requested are unusually voluminous in nature or compliance with such subpoena duces tecum would otherwise cause an undue burden on such provider.
- No cause of action shall lie in any court against a financial institution or credit card issuer, or enterprise, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a subpoena duces tecum under this section.
- Upon issuance of a subpoena duces tecum under this section, the statement shall be temporarily sealed by the court upon application of the attorney for the Commonwealth for good cause shown in an ex parte proceeding. Any individual arrested and claiming to be aggrieved by the order may move the court for the unsealing of the statement, and the burden of proof with respect to continued sealing shall be upon the Commonwealth.
-
Any and all records received by law enforcement pursuant to this section shall be utilized only for a reasonable amount of time and only for a legitimate law-enforcement purpose. Upon the completion of the investigation the records shall be submitted to the court by the attorney for the Commonwealth along with a proposed order requiring the records to be sealed. Upon entry of such order, the court shall seal the records in accordance with the requirements contained in subsection C.
(2003, cc. 223, 541, 549; 2004, cc. 883, 996; 2010, cc. 702, 794.)
Editor's note. - Acts 2003, cc. 541 and 549, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
Acts 2004, cc. 883 and 995, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2004 amendments. - The 2004 amendment by cc. 883 and 996 are identical, and inserted "money transmitter as defined in § 6.1-370, or commercial businesses providing credit history or credit reports" in subsection A; and inserted "or enterprise" following "card issuer" in subdivision A 2 and subsection B.
The 2010 amendments. - The 2010 amendment by c. 702 inserted "including electronic data and electronic communications" in the second sentence of subdivision A 1.
The 2010 amendment by c. 794, effective October 1, 2010, in subsection A, substituted "6.2-604" for "6.1-125.1," "6.2-1900" for "6.1-370," and "an issuer as defined in § 6.2-424 " for "a credit card issuer as defined in § 11-30 ."
Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).
Research References. - Virginia Forms (Matthew Bender). No. 7-130. Subpoena Duces Tecum for Financial Records.
§ 19.2-10.2. Administrative subpoena issued for record from provider of electronic communication service or remote computing service.
-
A provider of electronic communication service or remote computing service that is transacting or has transacted any business in the Commonwealth shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications as required by §
19.2-70.3
, to an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section.
- In order to obtain such records or other information, the attorney for the Commonwealth or the Attorney General shall certify on the face of the subpoena that there is reason to believe that the records or other information being sought are relevant to a legitimate law-enforcement investigation concerning violations of §§ 18.2-47 , 18.2-48 , 18.2-49 , 18.2-346 , 18.2-346.01 , 18.2-347 , 18.2-348 , 18.2-348 .1, 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-374.1 , and 18.2-374.1 :1, former § 18.2-374.1:2 , and § 18.2-374.3 .
- Upon written certification by the attorney for the Commonwealth or the Attorney General that there is a reason to believe that the victim is under the age of 18 and that notification or disclosure of the existence of the subpoena will endanger the life or physical safety of an individual, or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation, the subpoena shall include a provision ordering the service provider not to notify or disclose the existence of the subpoena to another person, other than an attorney to obtain legal advice, for a period of 30 days after the date on which the service provider responds to the subpoena.
- On a motion made promptly by the electronic communication service or remote computing service provider, a court of competent jurisdiction may quash or modify the administrative subpoena if the records or other information requested are unusually voluminous in nature or if compliance with the subpoena would otherwise cause an undue burden on the service provider.
- All records or other information received by an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section shall be used only for a reasonable length of time not to exceed 30 days and only for a legitimate law-enforcement purpose. Upon completion of the investigation, the records or other information held by the attorney for the Commonwealth or the Attorney General shall be destroyed if no prosecution is initiated. The existence of such a subpoena shall be disclosed upon motion of an accused.
- No cause of action shall lie in any court against an electronic communication service or remote computing service provider, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of an administrative subpoena issued under this section.
- Records or other information pertaining to a subscriber to or customer of such service means name, address, local and long distance telephone connection records, or records of session times and durations, length of service, including start date, and types of service utilized, telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address, and means and source of payment for such service.
-
Nothing in this section shall require the disclosure of information in violation of any federal law.
(2007, cc. 802, 814; 2014, c. 166; 2015, cc. 544, 625; 2019, c. 458; 2021, Sp. Sess. I, c. 188.)
The 2014 amendments. - The 2014 amendment by c. 166 in subdivision A 1 inserted "18.2-47, 18.2-48 , 18.2-49 , 18.2- 346, 18.2-347 , 18.2-348 , 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 " and made a minor stylistic change.
The 2015 amendments. - The 2015 amendments by cc. 544 and 625 are identical, and inserted "or the Attorney General" following "Commonwealth" in the first paragraph of subsection A, in subdivision A 1 and throughout subsection B; added subdivision A 2; redesignated former subdivision A 2 as subdivision A 3; and inserted the third sentence of subsection B.
The 2019 amendments. - The 2019 amendment by c. 458 inserted "18.2-348.1" in subdivision A 1.
The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, inserted "18.2-346.01" in subdivision A 1.
§ 19.2-10.3. Reasonable suspicion required to stop, board, or inspect a noncommercial vessel on navigable waters of the Commonwealth.
- Notwithstanding any other provision of law, no law-enforcement officer charged with enforcing laws or regulations on the navigable waters of the Commonwealth shall stop, board, or inspect any noncommercial vessel on the navigable waters of the Commonwealth unless such officer has reasonable suspicion that a violation of law or regulation exists.
- The provisions of subsection A shall not apply to lawful stops, boardings, or inspections conducted by conservation police officers, as defined in § 29.1-100 , or the Virginia Marine Police for the purposes of inspecting hunting, fishing, and trapping licenses pursuant to §§ 28.2-231 and 29.1-337 or creel and bag limit inspections pursuant to § 29.1-209 , nor shall it prohibit lawful boating safety checkpoints conducted by conservation police officers and Virginia Marine Police in accordance with established agency policy. (2015, c. 484.)
§ 19.2-10.4. Subpoena duces tecum; attorney-issued subpoena duces tecum.
In any criminal case a subpoena duces tecum may be issued by the attorney of record who is an active member of the Virginia State Bar at the time of issuance, as an officer of the court. Any such subpoena duces tecum shall be on a form approved by the Executive Secretary of the Supreme Court of Virginia, signed by the attorney of record as if a pleading, and shall include the attorney's address. A copy of the signed subpoena duces tecum, together with the attorney's certificate of service pursuant to Rule 1:12, shall be mailed or delivered to the adverse party and to the clerk's office of the court in which the case is pending on the day of issuance by the attorney. The law governing subpoenas duces tecum issued pursuant to Rule 3A:12(b) shall apply. A sheriff shall not be required to serve an attorney-issued subpoena duces tecum that is not issued at least five business days prior to the date production of evidence is desired. When an attorney transmits one or more subpoenas duces tecum to a sheriff to be served in his jurisdiction, the provisions in § 8.01-407 regarding such transmittals shall apply.
If the time for compliance with a subpoena duces tecum issued by an attorney is less than 14 days after service of the subpoena, the person to whom it is directed may serve upon the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection, or testing should not be required. If objection is made, the party on whose behalf the subpoena duces tecum was issued and served shall not be entitled to the requested production, inspection, or testing, except pursuant to an order of the court, but may, upon notice to the person to whom the subpoena was directed, move for an order to compel production, inspection, or testing. Upon such timely motion, the court may quash, modify, or sustain the subpoena duces tecum.
Subpoenas duces tecum for medical records issued by an attorney shall be subject to the provisions of §§ 8.01-413 and 32.1-127.1:03 , except that no separate fee for issuance shall be imposed.
(2020, c. 771.)
§ 19.2-11. Procedure in contempt cases.
No court or judge shall impose a fine upon a juror, witness or other person for disobedience of its process or any contempt, unless he either be present in court at the time, or shall have been served with a rule, returnable to a certain time, requiring him to show cause why the fine should not be imposed and shall have failed to appear and show cause.
(Code 1950, § 19.1-16; 1960, c. 366; 1968, c. 639; 1975, c. 495.)
Cross references. - For general provisions relating to contempt, see §§ 18.2-456 through 18.2-459 and notes thereto.
Research References. - Virginia Forms (Matthew Bender). No. 2-1414. Order Against a Witness to Show Cause Why a Fine for Contempt Should Not Be Imposed, et seq.
Michie's Jurisprudence. - For related discussion, see 4A M.J. Contempt, §§ 22, 29; 9A M.J. Grand Jury, § 16.
CASE NOTES
When contempt to be adjudicated. - This section does not require the trial judge to adjudicate a contempt committed in his presence at the very instant of the alleged misbehavior or disobedience of the court's ruling. He may do so under § 18.2-456 , but he is not required to. Higginbotham v. Commonwealth, 206 Va. 291 , 142 S.E.2d 746 (1965).
Death of the contemnor. - Punishment may not be imposed in a civil contempt proceeding when it is established that the contemnor is unable to comply with the terms of the order or to purge himself; therefore when contemnor spouse has died, the court's personal jurisdiction ends. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004).
Concealment of witnesses. - Where a court orders a subpoena for witnesses to attend the grand jury and they intentionally conceal themselves, and so prevent the process from being served until the grand jury is discharged, this is not a contempt punishable by the court in a summary manner. Commonwealth v. Deskins, 31 Va. (4 Leigh) 685 (1834).
Chapter 1.1. Crime Victim and Witness Rights Act.
Sec.
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 19 Trial Procedure. § 19.02 Order of Procedure at Trial. Friend.
Virginia Forms (Matthew Bender). No. 9-2207. Request for Confidentiality by Crime Victim. No. 9-2208. Request for Confidentiality by Crime Victim (Spanish).
§ 19.2-11.01. Crime victim and witness rights.
-
In recognition of the Commonwealth's concern for the victims and witnesses of crime, it is the purpose of this chapter to ensure that the full impact of crime is brought to the attention of the courts of the Commonwealth; that crime victims and witnesses are treated with dignity, respect and sensitivity; and that their privacy is protected to the extent permissible under law. It is the further purpose of this chapter to ensure that victims and witnesses are informed of the rights provided to them under the laws of the Commonwealth; that they receive authorized services as appropriate; and that they have the opportunity to be heard by law-enforcement agencies, attorneys for the Commonwealth, corrections agencies and the judiciary at all critical stages of the criminal justice process to the extent permissible under law. Unless otherwise stated and subject to the provisions of §
19.2-11.1
, it shall be the responsibility of a locality's crime victim and witness assistance program to provide the information and assistance required by this chapter, including verification that the standardized form listing the specific rights afforded to crime victims has been received by the victim.
As soon as practicable after identifying a victim of a crime, the investigating law-enforcement agency shall provide the victim with a standardized form listing the specific rights afforded to crime victims. The form shall include a telephone number by which the victim can receive further information and assistance in securing the rights afforded crime victims, the name, address and telephone number of the office of the attorney for the Commonwealth, the name, address and telephone number of the investigating law-enforcement agency, and a summary of the victim's rights under §
40.1-28.7:2
.
-
Victim and witness protection and law-enforcement contacts.
- In order that victims and witnesses receive protection from harm and threats of harm arising out of their cooperation with law-enforcement, or prosecution efforts, they shall be provided with information as to the level of protection which may be available pursuant to § 52-35 or to any other federal, state or local program providing protection, and shall be assisted in obtaining this protection from the appropriate authorities.
- Victims and witnesses shall be provided, where available, a separate waiting area during court proceedings that affords them privacy and protection from intimidation, and that does not place the victim in close proximity to the defendant or the defendant's family.
-
Financial assistance.
- Victims shall be informed of financial assistance and social services available to them as victims of a crime, including information on their possible right to file a claim for compensation from the Crime Victims' Compensation Fund pursuant to Chapter 21.1 (§ 19.2-368.1 et seq.) and on other available assistance and services.
- Victims shall be assisted in having any property held by law-enforcement agencies for evidentiary purposes returned promptly in accordance with §§ 19.2-270.1 and 19.2-270.2 .
- Victims shall be advised that restitution is available for damages or loss resulting from an offense and shall be assisted in seeking restitution in accordance with §§ 19.2-305 and 19.2-305.1 , Chapter 21.1 (§ 19.2-368.1 et seq.), Article 21 (§ 58.1-520 et seq.) of Chapter 3 of Title 58.1, and other applicable laws of the Commonwealth.
-
Notices.
- Victims and witnesses shall be (i) provided with appropriate employer intercession services to ensure that employers of victims and witnesses will cooperate with the criminal justice process in order to minimize an employee's loss of pay and other benefits resulting from court appearances and (ii) advised that pursuant to § 18.2-465.1 it is unlawful for an employer to penalize an employee for appearing in court pursuant to a summons or subpoena.
- Victims shall receive advance notification when practicable from the attorney for the Commonwealth of judicial proceedings relating to their case and shall be notified when practicable of any change in court dates in accordance with § 19.2-265.01 if they have provided their names, current addresses and telephone numbers.
- Victims shall receive notification, if requested, subject to such reasonable procedures as the Attorney General may require pursuant to § 2.2-511 , from the Attorney General of the filing and disposition of any appeal or habeas corpus proceeding involving their case.
- Victims shall be notified by the Department of Corrections or a sheriff or jail superintendent (i) in whose custody an escape, change of name, transfer, release or discharge of a prisoner occurs pursuant to the provisions of §§ 53.1-133.02 and 53.1-160 or (ii) when an accused is released on bail, if they have provided their names, current addresses and telephone numbers in writing. Such notification may be provided through the Virginia Statewide VINE (Victim Information and Notification Everyday) System or other similar electronic or automated system.
- Victims shall be advised that, in order to protect their right to receive notices and offer input, all agencies and persons having such duties must have current victim addresses and telephone numbers given by the victims. Victims shall also be advised that any such information given shall be confidential as provided by § 19.2-11.2 .
- Victims of sexual assault, as defined in § 19.2-11.5 , shall be advised of their rights regarding physical evidence recovery kits as provided in Chapter 1.2 (§ 19.2-11.5 et seq.).
- Upon the victim's request, the victim shall be notified by the Commissioner of Behavioral Health and Developmental Services or his designee of the release of a defendant (i) who was found to be unrestorably incompetent and was committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, committed pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, or certified pursuant to § 37.2-806 or (ii) who was acquitted by reason of insanity and committed pursuant to § 19.2-182.3 .
-
Victim input.
- Victims shall be given the opportunity, pursuant to § 19.2-299.1 , to prepare a written victim impact statement prior to sentencing of a defendant and may provide information to any individual or agency charged with investigating the social history of a person or preparing a victim impact statement under the provisions of §§ 16.1-273 and 53.1-155 or any other applicable law.
- Victims shall have the right to remain in the courtroom during a criminal trial or proceeding pursuant to the provisions of § 19.2-265.01 .
- On motion of the attorney for the Commonwealth, victims shall be given the opportunity, pursuant to § 19.2-295.3 , to testify prior to sentencing of a defendant regarding the impact of the offense.
- In a felony case, the attorney for the Commonwealth, upon the victim's written request, shall consult with the victim either verbally or in writing (i) to inform the victim of the contents of a proposed plea agreement and (ii) to obtain the victim's views about the disposition of the case, including the victim's views concerning dismissal, pleas, plea negotiations and sentencing. However, nothing in this section shall limit the ability of the attorney for the Commonwealth to exercise his discretion on behalf of the citizens of the Commonwealth in the disposition of any criminal case. The court shall not accept the plea agreement unless it finds that, except for good cause shown, the Commonwealth has complied with clauses (i) and (ii). Good cause shown shall include, but not be limited to, the unavailability of the victim due to incarceration, hospitalization, failure to appear at trial when subpoenaed, or change of address without notice. Upon the victim's written request, the victim shall be notified in accordance with subdivision A 3 b of any proceeding in which the plea agreement will be tendered to the court. The responsibility to consult with the victim under this subdivision shall not confer upon the defendant any substantive or procedural rights and shall not affect the validity of any plea entered by the defendant.
-
Courtroom assistance.
- Victims and witnesses shall be informed that their addresses, any telephone numbers, and email addresses may not be disclosed, pursuant to the provisions of §§ 19.2-11.2 and 19.2-269.2 , except when necessary for the conduct of the criminal proceeding.
- Victims and witnesses shall be advised that they have the right to the services of an interpreter in accordance with §§ 19.2-164 and 19.2-164.1 .
- Victims and witnesses of certain sexual offenses shall be advised that there may be a closed preliminary hearing in accordance with § 18.2-67.8 and, if a victim was 14 years of age or younger on the date of the offense and is 16 or under at the time of the trial, or a witness to the offense is 14 years of age or younger at the time of the trial, that two-way closed-circuit television may be used in the taking of testimony in accordance with § 18.2-67.9 .
-
Post trial assistance.
- Within 30 days of receipt of a victim's written request after the final trial court proceeding in the case, the attorney for the Commonwealth shall notify the victim in writing, of (i) the disposition of the case, (ii) the crimes of which the defendant was convicted, (iii) the defendant's right to appeal, if known, and (iv) the telephone number of offices to contact in the event of nonpayment of restitution by the defendant.
- If the defendant has been released on bail pending the outcome of an appeal, the agency that had custody of the defendant immediately prior to his release shall notify the victim as soon as practicable that the defendant has been released.
- If the defendant's conviction is overturned, and the attorney for the Commonwealth decides to retry the case or the case is remanded for a new trial, the victim shall be entitled to the same rights as if the first trial did not take place.
-
Victim and witness protection and law-enforcement contacts.
- For purposes of this chapter, "victim" means (i) a person who has suffered physical, psychological, or economic harm as a direct result of the commission of (a) a felony, (b) assault and battery in violation of § 18.2-57 or 18.2-57.2 , stalking in violation of § 18.2-60.3 , a violation of a protective order in violation of § 16.1-253.2 or 18.2-60.4 , sexual battery in violation of § 18.2-67.4 , attempted sexual battery in violation of § 18.2-67.5 , or maiming or driving while intoxicated in violation of § 18.2-51.4 or 18.2-266 , or (c) a delinquent act that would be a felony or a misdemeanor violation of any offense enumerated in clause (b) if committed by an adult; (ii) a spouse or child of such a person; (iii) a parent or legal guardian of such a person who is a minor; (iv) for the purposes of subdivision A 4 only, a current or former foster parent or other person who has or has had physical custody of such a person who is a minor, for six months or more or for the majority of the minor's life; or (v) a spouse, parent, sibling, or legal guardian of such a person who is physically or mentally incapacitated or was the victim of a homicide; however, "victim" does not mean a parent, child, spouse, sibling, or legal guardian who commits a felony or other enumerated criminal offense against a victim as defined in clause (i).
-
Officials and employees of the judiciary, including court services units, law-enforcement agencies, the Department of Corrections, attorneys for the Commonwealth and public defenders, shall be provided with copies of this chapter by the Department of Criminal Justice Services or a crime victim and witness assistance program. Each agency, officer or employee who has a responsibility or responsibilities to victims under this chapter or other applicable law shall make reasonable efforts to become informed about these responsibilities and to ensure that victims and witnesses receive such information and services to which they may be entitled under applicable law, provided that no liability or cause of action shall arise from the failure to make such efforts or from the failure of such victims or witnesses to receive any such information or services.
(1995, c. 687; 1996, c. 546; 1997, c. 691; 1998, c. 485; 1999, cc. 668, 702, 844; 2000, cc. 272, 827; 2001, cc. 410, 530, 549; 2002, cc. 310, 810, 818; 2003, cc. 103, 751, 764; 2006, c. 241; 2007, cc. 94, 109, 423; 2014, c. 230; 2017, c. 535; 2018, cc. 47, 83; 2019, c. 216; 2021, Sp. Sess. I, cc. 344, 345.)
Cross references. - As to a victim of crime or a representative of a crime victims' organization serving as a member on the Criminal Justice Services Board, see § 9.1-108 .
Editor's note. - Acts 2001, c. 410, cl. 2, provides: "That the provisions of this act shall not be construed so as to require the installation of permanent two-way closed-circuit television equipment in any courtroom in the Commonwealth."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 1999 amendments. - The 1999 amendment by c. 668, in subdivision 5 c, substituted "was fourteen" for "is twelve," and inserted "on the date of the offense and is sixteen or under at the time of the trial."
The 1999 amendment by c. 702 added the second paragraph in subsection A.
The 1999 amendment by c. 844, deleted "unless excluded by the court as a material witness" in subsection A 4 b, and substituted "clause" for "subdivision" near the end of subsection B.
The 2000 amendments. - The 2000 amendment by c. 272 substituted "this title" for "title 19.2" in subdivisions A 2 a and A 2 c; and in subsection B, inserted "sibling" twice.
The 2000 amendment by c. 827 substituted "this title" for "title 19.2" in subdivisions A 2 a and A 2 c; added present subdivision A 3 c; and redesignated former subdivisions A 3 c and A 3 d as present subdivisions A 3 d and A 3 e, respectively.
The 2001 amendments. - The 2001 amendment by c. 410, in subdivision A 5 c, inserted "and witnesses," and inserted "or a witness to the offense is fourteen years of age or younger at the time of the trial, that."
The 2001 amendment by cc. 530 and 549 are virtually identical, and added subdivision A 4 d, and deleted "of this subsection" at the end of subsection B. Chapter 549 includes the phrase "failure to appear at trial when subpoenaed" near the end of the first paragraph of subdivision A 4 d, which phrase does not occur in c. 530.
The 2002 amendments. - The 2002 amendment by c. 310 substituted " § 18.2-57 " for " §§ 18.2-57 , 18.2-57.1 " in subsection B.
The 2002 amendments by cc. 810 and 818 are identical, and added "including verification that the standardized form listing the specific rights afforded to crime victims has been received by the victim" at the end of the first paragraph of subsection A; and added the second sentence in subdivision A 3 e.
The 2003 amendments. - The 2003 amendment by c. 103, in the second paragraph of subsection A, in the first sentence, substituted "As soon as practicable after identifying a victim of" for "Following," inserted "the investigating" preceding "law-enforcement" and substituted "agency" for "personnel" thereafter, and at the end of the last sentence, inserted "the name, address and telephone number of the office of the attorney for the Commonwealth, and the name, address and telephone number of the investigating law-enforcement agency"; inserted "and that does not place the victim in close proximity to the defendant or the defendant's family" at the end of subdivision A 1 b; in clause (ii) of the first sentence of paragraph A 4 d, inserted "about the disposition of the case, including the victim's views concerning dismissal, pleas," and inserted "and sentencing" at the end; in subdivision A 5 c, twice substituted "14" for "fourteen," and substituted "16" for "sixteen"; and added subdivision A 6.
The 2003 amendments by cc. 751 and 764 are virtually identical, and substituted "14" for "fourteen" twice and "16" for "sixteen" in subdivision A 5 c; and in subsection B, deleted "or" at the end of clause (iii), inserted present clause (iv), and redesignated former clause (iv) as present clause (v).
The 2006 amendments. - The 2006 amendment by c. 241, in subdivision A 3 d, inserted the clause (i) designation and "or (ii) when an accused is released on bail."
The 2007 amendments. - The 2007 amendments by cc. 94 and 109 are identical, and added the last sentence in subdivision A 3 d.
The 2007 amendment by c. 423 in the second paragraph of subsection A, deleted "and" preceding "the name," and inserted "and a summary of the victim's rights under § 40.1-28.7:2 " at the end.
The 2014 amendments. - The 2014 amendment by c. 230, in subsection B, inserted "(a)," substituted "(b)" for "or of," inserted "a violation of a protective order in violation of § 16.1-253.2 or 18.2-60.4 " and "or (c) a delinquent act that would be a felony or a misdemeanor violation of any offense enumerated in clause (b) if committed by an adult," deleted "of this section" following "subdivision A 4," and made minor stylistic changes.
The 2017 amendments. - The 2017 amendment by c. 535 added subdivision A 3 f.
The 2018 amendments. - The 2018 amendments by cc. 47 and 83 are identical, and substituted "addresses, any telephone numbers, and email addresses" for "addresses and telephone numbers" in subdivision A 5 a.
The 2019 amendments. - The 2019 amendment by c. 216 added subdivision A 3 g; and made stylistic changes.
The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted " § 19.2-295.3 " for " §§ 19.2-264.4 and 19.2-295.3 " in subdivision A 4 c.
Law review. - For 1995 survey of legal issues involving children, see 29 U. Rich. L. Rev. 1117 (1995).
For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).
For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).
For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).
For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).
For annual survey of Virginia labor and employment law, see 40 U. Rich. L. Rev. 241 (2005).
For article, "Prosecutorial Power: A Transnational Symposium: The Worldwide Accountability Deficit for Prosecutors," see 67 Wash & Lee L. Rev. 1587 (2010).
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 38, 80; 20 M.J. Witnesses, § 35.
CASE NOTES
The statutes do not limit evidence of victim impact to that received from the victim's family members; rather, the circumstances of the individual case will dictate what evidence will be necessary and relevant, and from what sources it may be drawn. Beck v. Commonwealth, 253 Va. 373 , 484 S.E.2d 898, cert. denied, 522 U.S. 1018, 118 S. Ct. 608, 139 L. Ed. 2d 495 (1997).
Relevant statutes, including this section, did not limit the evidence of victim impact to that received from the victim's family members since the circumstance of the individual case dictated what victim impact evidence would be relevant and necessary, and from what source it would be drawn; thus, victim impact statements from the victim's cousin and fiance were admissible at sentencing phase on defendant's capital murder conviction. Thomas v. Commonwealth, 263 Va. 216 , 559 S.E.2d 652, 2002 Va. LEXIS 27 (2002).
Former girlfriend's psychological harm was the "direct result" of the felonies committed by defendant during a home intrusion, and the victim impact statement of the girlfriend was properly included in the pre-sentence report under subsection B of § 19.2-11.01 and § 19.2-299.1 as the goal of the home intrusion of the girlfriend's sibling was to force the girlfriend to come to that home and bring their child so that defendant could "blow her head off" with a shotgun defendant possessed; the girlfriend clearly suffered "psychological" harm as she "was scared to death" and "was waiting in horror to hear what happened" to her sibling and the sibling's family. Myers v. Commonwealth, No. 0986-07-3, 2008 Va. App. LEXIS 385 (Aug. 12, 2008).
Family member statements were properly admitted since the murder was determined to be a direct consequence of the conspiracy to commit robbery. - Since it could not be said that the trial court was plainly wrong when it determined that a murder was a direct consequence of a conspiracy to commit a robbery, the victim impact testimony was properly admitted even though defendant was acquitted of the murder. Furthermore, the admissibility of the victim impact testimony was relevant and within the sound discretion of the trial court even if the witnesses were not deemed "victims" under subsection B of § 19.2-11.01 . Rock v. Commonwealth, 45 Va. App. 254, 610 S.E.2d 314, 2005 Va. App. LEXIS 107 (2005).
Relevant evidence not limited by statute. - There is no sound reason why relevant victim impact testimony that may be considered by a jury in a capital case should not likewise be considered in a noncapital case, §§ 19.2-295.3 and 19.2-11.01 (B) do not limit the admission of relevant evidence. Rock v. Commonwealth, 45 Va. App. 254, 610 S.E.2d 314, 2005 Va. App. LEXIS 107 (2005).
No abuse of discretion in allowing victim witness to stay in courtroom. - Circuit court did not abuse its discretion under § 19.2-265.01 by allowing a murder victim's son, who was a victim within the meaning of subsection B of § 19.2-11.01 , to remain in the courtroom after he testified during the guilt phase of the trial because the circuit court correctly concluded that the victim's son did not learn anything while he was present in the court that would have changed or affected his victim impact testimony during the penalty phase, and, thus, defendant was not prejudiced by the fact that the son testified during the penalty phase after having heard much of the testimony during the guilt phase. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).
Because defendant provided no specific reason for finding that a victim witness's presence in the courtroom during the testimony of other witnesses would impair the fairness of the trial, the trial court did not abuse its discretion by allowing the victim witness to remain in the courtroom. Hernandez-Guerrero v. Commonwealth, 46 Va. App. 366, 617 S.E.2d 410, 2005 Va. App. LEXIS 311 (2005).
Circuit court properly found a probationer in violation of his probation, as testimony from a victim-witness in a city prosecution, which was underlying basis for the issuance of a capias in the revocation matter, was relevant; and further, that witness was exempt from sequestration, as she could not have shaped her testimony to correspond to the contents of the probationer's letter to the judge or the testimony of the probation officer. Osborne v. Commonwealth, No. 2358-04-3, 2005 Va. App. LEXIS 376 (Oct. 4, 2005).
Relevance of victim impact testimony in capital case. - Trial court did not err in refusing to allow defendant to call the father of one of the decedents as a witness to testify about remarks attributed to him by the news media to the effect that as a Christian he could not hope that jurors imposed the death penalty because the testimony did not fall within the scope of victim impact testimony authorized under § 19.2-299.1 and witness opinion on what the jury should decide as the appropriate sentence in a given case was not admissible. Juniper v. Commonwealth, 271 Va. 362 , 626 S.E.2d 383, 2006 Va. LEXIS 29 (2006), habeas corpus proceeding, 2010 Va. Cir. LEXIS 201 (2010); habeas corpus dismissed, 281 Va. 277 , 707 S.E.2d 290, 2011 Va. LEXIS 61 (2011).
With regard to defendant's convictions on two capital murder counts and the imposition of two death sentences against him, the trial court did not abuse its discretion in refusing to grant a mistrial or bar subsequent testimony from the sister of one of the murder/rape victims because no reasonable juror could conclude from the sister's testimony that she was attempting to implicate defendant in her own rape that occurred years prior in any way and the trial judge promptly, explicitly and carefully instructed the jury to disregard the inappropriate testimony that the sister made that her rapist "got away with it." Prieto v. Commonwealth, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012), cert. denied, 133 S. Ct. 244, 2012 U.S. LEXIS 6641, 184 L. Ed. 2d 129 (U.S. 2012).
Evidence admissible during Commonwealth's case-in-chief. - Pursuant to § 19.2-295.3 , the victim was properly permitted to testify during the Commonwealth's case-in-chief of the sentencing phase of defendant's rape trial; the victim had a qualified, statutorily protected right to be heard at sentencing, and it was within the trial judge's ultimate discretion to decide when the victim would be heard on motion of the Commonwealth. Washington v. Commonwealth, 48 Va. App. 486, 632 S.E.2d 625, 2006 Va. App. LEXIS 349 (2006).
Presence of victim held not prejudicial. - Under version of §§ 19.2-11.01 and 19.2-265.01 in effect prior to July 1, 1999, defendant failed to show any prejudice resulting from the trial court's decision permitting rape victim to remain in the courtroom during malicious wounding victim's testimony; while rape victim heard malicious wounding victim's testimony, his testimony addressed the malicious wounding charge and concerned his actions prior to the time when defendant and rape victim went into the bedroom; rape victim's testimony was not influenced by malicious wounding victim's, since her testimony did not mirror his testimony; defendant's defense to the rape charge was that rape victim consented to the intercourse; and malicious wounding victim's testimony did not address the issue of whether she consented to the intercourse. Hague v. Commonwealth, No. 1274-99-2, 2000 Va. App. LEXIS 390 (Ct. of Appeals May 23, 2000).
CIRCUIT COURT OPINIONS
Victim's right of advance notification. - Dismissal of case based on non-appearance of victim, after the Attorney for the Commonwealth of Virginia determined not to participate in the prosecution, was inappropriate when the victim was never notified of the trial date by the Commonwealth's Attorney because the victim was not required to specifically request advance notification of judicial proceedings and the Commonwealth's Attorney was required to provide the victim advance notification as the victim provided the victim's name, address, and phone number to the police department. Defendant's Motion to Dismiss v. Chastain,, 2021 Va. Cir. LEXIS 16 (Fairfax County Jan. 29, 2021).
OPINIONS OF THE ATTORNEY GENERAL
Computerized system to notify crime victims could not be used for inmates who were juveniles when crimes were committed. - Because the statutes relating to rights of victims involved in juvenile matters contained in Chapter 11 of Title 16.1 control over the general statutes relating to rights of victims as set forth in the Crime Victim and Witness Rights Act, a computerized system by which registered crime victims would be updated with information regarding future court dates, transfers, and releases of active inmates incarcerated in the city jail could not be used to provide information to victims in cases where the inmate was a juvenile when the crime was committed. See opinion of Attorney General to The Honorable Robert J. McCabe, Sheriff for the City of Norfolk, 01-058 (12/17/01).
§ 19.2-11.02. Prohibiting inquiry into the immigration status of certain victims or witnesses of crime.
- No law-enforcement officer, as defined in § 9.1-101 , shall, in connection with the report, investigation, or prosecution of a criminal violation of state or local law, inquire into the immigration status of any person who (i) reports that he is a victim of the crime or is the parent or guardian of a minor victim of the crime or (ii) is a witness in the investigation of the crime or the parent or guardian of a minor witness to the crime.
- Nothing in this section shall prohibit a law-enforcement officer from inquiring into the immigration status of the parent or guardian of a minor victim if such parent or guardian has been arrested for, has been charged with, or is being investigated for a crime against the minor victim.
- Nothing in this section shall affect the enforcement or implementation of § 18.2-59 , subdivision 10 of § 18.2-308.09 , or subdivision B 1 of § 18.2-308.2:2 , or prohibit a law-enforcement officer from inquiring into a person's immigration status to enforce or implement such sections. (2020, c. 273.)
§ 19.2-11.1. Establishment of crime victim-witness assistance programs; funding; minimum standards.
Any local governmental body which establishes, operates and maintains a crime victim and witness assistance program, whose funding is provided in whole or part by grants administered by the Department of Criminal Justice Services pursuant to § 9.1-104 , shall operate the program in accordance with guidelines which shall be established by the Department to implement the provisions of this chapter and other applicable laws establishing victims' rights.
(1988, c. 542; 1994, cc. 361, 598; 1995, c. 687; 1996, c. 545.)
Editor's note. - At the direction of the Code Commission, Acts 1994, c. 361, which amended this section, was not given effect due to a conflict. The amendment added a subdivision 10 similar to that added by Acts 1994, c. 598. The subdivisions were subsequently deleted by Acts 1995, c. 687, which enacted § 19.2-11.01 .
§ 19.2-11.2. Crime victim's right to nondisclosure of certain information; exceptions; testimonial privilege.
Upon request of any witness in a criminal prosecution under § 18.2-46.2 , 18.2-46.3 , or 18.2-248 or of any violent felony as defined by subsection C of § 17.1-805 , or any crime victim, neither a law-enforcement agency, the attorney for the Commonwealth, the counsel for a defendant, a court nor the Department of Corrections, nor any employee of any of them, may disclose, except among themselves, the residential address, any telephone number, email address, or place of employment of the witness or victim or a member of the witness' or victim's family, except to the extent that disclosure is (i) of the site of the crime, (ii) required by law or Rules of the Supreme Court, (iii) necessary for law-enforcement purposes or preparation for court proceedings, or (iv) permitted by the court for good cause.
Except with the written consent of the victim of any crime involving any sexual assault, sexual abuse, or family abuse or the victim's next of kin if the victim is a minor and the victim's death results from any crime, a law-enforcement agency may not disclose to the public information that directly or indirectly identifies the victim of such crime except to the extent that disclosure is (a) of the site of the crime, (b) required by law, (c) necessary for law-enforcement purposes, or (d) permitted by the court for good cause. In addition, at the request of the victim to the Court of Appeals of Virginia or the Supreme Court of Virginia hearing, on or after July 1, 2007, the case of a crime involving any sexual assault or sexual abuse, no appellate decision shall contain the first or last name of the victim.
Nothing herein shall limit the right to examine witnesses in a court of law or otherwise affect the conduct of any criminal proceeding.
(1994, cc. 845, 931; 2002, cc. 810, 818; 2005, cc. 764, 813; 2007, c. 503; 2014, c. 744; 2017, c. 500; 2018, cc. 47, 83.)
Cross references. - As to limitations on the release of criminal incident information, see § 2.2-3706.1 .
As to nondisclosure of victim's name in the cold case searchable database, see § 52-34.16 .
Editor's note. - Acts 2005, cc. 764 and 813, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and substituted "sexual abuse or family abuse" for "or abuse" in the second paragraph.
The 2005 amendments. - The 2005 amendments by cc. 764 and 813 are identical, and in the first paragraph, inserted "witness in a criminal prosecution under § 18.2-46.2 or 18.2-46.3 , or any," "the counsel for a defendant," "witness or" in two places, and "or preparation for court proceedings."
The 2007 amendments. - The 2007 amendment by c. 503 added the last sentence in the second paragraph.
The 2014 amendments. - The 2014 amendment by c. 744 in the first paragraph inserted "or 18.2-248 or of any violent felony as defined by subsection C of § 17.1-805 ."
The 2017 amendments. - The 2017 amendment by c. 500, in the second paragraph, inserted "of any crime involving any sexual assault, sexual abuse, or family abuse or the victim's next of kin if the victim is a minor and the victim's death results from any crime," substituted "of such crime" for "of a crime involving any sexual assault, sexual abuse or family abuse," and redesignated clauses (i) through (iv) as clauses (a) through (d).
The 2018 amendments. - The 2018 amendments by cc. 47 and 83 are identical, and substituted "any telephone number, email address" for "telephone number" in the first paragraph.
§ 19.2-11.3. Virginia Crime Victim-Witness Fund.
There is hereby established the Virginia Crime Victim-Witness Fund as a special nonreverting fund to be administered by the Department of Criminal Justice Services to support victim and witness services that meet the minimum standards prescribed for such programs under § 19.2-11.1 . A portion of the sum collected pursuant to §§ 16.1-69.48:1, 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , and 17.1-275.9 , as specified in these sections, shall be deposited into the state treasury to the credit of this Fund. The Fund shall be distributed according to grant procedures adopted pursuant to § 9.1-104 and shall be established on the books of the Comptroller. Any funds remaining in such Fund at the end of the biennium shall not revert to the general fund, but shall remain in the Fund. Interest earned on the Fund shall be credited to the Fund.
(1995, c. 371; 2002, c. 831.)
The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, substituted "A portion of the sum collected pursuant to §§ 16.1-69.48:1, 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , and 17.1-275.9 , as specified in these sections" for "Three dollars collected pursuant to subdivisions A 10 and A 11 of § 17.1-275 and to subdivision A 1 of § 16.1-69.48:1" in the second sentence.
§ 19.2-11.4. Establishment of victim-offender reconciliation program.
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Any Crime Victim and Witness Assistance Program may establish a victim-offender reconciliation program to provide an opportunity after conviction for a victim, at his request and upon the subsequent agreement of the offender, to:
- Meet with the offender in a safe, controlled environment in accordance with the policies established pursuant to subsection B of § 53.1-30 ;
- Give to the offender, either orally or in writing, a summary of the financial, emotional, and physical effects of the offense on the victim or the victim's family; and
- Discuss a proposed restitution agreement which may be submitted for consideration by the sentencing court for damages incurred by the victim as a result of the offense.
- If the victim chooses to participate in a victim-offender reconciliation program under this section, the victim shall execute a waiver releasing the Crime Victim and Witness Assistance Program, attorney for the offender and the attorney for the Commonwealth from civil and criminal liability for actions taken by the victim or offender as a result of participation by the victim or the offender in a victim-offender reconciliation program.
- A victim shall not be required to participate in a victim-offender reconciliation program under this section.
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The failure of any person to participate in a reconciliation program pursuant to this section shall not be used directly or indirectly at sentencing.
(1995, c. 628; 2010, c. 844.)
The number of this section was assigned by the Code Commission, the section number in the 1995 act having been § 19.2-11.3 .
The 2010 amendments. - The 2010 amendment by c. 844 added "in accordance with the policies established pursuant to subsection B of § 53.1-30 " in subdivision A 1.
Chapter 1.2. Physical Evidence Recovery Kits.
Sec.
§ 19.2-11.5. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Anonymous physical evidence recovery kit" means a physical evidence recovery kit that is collected from a victim of sexual assault through a forensic medical examination where the victim elects, at the time of the examination, not to report the sexual assault offense to a law-enforcement agency.
"Department" means the Virginia Department of Forensic Science.
"Division" means the Division of Consolidated Laboratory Services of the Virginia Department of General Services.
"Health care provider" means any hospital, clinic, or other medical facility that provides forensic medical examinations to victims of sexual assault.
"Law-enforcement agency" means the state or local law-enforcement agency with the primary responsibility for investigating an alleged sexual assault offense case and includes the employees of that agency.
"Physical evidence recovery kit" means any evidence collection kit supplied by the Department to health care providers for use in collecting evidence from victims of sexual assault during forensic medical examinations or to the Office of the Chief Medical Examiner for use during death investigations to collect evidence from decedents who may be victims of sexual assault.
"Sexual assault offense" means a violation or attempted violation of any offense enumerated in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 or of any offense specified in § 18.2-361 , 18.2-370 , or 18.2-370 .1.
"Victim of sexual assault" means any person who undergoes a forensic medical examination for the collection of a physical evidence recovery kit connected to a sexual assault offense.
(2016, cc. 332, 698.)
Cross references. - As to services for survivors of sexual assault, generally, see § 32.1-162.15:2 et seq.
§ 19.2-11.6. Anonymous physical evidence recovery kits.
- When a victim of sexual assault who undergoes a forensic medical examination elects not to report the offense to law enforcement, the health care provider shall inform the victim that the physical evidence recovery kit shall be forwarded to the Division for storage as an anonymous physical evidence recovery kit. The health care provider shall further inform the victim of the length of time the anonymous physical evidence recovery kit will be stored by the Division, the victim's right to object to the destruction of the anonymous physical evidence recovery kit, and how the victim can have the anonymous physical evidence recovery kit released to a law-enforcement agency at a later date. The health care provider shall forward the anonymous physical evidence recovery kit to the Division in accordance with the policies and procedures established by the Division.
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The Division shall store any anonymous physical evidence recovery kit received for a minimum of two years. The Division shall store the anonymous physical evidence recovery kit for an additional period of 10 years following the receipt of a written objection to the destruction of the anonymous physical evidence recovery kit from the victim. After the initial two years or any additional 10-year storage period, the Division, in the absence of the receipt of a written objection from the victim in the most recent 10-year period, may destroy the anonymous physical evidence recovery kit or, in its discretion or upon request of the victim or the law-enforcement agency, may elect to retain the anonymous physical evidence recovery kit for a longer period of time. Upon notification from either the law-enforcement agency or the attorney for the Commonwealth that the victim has elected to report the offense to the law-enforcement agency, the Division shall release the anonymous physical evidence recovery kit to the law-enforcement agency.
(2016, cc. 332, 698; 2017, c. 535.)
Cross references. - As to storage, retention, and dissemination of photographic documentation by, and submission of evidence by, treatment hospitals, see §§ 32.1-162.15:8 , 32.1-162.15:9 .
The 2017 amendments. - The 2017 amendment by c. 535 inserted "the victim's right to object to the destruction of the anonymous physical evidence recovery kit" in the second sentence; in subsection B, inserted the second sentence, substituted "After the initial two years or any additional 10-year storage period, the Division, in the absence of the receipt of a written objection from the victim in the most recent 10-year period" for "After two years, the Division" in the third sentence.
§ 19.2-11.7. Law enforcement taking possession of physical evidence recovery kits.
- A health care provider that has collected a physical evidence recovery kit from a victim of sexual assault who has elected to report the offense shall forthwith notify the law-enforcement agency that such kit has been collected.
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A law-enforcement agency that receives notice from a health care provider that a physical evidence recovery kit has been collected shall forthwith take possession of the physical evidence recovery kit.
(2016, cc. 332, 698.)
§ 19.2-11.8. Submission of physical evidence recovery kits to the Department.
- A law-enforcement agency that receives a physical evidence recovery kit shall submit the physical evidence recovery kit to the Department for analysis within 60 days of receipt, except under the following circumstances: (i) it is an anonymous physical evidence recovery kit that shall be forwarded to the Division for storage; (ii) the physical evidence recovery kit was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted; (iii) the physical evidence recovery kit is connected to an offense that occurred outside of the Commonwealth; (iv) the physical evidence recovery kit was determined by the law-enforcement agency not to be connected to a criminal offense; or (v) another law-enforcement agency has taken over responsibility for the investigation related to the physical evidence recovery kit.
- Upon completion of analysis, the Department shall return the physical evidence recovery kit to the submitting law-enforcement agency. Upon receipt of the physical evidence recovery kit from the Department, the law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time of collection, whichever is longer. The law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years following the receipt of a written objection to the destruction of the kit from the victim. After the mandatory retention period or any additional 10-year storage period has lapsed, the law-enforcement agency shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the physical evidence recovery kit no less than 60 days prior to the intended date of such destruction. In the absence of a response from the victim, or with the consent of the victim, the law-enforcement agency may destroy the physical evidence recovery kit or, in its discretion, may elect to retain the physical evidence recovery kit for a longer period of time.
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The DNA profiles developed from physical evidence recovery kits submitted to the Department for analysis pursuant to this section shall be uploaded into any local, state, or national DNA data bank only if eligible as determined by Department procedures and in accordance with state and federal law.
(2016, cc. 332, 698; 2017, c. 535; 2018, c. 398.)
The 2017 amendments. - The 2017 amendment by c. 535 in subsection B, substituted "10 years after" for "two years after" in the second sentence, inserted the third sentence, added "shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the physical evidence recovery kit no less than 60 days prior to the intended date of such destruction" in the fourth sentence, and inserted "In the absence of a response from the victim, or with the consent of the victim, the law-enforcement agency" in the last sentence.
The 2018 amendments. - The 2018 amendment by c. 398 added clause (v) in subsection A and made related changes.
§ 19.2-11.9. Lack of compliance with procedures.
The failure of a law-enforcement agency to take possession of a physical evidence recovery kit as provided in this chapter or to submit a physical evidence recovery kit to the Department within the time period prescribed under this chapter does not alter the authority of the law-enforcement agency to take possession of the physical evidence recovery kit or to submit the physical evidence recovery kit to the Department under this chapter or the authority of the Department to accept and analyze the physical evidence recovery kit or to maintain or upload any developed DNA profiles from the physical evidence recovery kit into any local, state, or national DNA data bank if eligible as determined by Department procedures and in accordance with state and federal law.
A person accused or convicted of committing a crime against a sexual assault victim has no standing to object to any failure to comply with the requirements of this chapter, and the failure to comply with the requirements of this chapter is not grounds for challenging the admissibility of the evidence or setting aside the conviction or sentence.
(2016, cc. 332, 698.)
§ 19.2-11.10. Expungement of DNA profile.
If the Department receives written confirmation from a law-enforcement agency or attorney for the Commonwealth that a DNA profile that has been uploaded pursuant to this chapter into any local, state, or national DNA data bank was determined not to be connected to a criminal offense or that the DNA profile is of an individual who is not the putative perpetrator, the Department shall expunge the DNA profile from the DNA data bank.
The detention, arrest, or conviction of a person based upon a data bank match or data bank information is not invalidated if it is determined that the sample was obtained, placed, or retained in the data bank in good faith pursuant to this chapter, and evidence based upon or derived from the DNA record shall not be excluded by a court.
(2016, cc. 332, 698.)
§ 19.2-11.11. Victim's right to notification of scientific analysis information.
- In addition to the rights provided under Chapter 1.1 (§ 19.2-11.01 et seq.), a victim of sexual assault, a parent or guardian of a victim of a sexual assault who was a minor at the time of the offense, or the next of kin of a deceased victim of sexual assault shall have the right to request and receive information from the law-enforcement agency regarding (i) the submission of any physical evidence recovery kit for forensic analysis that was collected from the victim during the investigation of the offense; (ii) the status of any analysis being performed on any evidence that was collected during the investigation of the offense; (iii) the results of any analysis; and (iv) the time frame for how long the kit will be held in storage and the victim's rights regarding such storage, unless disclosing this information would interfere with the investigation or prosecution of the offense, in which case the victim, parent, guardian, or next of kin shall be informed of the estimated date on which the information may be disclosed, if known.
- In the case of a physical evidence recovery kit that was received by a law-enforcement agency prior to July 1, 2016, and that has subsequently been submitted for analysis, the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim shall be notified by the law-enforcement agency of the completion of the analysis and shall, upon request, receive information from the law-enforcement agency regarding the results of any analysis, unless disclosing this information would interfere with the investigation or prosecution of the offense, in which case the victim, parent, guardian, or next of kin shall be informed of the estimated date on which the information may be disclosed, if known. A good faith attempt to locate the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim shall be made if a current address for the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim is unavailable.
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The victim, parent, guardian, or next of kin who requests to be notified under subsection A shall provide a current address and telephone number to the attorney for the Commonwealth and to the law-enforcement agency that is investigating the offense and keep such information updated.
The victim, parent, guardian, or next of kin who requests to be notified under subsection B may provide a current address and telephone number to the attorney for the Commonwealth and to the law-enforcement agency that is investigating the offense and keep such information updated.
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Nothing contained in this section shall require a law-enforcement agency to disclose any information regarding the results of any analysis to a parent or guardian of a minor victim or to the next of kin of a deceased victim if such parent, guardian, or next of kin is the alleged perpetrator of the offense.
(2016, cc. 332, 698; 2017, cc. 535, 672.)
The 2017 amendments. - The 2017 amendment by c. 535 inserted "(iv) the time frame for how long the kit will be held in storage and the victim's rights regarding such storage" and made related changes.
The 2017 amendment by c. 672, in subsection A, substituted "the next of kin" for "close relative"; added subsection B; in subsection C, substituted "shall" for "must" and added the last paragraph; added subsection D; and made stylistic changes.
§ 19.2-11.12. Costs of physical evidence recovery kits.
No victim of sexual assault shall be charged for the cost of collecting or storing a physical evidence recovery kit or an anonymous physical evidence recovery kit.
(2017, c. 535.)
§ 19.2-11.13. Physical Evidence Recovery Kit Tracking System.
- The Department shall maintain a statewide electronic tracking system for physical evidence recovery kits. The Physical Evidence Recovery Kit Tracking System (the System) will utilize an assigned unique identification number to track each physical evidence recovery kit from its distribution as an uncollected kit to the health care provider through to its destruction. The Department shall ensure that each physical evidence recovery kit is assigned a unique identification number.
- The Department shall provide access to the System to health care providers, law-enforcement agencies, the Division, and the Office of the Chief Medical Examiner. All such entities and agencies shall be required to enter the identification number and other information pertaining to the kits in the System as required by the Department and to update the status and location of each kit in the System whenever such status or location changes.
- The health care provider shall inform the victim of sexual assault of the unique identification number assigned to the physical evidence recovery kit utilized by the health care provider during the forensic medical examination and provide the victim with information regarding the System.
- Records entered into the System are confidential and are not subject to disclosure under the Freedom of Information Act (§ 2.2-3700 et seq.). (2019, c. 473.)
Editor's note. - Acts 2019, c. 473, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2020."
Acts 2019, c. 473, cl. 3 provides: "That information about the use of the Physical Evidence Recovery Kit Tracking System shall be reported in the Forensic Science Board's annual report that is submitted by November 1 of each year in accordance with subsection B of § 9.1-1110 of the Code of Virginia."
Law review. - For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).
Chapter 2. Conservators of the Peace and Special Policemen.
Appointment.
Powers and Duties.
Appeals.
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 4; 2C M.J. Bail and Recognizance, § 8; 3A M.J. Breach of the Peace, § 6; 4C M.J. Constitutional Law, § 141; 14A M.J. Notary Public, § 3.
Article 1. Appointment.
§ 19.2-12. Who are conservators of the peace.
Every judge and attorney for the Commonwealth throughout the Commonwealth and every magistrate within the geographical area for which he is appointed or elected, shall be a conservator of the peace. In addition, every commissioner in chancery, while sitting as such commissioner; any special agent or law-enforcement officer of the United States Department of Justice, National Marine Fisheries Service of the United States Department of Commerce, Department of Treasury, Department of Agriculture, Department of Defense, Department of State, Office of the Inspector General of the Department of Transportation, Department of Homeland Security, and Department of Interior; any inspector, law-enforcement official or police personnel of the United States Postal Service; any United States marshal or deputy United States marshal whose duties involve the enforcement of the criminal laws of the United States; any officer of the Virginia Marine Police; any criminal investigator of the Department of Professional and Occupational Regulation, who meets the minimum law-enforcement training requirements established by the Department of Criminal Justice Services for in-service training; any criminal investigator of the United States Department of Labor; any special agent of the United States Naval Criminal Investigative Service, any special agent of the National Aeronautics and Space Administration, and any sworn municipal park ranger, who has completed all requirements under § 15.2-1706 ; any investigator employed by an attorney for the Commonwealth, who within 10 years immediately prior to being employed by the attorney for the Commonwealth was an active law-enforcement officer as defined in § 9.1-101 in the Commonwealth and retired or resigned from his position as a law-enforcement officer in good standing, shall be a conservator of the peace, while engaged in the performance of their official duties.
(Code 1950, § 19.1-20; 1960, c. 366; 1968, c. 639; 1972, c. 549; 1975, c. 495; 1978, c. 697; 1981, cc. 572, 587; 1990, c. 558; 1991, cc. 74, 338; 1994, cc. 375, 569, 626; 1997, c. 34; 2001, cc. 3, 31; 2002, cc. 86, 605, 789; 2004, c. 1009; 2005, c. 372; 2006, c. 88; 2007, c. 224; 2015, cc. 75, 126; 2017, c. 674.)
Cross references. - As to inclusion of special conservators of the peace or special policemen in definition of "Criminal Justice Agency" under Chapter 9.1, see § 9.1-101 .
The 2001 amendments. - The 2001 amendment by cc. 3 and 31 are identical, and inserted "Department of Defense" following "Department of Agriculture," deleted "and" following "Postal Inspection Service," and made minor punctuation changes.
The 2002 amendments. - The 2002 amendment by c. 86 inserted "Office of the Inspector General of the Department of Transportation" in the second sentence.
The 2002 amendments. - The 2002 amendment by c. 605, effective July 1, 2003, inserted "any criminal investigator of the Department of Professional and Occupational Regulation. . . for in-service training" in the second sentence.
The 2002 amendment by c. 789 substituted "Virginia Marine Police" for "Virginia Marine Patrol" in the second sentence.
The 2004 amendments. - The 2004 amendment by c. 1009 inserted "Department of Homeland Security."
The 2005 amendments. - The 2005 amendment by c. 372 inserted "and attorney for the Commonwealth" in the first sentence.
The 2006 amendments. - The 2006 amendment by c. 88, in the last sentence, inserted "and any special agent of the National Aeronautics and Space Administration" and made a related change.
The 2007 amendments. - The 2007 amendment by c. 224 inserted "and any sworn municipal park ranger, who has completed all requirements under § 15.2-1706 " near the end of the section, and made a related change.
The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and deleted "Inspection" following "United States Postal."
The 2017 amendments. - The 2017 amendment by c. 674 inserted "any investigator employed by an attorney for the Commonwealth, who within 10 years immediately prior to being employed by the attorney for the Commonwealth was an active law-enforcement officer as defined in § 9.1-101 in the Commonwealth and retired or resigned from his position as a law-enforcement officer in good standing" in the last sentence.
CASE NOTES
Commissioner in chancery is conservator of peace only when performing duties of office within his county or corporation. Parker v. Commonwealth, 215 Va. 281 , 208 S.E.2d 757 (1974).
Application of definition to § 18.2-308.1 . - In interpreting § 18.2-308.1 , which contains an exemption from the prohibition on carrying weapons on school grounds for conservators of the peace, the court is bound by the statutory definition of "conservator of the peace" adopted by the legislature and codified in this section and is not permitted to ignore or rewrite the statute in favor of a broader common-law definition. Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374, 2000 Va. App. LEXIS 838 (2000).
CIRCUIT COURT OPINIONS
Park ranger. - Park rangers were permitted to exercise the powers of a conservator of the peace when engaged in the performance of their official duties; as a conservator of the peace, a ranger was permitted to make an arrest for a misdemeanor committed in his presence. A ranger's arrest of defendant for driving under the influence based on the ranger's observations of defendant was proper. Commonwealth v. Stickle, 72 Va. Cir. 494, 2007 Va. Cir. LEXIS 154 (Loudoun County 2007).
OPINIONS OF THE ATTORNEY GENERAL
Armed special conservator of the peace for school safety purposes. - Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).
§ 19.2-13. Special conservators of the peace; authority; jurisdiction; registration; liability of employers; penalty; report.
- Upon the submission of an application, which shall include the results of the background investigation conducted pursuant to subsection C, from (i) any sheriff or chief of police of any county, city, or town; (ii) any corporation authorized to do business in the Commonwealth; (iii) the owner, proprietor, or authorized custodian of any place within the Commonwealth; or (iv) any museum owned and managed by the Commonwealth, a circuit court judge of any county or city shall appoint special conservators of the peace who shall serve as such for such length of time as the court may designate, but not exceeding four years under any one appointment, during which time the court shall retain jurisdiction over the appointment order, upon a showing by the applicant of a necessity for the security of property or the peace and presentation of evidence that the person or persons to be appointed as a special conservator of the peace possess a valid registration issued by the Department of Criminal Justice Services in accordance with the provisions of subsection C. Upon an application made pursuant to clause (ii), (iii), or (iv), the court shall, prior to entering the order of appointment, transmit a copy of the application to the local attorney for the Commonwealth and the local sheriff or chief of police who may submit to the court a sworn, written statement indicating whether the order of appointment should be granted. However, a judge may deny the appointment for good cause, and shall state the specific reasons for the denial in writing in the order denying the appointment. A judge also may revoke the appointment order for good cause shown, upon the filing of a sworn petition by the attorney for the Commonwealth, sheriff, or chief of police for any locality in which the special conservator of the peace is authorized to serve or by the Department of Criminal Justice Services. Prior to revocation, a hearing shall be set and the special conservator of the peace shall be given notice and the opportunity to be heard. The judge may temporarily suspend the appointment pending the hearing for good cause shown. A hearing on the petition shall be heard by the court as soon as practicable. If the appointment order is suspended or revoked, the clerk of court shall notify the Department of Criminal Justice Services, the Department of State Police, the applicable local law-enforcement agencies in all cities and counties where the special conservator of the peace is authorized to serve, and the employer of the special conservator of the peace. The order of appointment shall provide that a special conservator of the peace may perform only the duties for which he is qualified by training as established by the Criminal Justice Services Board. The order of appointment shall provide that such duties shall be exercised only within geographical limitations specified by the court, which shall be within the confines of the county, city or town that makes application or on the real property where the corporate applicant is located, or any real property contiguous to such real property, limited, except as provided in subsection F, to the city or county wherein application has been made, and only when such special conservator of the peace is engaged in the performance of his duties as such; however, a court may, in its discretion, specify in the order of appointment additional jurisdictions in which a special conservator of the peace employed by the Shenandoah Valley Regional Airport Commission or the Richmond Metropolitan Transportation Authority may exercise his duties. The order may provide that the special conservator of the peace shall have the authority to make an arrest outside of such geographical limitations if the arrest results from a close pursuit that was initiated when the special conservator of the peace was within the confines of the area wherein he has been authorized to have the powers and authority of a special conservator of the peace; the order shall further delineate a geographical limitation or distance beyond which the special conservator of the peace may not effectuate such an arrest that follows from a close pursuit. The order shall require the special conservator of the peace to comply with the provisions of the United States Constitution and the Constitution of Virginia. The order shall not identify the special conservator of the peace as a law-enforcement officer pursuant to § 9.1-101 . The order may provide, however, that the special conservator of the peace is a "law-enforcement officer" for the purposes of Article 4 (§ 37.2-808 et seq.) of Chapter 8 of Title 37.2 or Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, but such designation shall not qualify the special conservator of the peace as a "qualified law-enforcement officer" or "qualified retired law-enforcement officer" within the meaning of the federal Law Enforcement Officer Safety Act, 18 U.S.C. § 926(B) et seq., and the order of appointment shall specifically state this. The order may also provide that a special conservator of the peace who has completed the minimum training standards established by the Criminal Justice Services Board, has the authority to affect arrests, using up to the same amount of force as would be allowed to a law-enforcement officer employed by the Commonwealth or any of its political subdivisions when making a lawful arrest. The order shall prohibit blue flashing lights, but upon request and for good cause shown may provide that the special conservator of the peace may use flashing lights and sirens on any vehicle used by the special conservator of the peace when he is in the performance of his duties. Prior to granting an application for appointment, the circuit court shall ensure that the applicant has met the registration requirements established by the Criminal Justice Services Board.
- All applications and orders for appointments of special conservators of the peace shall be submitted on forms developed by the Office of the Executive Secretary of the Supreme Court of Virginia in consultation with the Department of Criminal Justice Services and shall specify the duties for which the applicant is qualified. The applications and orders shall specify the geographic limitations consistent with subsection A.
- No person shall seek appointment as a special conservator of the peace from a circuit court judge without possessing a valid registration issued by the Department of Criminal Justice Services, except as provided in this section. Applicants for registration may submit an application on or after January 1, 2004. A temporary registration may be issued in accordance with regulations established by the Criminal Justice Services Board while awaiting the results of a state and national fingerprint search. However, no person shall be issued a valid registration or temporary registration until he has (i) complied with, or been exempted from the compulsory minimum training standards as set forth in this section; (ii) submitted his fingerprints on a form provided by the Department to be used for the conduct of a national criminal records search and a Virginia criminal history records search; (iii) submitted the results of a background investigation, performed by any state or local law-enforcement agency, which may, at its discretion, charge a reasonable fee to the applicant and which shall include a review of the applicant's criminal history records and may include a review of the applicant's school records, employment records, or interviews with persons possessing general knowledge of the applicant's character and fitness for such appointment; and (iv) met all other requirements of this article and Board regulations. No person with a criminal conviction for a misdemeanor involving (a) moral turpitude, (b) assault and battery, (c) damage to real or personal property, (d) controlled substances or imitation controlled substances as defined in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, (e) prohibited sexual behavior as described in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or (f) firearms, or any felony, or who is required to register with the Sex Offender and Crimes Against Minors Registry pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, or who is prohibited from possessing, transporting, or purchasing a firearm shall be eligible for registration or appointment as a special conservator of the peace. A special conservator of the peace shall report if he is arrested for, charged with, or convicted of any misdemeanor or felony offense or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection to the Department of Criminal Justice Services and the chief law-enforcement officer of all localities in which he is authorized to serve within three days of such arrest or of becoming ineligible for registration or appointment as a special conservator of the peace. Any appointment for a special conservator of the peace shall be eligible for suspension and revocation after a hearing pursuant to subsection A if the special conservator of the peace is convicted of any offense listed in this subsection or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection. All appointments for special conservators of the peace shall become void on September 15, 2004, unless they have obtained a valid registration issued by the Department of Criminal Justice Services.
- Each person registered as or seeking registration as a special conservator of the peace shall be covered by evidence of a policy of (i) personal injury liability insurance, as defined in § 38.2-117 ; (ii) property damage liability insurance, as defined in § 38.2-118 ; and (iii) miscellaneous casualty insurance, as defined in subsection B of § 38.2-111 , which includes professional liability insurance that provides coverage for any activity within the scope of the duties of a special conservator of the peace as set forth in this section, in an amount and with coverage for each as fixed by the Board, or self-insurance in an amount and with coverage as fixed by the Board. Any person who is aggrieved by the misconduct of any person registered as a special conservator of the peace and recovers a judgment against the registrant, which is unsatisfied in whole or in part, may bring an action in his own name against the insurance policy of the registrant.
- Effective July 1, 2015, all persons currently appointed or seeking appointment or reappointment as a special conservator of the peace are required to register with the Department of Criminal Justice Services, regardless of any other standing the person may have as a law-enforcement officer or other position requiring registration or licensure by the Department. The employer of any special conservator of the peace shall notify the circuit court, the Department of Criminal Justice Services, the Department of State Police, and the chief law-enforcement officer of all localities in which the special conservator of the peace is authorized to serve within 30 days after the date such individual has left employment and all powers of the special conservator of the peace shall be void. Failure to provide such notification shall be punishable by a fine of $250 plus an additional $50 per day for each day such notice is not provided.
- When the application is made by any sheriff or chief of police, the circuit court shall specify in the order of appointment the name of the applicant authorized under subsection A and the geographic jurisdiction of the special conservator of the peace. Such appointments shall be limited to the city or county wherein application has been made. When the application is made by any corporation authorized to do business in the Commonwealth, any owner, proprietor, or authorized custodian of any place within the Commonwealth, or any museum owned and managed by the Commonwealth, the circuit court shall specify in the order of appointment the name of the applicant authorized under subsection A and the specific real property where the special conservator of the peace is authorized to serve. Such appointments shall be limited to the specific real property within the county, city, or town wherein application has been made. In the case of a corporation or other business, the court appointment may also include, for good cause shown, any real property owned or leased by the corporation or business, including any subsidiaries, in other specifically named cities and counties, but shall provide that the powers of the special conservator of the peace do not extend beyond the boundaries of such real property. The clerk of the appointing circuit court shall transmit to the Department of State Police, the clerk of the circuit court of each locality where the special conservator of the peace is authorized to serve, and the sheriff or chief of police of each such locality a copy of the order of appointment that shall specify the following information: the person's complete name, address, date of birth, social security number, gender, race, height, weight, color of hair, color of eyes, firearm authority or limitation as set forth in subsection G, date of the order, and other information as may be required by the Department of State Police. The Department of State Police shall enter the person's name and other information into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. The Department of State Police may charge a fee not to exceed $10 to cover its costs associated with processing these orders. Each special conservator of the peace so appointed on application shall present his credentials to the chief of police or sheriff or his designee of all jurisdictions where he has conservator powers. If his powers are limited to certain areas of real property owned or leased by a corporation or business, he shall also provide notice of the exact physical addresses of those areas. Each special conservator shall provide to the circuit court a temporary registration letter issued by the Department of Criminal Justice Services to include the results of the background check prior to seeking an appointment by the circuit court. Once the applicant receives the appointment from the circuit court the applicant shall file the appointment order and a copy of the application with the Department of Criminal Justice Services in order to receive his special conservator of the peace registration document. If the court appointment includes any real property owned or leased by the corporation or business in other specifically named cities and counties not within the city or county wherein application has been made, the clerk of the appointing court shall transmit a copy of the order of appointment to (i) the clerk of the circuit court for each jurisdiction where the special conservator of the peace is authorized to serve and (ii) the sheriff or chief of police of each jurisdiction where the special conservator of the peace is authorized to serve. If any such special conservator of the peace is the employee, agent or servant of another, his appointment as special conservator of the peace shall not relieve his employer, principal or master from civil liability to another arising out of any wrongful action or conduct committed by such special conservator of the peace while within the scope of his employment. Effective July 1, 2002, no person employed by a local school board as a school security officer, as defined in § 9.1-101 , shall be eligible for appointment as a conservator for purposes of maintaining safety in a public school in the Commonwealth. All appointments of special conservators of the peace granted to school security officers as defined in § 9.1-101 prior to July 1, 2002 are void.
- The court may limit or prohibit the carrying of weapons by any special conservator of the peace initially appointed on or after July 1, 1996, while the appointee is within the scope of his employment as such.
- The governing body of any locality or the sheriff of a county where no police department has been established may enter into mutual aid agreements with any entity employing special conservators of the peace that is located in such locality for the use of their joint forces and their equipment and materials to maintain peace and good order. Any law-enforcement officer or special conservator of the peace, while performing his duty under any such agreement, shall have the same authority as lawfully conferred on him within his own jurisdiction.
- No special conservator of the peace shall display or use the word "police" on any uniform, badge, credential, or vehicle in the performance of his duties as a special conservator of the peace. Other than special conservators of the peace employed by a state agency, no special conservator of the peace shall use the seal of the Commonwealth on any uniform, badge, credential, or vehicle in the performance of his duties. However, upon request and for good cause shown, the order of appointment may provide that a special conservator of the peace who (i) meets all requirements, including the minimum compulsory training requirements, for law-enforcement officers set forth in Chapter 1 (§ 9.1-100 et seq.) of Title 9.1 and (ii) is employed by the Shenandoah Valley Regional Airport Commission or the Richmond Metropolitan Transportation Authority may use the word "police" on any badge, uniform, or vehicle in the performance of his duties or the seal of the Commonwealth on any badge or credential in the performance of his duties. (Code 1950, § 19.1-28; 1960, c. 366; 1974, cc. 44, 45; 1975, c. 495; 1976, c. 220; 1982, c. 523; 1989, c. 455; 1996, cc. 850, 956; 2001, c. 249; 2002, cc. 605, 836, 868; 2003, c. 922; 2004, c. 401; 2005, c. 498; 2006, c. 290; 2007, cc. 380, 481; 2008, c. 795; 2010, cc. 530, 778, 825; 2013, cc. 105, 122; 2015, cc. 602, 766, 772; 2016, c. 551; 2017, c. 494; 2018, c. 792.)
Cross references. - As to special conservators of the peace, see § 9.1-150.1 et seq.
Editor's note. - Acts 2003, c. 922, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
Acts 2015, cc. 766 and 772, cl. 2 provides: "That the Office of the Executive Secretary of the Supreme Court of Virginia shall establish reasonable judicial training regarding the use of application forms for the appointment of special conservators of the peace and the powers that may be granted in appointment orders to special conservators of the peace."
Acts 2015, cc. 766 and 772, cl. 3 provides: "That any existing special conservator of the peace appointed under a court order in effect on July 1, 2015, has 36 months to comply with the new compulsory, minimum, entry-level training standards and requirements as may be established pursuant to this act following his appointment."
Acts 2018, c. 792, cl. 2 provides: "That special conservators of the peace employed on July 1, 2018, by the Shenandoah Regional Airport Commission or the Richmond Metropolitan Transportation Authority who do not meet all requirements, including the minimum compulsory training requirements, for law-enforcement officers set forth in Chapter 1 ( § 9.1-100 et seq.) of Title 9.1 of the Code of Virginia may, in accordance with the provisions of this act, continue to use the word 'police' on any badge, uniform, or vehicle in the performance of their duties or the seal of the Commonwealth on any badge or credential in the performance of their duties until July 1, 2020."
The 2001 amendments. - The 2001 amendment by c. 249, in the first sentence of subsection A, substituted "a circuit court judge" for "the circuit court," and substituted "his discretion" for "its discretion."
The 2002 amendments. - The 2002 amendment by c. 605, effective July 1, 2003, rewrote the second paragraph of subsection A.
The 2002 amendments by cc. 836 and 868 are identical, and added the last paragraph in subsection A.
The 2003 amendments. - The 2003 amendment by c. 922 rewrote the section.
The 2004 amendments. - The 2004 amendment by c. 401 added the last sentence in subsection B; and in subsection E, in the first paragraph, inserted the present fifth sentence, substituted "temporary registration letter issued by the Department of Criminal Justice Services prior to seeking an appointment by the circuit court" for "photocopy of his conservator identification card" in the present seventh sentence, deleted the former seventh sentence, which read: "The Department of State Police may charge a fee not to exceed $10 to cover its cost associated with processing these orders," and added the last sentence.
The 2005 amendments. - The 2005 amendment by c. 498 deleted "special" following "of any other" in the second sentence of subsection A, in subsection D, deleted "or private police officers" in the first sentence, inserted the present second sentence, inserted "and to those cities and counties wherein the corporate applicant or its subsidiary holds title to real property" to the end of the second sentence in subsection E and made a minor stylistic change.
The 2006 amendments. - The 2006 amendment by c. 290 inserted the fifth sentence in subsection A.
The 2007 amendments. - The 2007 amendments by cc. 380 and 481 are identical, and inserted "except as provided in subsection E," in the second sentence of subsection A; and in subsection E, inserted "business or other applicant" near the end of the first sentence, deleted "and to those cities and counties wherein the corporate applicant or its subsidiary holds title to real property" at the end of the second sentence, added the present third sentence, substituted "all jurisdictions where he has conservator powers" for "the jurisdiction" at the end of the seventh sentence, and added the present eighth sentence.
The 2008 amendments. - The 2008 amendment by c. 795, in subsection A, deleted "and the showing of a necessity for the security of property or the peace" following "within the Commonwealth," substituted "or city shall appoint special" for "or city, in his discretion, may appoint one or more special" and added the language beginning "upon a showing by the applicant" to the end of the first sentence and inserted the second sentence.
The 2010 amendments. - The 2010 amendment by c. 530 inserted "The order may also provide that the special conservator of the peace is authorized to use the seal of the Commonwealth in a badge or other credential of office as the court may deem appropriate." in subsection A.
The 2010 amendments by cc. 778 and 825 are identical, and inserted "or Article 16 ( § 16.1-335 et seq.) of Chapter 11 of Title 16.1" in subsection A.
The 2013 amendments. - The 2013 amendments by cc. 105 and 122 are identical, and near the beginning of the first sentence of subsection A, inserted the clause (i), (ii), and (iii) designators and clause (iv), and made related changes; and in subsection E, substituted "name of the applicant authorized under subsection A and" for "name of the sheriff or chief of police of the applicant county, city, town or the name of the corporation, business or other applicant authorized under subsection A and."
The 2015 amendments. - The 2015 amendment by c. 602 in subsection A, inserted "during which time the court shall retain jurisdiction over the appointment order" in the first sentence and added the third through sixth sentences; and in subsection B, substituted "or (f) firearms, or for" for "(f) firearms, or (g)" in the fifth sentence and added the sixth sentence.
The 2015 amendments by cc. 766 and 772 are identical, and rewrote the section.
The 2016 amendments. - The 2016 amendment by c. 551, in subsection A, substituted "the background investigation conducted pursuant to subsection C" for "a background investigation"; in subsection C, inserted "valid registration," substituted "shall include" for "may include," and inserted "criminal history records and may include a review of the applicant's" in the fourth sentence, inserted "or who is prohibited from possessing, transporting, or purchasing a firearm" in the fifth sentence, inserted "or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection," and "or of becoming ineligible for registration or appointment as a special conservator of the peace" in the sixth sentence, and substituted "this subsection or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection" for "clauses (a) through (f) or of any felony" in the next to last sentence.
The 2017 amendments. - The 2017 amendment by c. 494 substituted "(i) personal injury liability insurance, as defined in § 38.2-117 ; (ii) property damage liability insurance, as defined in § 38.2-118 ; and (iii) miscellaneous casualty insurance, as defined in subsection B of § 38.2-111 , which includes professional liability insurance that provides coverage for any activity within the scope of the duties of a special conservator of the peace as set forth in this section, in an amount and with coverage for each as fixed by the Board" for "liability insurance" in the first sentence of subsection D.
The 2018 amendments. - The 2018 amendment by c. 792 rewrote the second paragraph of subsection A; and added subsection I.
Research References. - Virginia Forms (Matthew Bender). No. 9-4400. Petition and Order for Appointment of Special Conservator of the Peace.
Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.
OPINIONS OF THE ATTORNEY GENERAL
Private police officers. - The term "private police officers" in subsection D of this section refers to the category of officers appointed for the purposes described in subsection A; therefore, private police officers, who constitute special conservators of the peace and meet the training standards established by the Criminal Justice Services Board, are exempt from registration and bonding requirements. See opinion of Attorney General to The Honorable Emmett W. Hanger Jr., Member, Senate of Virginia, 04-059 (9/7/04).
Property owners' association stopping vehicles. - A property owners' association may not compel a vehicle driver to stop, unless done by a local law enforcement agency or by a private security service that is properly licensed by the Department of Criminal Justice Services, and whose employees have also been appointed as conservators of the peace. To enforce traffic laws on privately owned streets, a property owners' association may request the local law enforcement agency to do so, or the local governing body may designate the private streets as "highways" for law enforcement purposes. See opinion of Attorney General to The Honorable Bryce E. Reeves, Member, Senate of Virginia, No. 13-106, 2014 Va. AG LEXIS 28 (8/13/14).
Private police departments. - The 2015 amendment to § 9.1-101 effectively confers law-enforcement authority to employees of authorized private police departments, but only if those employees comply with all applicable requirements of the Department of Criminal Justice Services. See opinion of Attorney General to The Honorable David J. Toscano, Member, House of Delegates, 15-083, 2016 Va. AG LEXIS 22 (9/9/16).
Armed special conservator of the peace for school safety purposes. - Virginia law requires a temporary registration issued by Department of Criminal Justice Services prior to a circuit court order appointing a qualified individual as a special conservator of the peace and also a valid registration after the circuit court enters an order of appointment. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).
Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).
§ 19.2-13.1. Application for special conservator of the peace by locality.
No official or employee of a school board or county, city, or town, its departments, or its agents shall submit an application for the appointment of a special conservator of the peace without attaching a written assessment from the chief law-enforcement officer of the locality stating the need for the appointment and recommending any limitations that should be included in the order of appointment to the application submitted to the court pursuant to subsection A of § 19.2-13 .
(2016, c. 416.)
§ 19.2-14. Conservators of the peace for fairgrounds and cemeteries; bond required.
The superintendent or other person in charge of any fairgrounds or any public or private cemetery shall, for the purpose of maintaining order and enforcing the criminal and police laws of the Commonwealth, or the county or city in which such fairgrounds or cemetery is situated, have all the powers, functions, duties, responsibilities and authority of a conservator of the peace within the fairgrounds or cemetery over which he may have charge and within one-half of a mile around the same.
The provisions of § 19.2-13 relative to the giving of bond and the liability of an employer, principal or master, shall be applicable to every person exercising any powers of a conservator of the peace under this section.
(Code 1950, § 19.1-32; 1960, c. 366; 1975, c. 495.)
§ 19.2-15. When conservator appointed under § 19.2-13 need not be a citizen.
Any such conservator appointed under the provisions of § 19.2-13 whose jurisdiction is limited to the grounds attached to an airport, need not be a citizen of the Commonwealth if the proprietors of such airport shall, before any such conservator shall enter upon the duties of the office, enter into bond with approved surety before the clerk of the circuit court having jurisdiction over such airport in the penalty of $1,000 for each conservator so appointed, with condition for the faithful discharge of his official duties.
(Code 1950, § 19.1-29; 1960, c. 366; 1975, c. 495.)
Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.
§ 19.2-16.
Repealed by Acts 1994, c. 205.
Editor's note. - Acts 1994, c. 205, cl. 2, provides that all commissions or appointments of conservators of the peace pursuant to this section shall be null and void except for appointment of persons currently employed by the Department of Conservation and Recreation. Any Commission or appointment issued pursuant to this section to persons currently employed by the Department of Conservation and Recreation shall continue in full force and effect until it is replaced by a conservation officer commission issued pursuant to § 10.1-115 or until the individual ceases to be employed by the Department.
§ 19.2-17.
Repealed by Acts 1996, c. 850.
Article 2. Powers and Duties.
§ 19.2-18. Powers and duties generally.
Every conservator of the peace shall have authority to arrest without a warrant in such instances as are set out in §§ 19.2-19 and 19.2-81 . Upon making an arrest without a warrant, the conservator of the peace shall proceed in accordance with the provisions of § 19.2-22 or § 19.2-82 as the case may be.
(Code 1950, § 19.1-20; 1960, c. 366; 1968, c. 639; 1972, c. 549; 1975, c. 495.)
Cross references. - For provision appointing directors of state hospitals and other hospital employees as conservators, see § 37.2-426 .
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.05 District Courts. Friend.
CASE NOTES
Conservators of the peace may carry concealed weapons. - By § 19.2-12 , commissioners in chancery are conservators of the peace, and as such may carry concealed weapons, although not at the time acting in the discharge of official duty. Withers v. Commonwealth, 109 Va. 837 , 65 S.E. 16 (1909).
Warrantless arrest of defendant was invalid. - Warrantless arrest of defendant in the hospital at 4:35 p.m. was invalid, where the motor vehicle accident occurred at 3:00 p.m. The officer had no authority without a warrant to arrest the accused except at the scene of the motor vehicle accident for driving under the influence and after his driver's license had been revoked, offenses which were committed not in his presence. Thomas v. Town of Marion, 226 Va. 251 , 308 S.E.2d 120 (1983).
§ 19.2-19. Recognizance to keep the peace; when required.
If any person threatens to kill or injure another or to commit violence or injury against his person or property, or to unlawfully trespass upon his property, he shall be required to give a recognizance to keep the peace for such period not to exceed one year as the court hearing the complaint may determine.
(Code 1950, §§ 19.1-26, 19.1-27; 1960, c. 366; 1975, c. 495; 1978, c. 500.)
CASE NOTES
The power of conservators of the peace to require security from persons for their good behavior and to require a recognizance to keep the peace originated in the common law of England and was crystallized in two ancient English statutes [1 Edw. 3, Stat. 2, c. 16 (1327); 34 Edw. 3, c. 1 (1360)]. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
A proceeding under this section is a quasi-criminal case. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
A proceeding in which security is required to be given for good behavior and to keep the peace is more in the nature of criminal or quasi-criminal, rather than civil, procedure. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
The requirement to give security is in the nature of a conditional fine, and if an accused is unable to provide it he "shall be" committed to jail. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
Peace bond is moneys belonging to State until payor entitled to reimbursement. - A peace bond is in the nature of a conditional fine. As such, and until the condition is satisfied and the payor becomes entitled to reimbursement, the cash is moneys belonging to the State and its embezzlement by a public officer is a violation of § 18.2-112 . Healy v. Commonwealth, 213 Va. 325 , 191 S.E.2d 736 (1972).
§ 19.2-20. Same; complaint and issuance of warrant therefor.
If complaint be made to any magistrate or judge that a person should be required to give a recognizance to keep the peace due to any of the reasons set forth in § 19.2-19 , such magistrate or judge shall examine on oath the complainant, and any witness who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant; and if probable cause is established, such magistrate or judge shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before the district court having appropriate jurisdiction.
(Code 1950, § 19.1-21; 1960, c. 366; 1975, c. 495; 1978, c. 500; 1979, c. 708.)
Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 8; 3A M.J. Breach of the Peace, § 7; 4C M.J. Constitutional Law, § 141.
CASE NOTES
It is doubtful whether an arrest without a warrant may be made. Jones v. Peyton, 411 F.2d 857 (4th Cir.), cert. denied, 396 U.S. 942, 90 S. Ct. 373, 24 L. Ed. 2d 243 (1969).
Warrant against "associates" of persons named is void. - A warrant, directing the "associates" of persons named to be arrested, without mentioning the names of such associates, is illegal and void as to them. Wells v. Jackson, 17 Va. (3 Munf.) 458 (1811).
Warrant held illegal. - A warrant to arrest a person of whom surety for the peace is demanded, being executed neither by a sworn officer, nor the person to whom it was directed by the magistrate, but by an individual selected by the prosecutor, who erased the name of the person appointed by the magistrate, and substituted that of the person selected by himself, is thereby rendered altogether illegal and void as a justification for arrest. Wells v. Jackson, 17 Va. (3 Munf.) 458 (1811).
§ 19.2-21. Same; procedure when accused appears.
When such person appears, if the judge, on hearing the parties, considers that there is not good cause for the complaint, he shall discharge such person, and may give judgment in his favor against the complainant for his costs. If he considers that there is good cause therefor, he may require a recognizance of the person against whom it is, and give judgment against him for the costs of the prosecution, or any part thereof; and, unless such recognizance be given, he shall commit him to jail by a warrant, stating the sum and time in and for which the recognizance is directed. The person given judgment under this section for costs may issue a writ of fieri facias thereon, if an appeal be not allowed; and proceedings thereupon may be according to §§ 16.1-99 through 16.1-101.
(Code 1950, § 19.1-22; 1960, c. 366; 1975, c. 495; 1978, c. 500.)
CASE NOTES
A justice should take care to show cause with sufficient certainty if a party is committed for want of sureties. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
Security as punishment. - The plight of the impecunious defendant who is committed to jail for failure to give the security required of him is apparently not considered in arriving at the conclusion that the requirement to give security is not punishment. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
Even though the commendable procedure adopted to prevent crime was not intended to be punishment for a past offense, nevertheless the result is punishment for those persons who are unable to give security and must bear the stigma arising from commitment to jail. Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
Supreme Court has jurisdiction to consider an appeal under the provisions of § 19.2-317 . Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
§ 19.2-22. Same; arrest without a warrant.
A person arrested without a warrant by any conservator of the peace or other law-enforcement officer for any of the acts set forth in § 19.2-19 committed in the presence of such conservator of the peace or law-enforcement officer, shall be brought forthwith before a magistrate or judge, and proceedings shall be had in accordance with §§ 19.2-20 and 19.2-21 .
(1975, c. 495.)
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 5.
§ 19.2-23. Payment of fees or mileage allowances into county or city treasury.
Any conservator or policeman appointed under the provisions of this chapter shall not be entitled to fees or mileage for performance of his duties as such conservator or policeman.
(Code 1950, § 19.1-31; 1960, c. 366; 1975, c. 495.)
Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.
Article 3. Appeals.
Michie's Jurisprudence. - For related discussion, see 3A M.J. Breach of the Peace, § 7.
§ 19.2-24. When appeal may be taken; witnesses recognized; bail.
Any person from whom a recognizance is required under the provisions of this chapter or who has been committed to jail for failure to give security therefor, may appeal to the circuit court of the county or city, and, in such case, the judge from whose judgment the appeal is taken shall recognize such of the witnesses as he thinks proper; provided, however, that the person taking the appeal may be required to give bail, with good security, for his appearance at the circuit court of the county or city.
(Code 1950, § 19.1-23; 1960, c. 366; 1975, c. 495; 1978, c. 500.)
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 17. Subpoenas and Witnesses. § 17.02 Subpoena of Witnesses. Friend.
CASE NOTES
Right of appeal is absolute. - Where a magistrate requires surety of the peace of any person, such person has an absolute right of appeal to the circuit court of the county or the corporation court of the corporation. In the court the case is to be heard de novo upon the evidence. Read v. Commonwealth, 65 Va. (24 Gratt.) 618 (1873).
Case may not be remanded to magistrate. - In such a case it is error to reverse the judgment of the magistrate and remand the case to the magistrate to be tried by him. Any subsequent trial of the case by the magistrate is null and void. Read v. Commonwealth, 65 Va. (24 Gratt.) 618 (1873).
§ 19.2-25. Power of court on appeal.
The court may dismiss the complaint or affirm the judgment, and make what order it sees fit as to the costs. If it award costs against the appellant, the recognizance which he may have given shall stand as security therefor. When there is a failure to prosecute the appeal, such recognizance shall remain in force, although there be no order of affirmance. On any appeal the court may require of the appellant a new recognizance if it see fit.
Any person committed to jail under this chapter may be discharged by the circuit court of the county or city on such terms as it may deem reasonable.
(Code 1950, §§ 19.1-24, 19.1-25; 1960, c. 366; 1975, c. 495.)
CASE NOTES
Under this section the case is heard de novo. Rohanna v. Commonwealth, 168 Va. 696 , 190 S.E. 171 (1937); Fedele v. Commonwealth, 205 Va. 551 , 138 S.E.2d 256 (1964).
After end of term, court may not alter duration of recognizance. - In the absence of statute, after the end of the term at which final judgment was entered, the court had no power or authority to alter the final judgment by requiring appellant to give a recognizance for an entirely different duration from that fixed by the final judgment. Rohanna v. Commonwealth, 168 Va. 696 , 190 S.E. 171 (1937).
Punishment cannot be increased. - This section is obviously intended for the benefit and not for the disadvantage of the accused, and its purpose is to permit the court to relieve the accused from too harsh a situation theretofore placed upon him. Certainly it was not intended to give the court authority to increase the punishment fixed by a final judgment. Rohanna v. Commonwealth, 168 Va. 696 , 190 S.E. 171 (1937).
Chapter 3. Magistrates.
Transition Provisions.
Abolition of Justice of the Peace System.
The Magistrate System.
Supervision.
Jurisdiction and Powers.
Compensation and Fees.
Article 1. Transition Provisions.
§ 19.2-26. Repeal of inconsistent statutes, municipal charters, etc.
All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, are, except as herein otherwise provided, repealed to the extent of such inconsistency.
(Code 1950, § 19.1-374; 1973, c. 545; 1975, c. 495.)
§ 19.2-27. Effect of repeal of Title 39.1 on prior acts, offenses, etc.
The repeal of Title 39.1 effective as of January 1, 1974, shall not affect any act or offense done or committed or any penalty or forfeiture incurred, or any right established, accrued, or accruing on or before such date, or any prosecution, suit or action pending on that day.
(Code 1950, § 19.1-375; 1973, c. 545; 1975, c. 495.)
§ 19.2-28. Certain notices, recognizances and processes validated.
Any notice given, recognizance taken, or process or writ issued, before January 1, 1974, shall be valid although given, taken or to be returned to a day after such date, in like manner as if this title had been effective before the same was given, taken or issued.
(Code 1950, § 19.1-376; 1973, c. 545; 1975, c. 495.)
§ 19.2-29. References to former sections, articles and chapters in Title 39.1.
Whenever in Chapter 3 (§ 19.2-26 et seq.) of this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 39.1, as such title existed prior to January 1, 1974, are transferred in the same or modified form to a new section, article or chapter, and whenever any such former section, article or chapter is given a new number in Chapter 3 of this title all references to any such former section, article or chapter of Title 39.1 appearing elsewhere in this Code than in Chapter 3 of this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.
(Code 1950, § 19.1-377; 1973, c. 545; 1975, c. 495; 2002, c. 310.)
The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.) of this title" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.) of this title," and twice substituted "Chapter 3 of this title" for "Chapters 3 and 4 of this title."
Article 2. Abolition of Justice of the Peace System.
§ 19.2-30.
Repealed by Acts 2008, cc. 551 and 691, cl. 2.
§ 19.2-31. Abolition of office of issuing justice.
Effective January 1, 1974, the office of issuing justice as provided for in Chapter 2 (§ 39.1-20 et seq.) of Title 39.1 having been abolished, nevertheless, any such special justice of the peace in office December 31, 1973, and elected by the town council for a specific term to expire after that date, may continue in office for the remainder of that term. If he continues in office as provided herein, such justice shall exercise the same powers, perform the same duties, and receive such compensation as he was receiving as of December 31, 1973.
(Code 1950, § 19.1-379; 1973, c. 545; 1975, c. 495.)
Cross references. - For provisions as to magistrates, see § 19.2-33 et seq.
Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).
§ 19.2-32. References to justices of the peace.
References in law to justices of the peace shall be deemed to apply to magistrates unless the provisions of Chapter 3 (§ 19.2-26 et seq.) of this title shall render such reference inapplicable.
(Code 1950, § 19.1-380; 1973, c. 545; 1975, c. 495; 2002, c. 310.)
The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.)" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.)."
Article 3. The Magistrate System.
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.06 Magistrates. Friend.
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 19; 11B M.J. Justices and Magistrates, §§ 32-34.
§ 19.2-33. Office of magistrate.
The office of magistrate shall be vested with all the authority, duties and obligations previously vested in the office of justice of the peace prior to January 1, 1974.
(Code 1950, § 19.1-381; 1973, c. 545; 1975, c. 495.)
Cross references. - For provisions concerning compensation of magistrates, see § 19.2-46 et seq.
OPINIONS OF THE ATTORNEY GENERAL
Execution of orders subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons. - When a magistrate orders a law-enforcement agency to execute an order subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons, the magistrate should specify the police department of the town as the "primary law-enforcement agency of the jurisdiction" when a town is served by its own police department. If the town is not served by its own police department, the sheriff's office of the surrounding county is tasked with executing such orders and with transporting persons subject to such orders. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, 2011 Va. AG LEXIS 44 (10/21/11).
§ 19.2-34. Number of magistrates.
There shall be appointed as many magistrates as are necessary for the effective administration of justice. The positions of all employees of the magistrate system shall be authorized by the Committee on District Courts established pursuant to § 16.1-69.33.
(Code 1950, § 19.1-382; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1977, c. 198; 1981, c. 4; 1992, c. 55; 2008, cc. 551, 691.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted "for each judicial district" following "shall be appointed," and deleted "such magistrates and any other personnel in the office of the magistrates" following "administration of justice" in the first sentence, and inserted "The positions of all employees of the magistrate system" in the second sentence.
§ 19.2-35. Appointment; supervision generally.
Magistrates and any other personnel in the office of the magistrate shall be appointed by the Executive Secretary of the Supreme Court of Virginia in consultation with the chief judges of the circuit courts having jurisdiction within the region. Each magistrate shall be appointed to serve one or more of the magisterial regions created by the Executive Secretary. Each magisterial region shall be comprised of one or more judicial districts. The Executive Secretary shall have full supervisory authority over the magistrates so appointed. Notwithstanding any other provision of law, the only methods for the selection of magistrates shall be as set out in this section.
No person shall be appointed under this section until he has submitted his fingerprints to be used for the conduct of a national criminal records search and a Virginia criminal history records search. No person with a criminal conviction for a felony shall be appointed as a magistrate.
(Code 1950, § 19.1-383; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1981, c. 4; 1988, c. 511; 2002, c. 310; 2004, cc. 370, 452; 2008, cc. 551, 691.)
The 2002 amendments. - The 2002 amendment by c. 310, in the last sentence in the first paragraph, deleted "and special magistrates" following "selection of magistrates" and deleted "and Chapter 4 ( § 19.2-49 et seq.) of this title, respectively" at the end.
The 2004 amendments. - The 2004 amendment by c. 370, in the first paragraph, inserted the language beginning "in consultation with" at the end of the first sentence and twice inserted "court" in the third sentence; and in the second paragraph, in the first sentence, inserted "circuit court" and "in consultation with both ... of that district" in the first sentence.
The 2004 amendment by c. 452 added the last paragraph.
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and rewrote the first paragraph, and deleted the second and third paragraphs relating to the appointment of substitute magistrates and replacement of magistrates due to absence.
Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).
§ 19.2-36. Chief magistrates.
- The Executive Secretary of the Supreme Court of Virginia may appoint chief magistrates, for the purpose of assisting in the training of the magistrates and being responsible to the Executive Secretary for the conduct of the magistrates and to further assist the Office of the Executive Secretary in the operation of one or more of the magisterial regions. The chief magistrate shall exercise direct daily supervision over the magistrates he supervises and shall have the power to suspend without pay a magistrate after consultation and with the concurrence of the Executive Secretary.
- To be eligible for appointment as chief magistrate, a person shall meet all of the qualifications of a magistrate under § 19.2-37 and must be a member in good standing of the Virginia State Bar. His appointment as chief magistrate shall terminate effective on the date on which his membership in good standing ceases. The requirements of this subsection relating to membership in the Virginia State Bar shall not apply to any person appointed as a chief magistrate before July 1, 2008, who continues in that capacity without a break in service. (Code 1950, § 19.1-384; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1984, c. 37; 2004, c. 370; 2008, cc. 551, 691.)
The 2004 amendments. - The 2004 amendment by c. 370, in the first sentence, deleted "circuit" preceding "judge of a circuit" and inserted "court, in consultation with ... of that district" and twice inserted "court."
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and inserted the subsection A designation, rewrote the first paragraph, and added subsection B.
§ 19.2-37. Magistrates; eligibility for appointment; restrictions on activities.
- Any person who is a United States citizen and resident of the Commonwealth may be appointed to the office of magistrate under this title subject to the limitations of Chapter 28 (§ 2.2-2800 et seq.) of Title 2.2 and of this section.
- Every person appointed as a magistrate on and after July 1, 2008, shall be required to have a bachelor's degree from an accredited institution of higher education. A person initially appointed as a magistrate prior to July 1, 2008, who continues in office without a break in service is not required to have a bachelor's degree from an accredited institution of higher education.
- A person shall not be eligible for appointment as a magistrate under the provisions of this title: (a) if such person is a law-enforcement officer; (b) if such person or his spouse is a clerk, deputy or assistant clerk, or employee of any such clerk of a district or circuit court, provided that the Committee on District Courts may authorize a magistrate to assist in the district court clerk's office on a part-time basis; (c) if the parent, child, spouse, or sibling of such person is a district or circuit court judge in the magisterial region where he will serve; or (d) if such person is the chief executive officer, or a member of the board of supervisors, town or city council, or other governing body for any political subdivision of the Commonwealth.
- No magistrate shall issue any warrant or process in complaint of his spouse, child, grandchild, parent, grandparent, parent-in-law, child-in-law, brother, sister, brother-in-law or sister-in-law, nephew, niece, uncle, aunt, first cousin, guardian or ward.
- A magistrate may not engage in any other activity for financial gain during the hours that he is serving on duty as a magistrate. A magistrate may not be employed outside his duty hours without the prior written approval of the Executive Secretary.
- No person appointed as a magistrate on or after July 1, 2008, may engage in the practice of law.
- A magistrate who is designated as a marriage celebrant under § 20-25 may not accept a fee, a gratuity, or any other thing of value for exercise of authority as a marriage celebrant. (Code 1950, § 19.1-385; 1973, c. 545; 1975, c. 495; 1976, c. 138; 1978, cc. 463, 760; 1984, c. 41; 1985, c. 45; 1986, c. 202; 1996, c. 112; 1999, c. 267; 2004, c. 830; 2008, cc. 551, 691.)
The 1999 amendment substituted "or an adjoining judicial district" for "however, Arlington, Fairfax and Prince William Counties and the City of Alexandria may employ as magistrates persons residing in adjoining judicial districts" in clause (d) in the first sentence.
The 2004 amendments. - The 2004 amendment by c. 830, in the first sentence, deleted "or his spouse" following "such person" in clause (a), and in clause (b), deleted "charged with the duty of enforcing any of the laws of this Commonwealth or any ordinance of any political subdivision thereof" following "or employee" and "or police department or sheriff's office in any county or city with respect to appointment to the office of magistrate of such county or city" following "of a district court."
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and designated former first, second, and third paragraphs as subsections A, C, and D, respectively; added subsections B, E, F, and G; in subsection A, inserted "who is a United States citizen and resident of the Commonwealth"; rewrote subsection C; and in subsection D, deleted the last sentence, which read: "The residence provisions contained in this section shall not be a bar to the reappointment of any magistrate in office on July 1, 1973, provided he is otherwise eligible to serve under the provisions of this chapter."
Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).
OPINIONS OF THE ATTORNEY GENERAL
Warrant may not be issued to family member. - A magistrate may not issue a warrant to a sheriff who is a first cousin of the magistrate, but may issue a warrant to that sheriff's deputy. See opinion of Attorney General to The Honorable Claude Meinhard, Sheriff for Cumberland County, 00-036 (6/7/00).
§ 19.2-38. Probationary period; compensation and benefits; vacancies; revocation of appointment.
Persons appointed as magistrates under the provisions of this chapter shall serve at the pleasure of the Executive Secretary. Upon appointment by the Executive Secretary, every magistrate shall serve initially for a nine-month probationary period during which the magistrate must complete the minimum training program as established by the Committee on District Courts and satisfactorily complete a certification examination. Any magistrate who fails to successfully pass the certification examination shall not serve beyond the nine-month probationary period. The probationary period described in this section shall not apply to any magistrate serving on July 1, 2008, who has successfully completed the minimum training program and passed the certification examination, provided there is no break in service after July 1, 2008. Magistrates shall be entitled to compensation and other benefits only from the time they take office.
(Code 1950, § 19.1-386; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1980, c. 505; 2004, c. 370; 2008, cc. 551, 691.)
Editor's note. - Acts 1996, cc. 755 and 914, cls. 3, provide: "[t]hat beginning July 1, 1996, the magistrate training program established by the Committee on District Courts pursuant to § 19.2-38 shall include a mandatory component addressing the issuance of warrants and detention orders in juvenile and family courts."
The 2004 amendments. - The 2004 amendment by c. 370 deleted the former fifth sentence, which read: "Vacancies shall be filled for the unexpired term by the chief circuit judge," and inserted "court" in the last sentence.
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "shall serve at the pleasure of the Executive Secretary. Upon appointment by the Executive Secretary, every magistrate shall serve initially for a nine-month probationary period" for "shall serve for a term of four years. Such term shall commence upon appointment and qualification, provided that any magistrate appointed for the first time to any term commencing after July 1, 1980, shall serve initially for a six-month probationary period" in the first two sentences, substituted the third sentence for "Failure to successfully pass the certification examination shall preclude the magistrate from serving beyond the six-month probationary period," inserted the fourth sentence, and deleted the last sentence, which read: "Appointments made under the provisions of this chapter shall be revocable at the pleasure of the chief circuit court judge."
§ 19.2-38.1. Training standards; training prerequisite to reappointment; waiver.
The Committee on District Courts shall establish minimum training and certification standards for magistrates in accordance with such rules and regulations as may be established by the Committee. Every magistrate shall comply with these standards and shall complete the minimum training standards as a prerequisite for continuing to serve as magistrate beyond the nine-month probationary period as established by § 19.2-38 . The Committee on District Courts upon request may waive any portion of the minimum training standards for an individual magistrate.
(1980, c. 505; 1985, c. 132; 1995, c. 611; 2008, cc. 551, 691.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and rewrote the section.
§ 19.2-39. Bond.
Every magistrate appointed under the provisions of this chapter shall enter into bond in the sum of $5,000, made payable to the Commonwealth, before a clerk of a circuit court, for the faithful performance of his duties. The premium for such bond shall be paid by the Commonwealth. Provided, however, that in lieu of specific bonds, the Committee on District Courts may in its discretion procure faithful performance of duty blanket bonds for all magistrates and for the penalty contained in this section, unless in the discretion of the Committee, bonds with a larger penalty should be obtained. Such blanket bonds shall be made payable to the Commonwealth and shall cover all funds handled by a magistrate whether such funds belong to the Commonwealth or any political subdivision thereof. Provided further, that in those instances where specific bonds for magistrates are in effect, the Committee on District Courts may, whenever it deems it advisable, terminate such specific bonds upon obtaining a blanket bond covering such magistrates with appropriate refunds or credit being made for the unearned premiums on the specific bonds terminated. A copy of any such blanket bond so procured shall be filed with the State Comptroller and with the clerk of the respective circuit courts. The premiums for such blanket bonds shall be paid by the Commonwealth.
(Code 1950, § 19.1-387; 1973, c. 545; 1974, c. 484; 1975, c. 495; 2008, cc. 551, 691.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "before a clerk of a circuit court" for "before the clerk of the circuit court which exercises jurisdiction over the political subdivision wherein such magistrate shall serve" in the first sentence, substituted "blanket bonds for all magistrates" for "blanket bonds for any or all of the districts enumerated in § 16.1-69.6 covering all magistrates included in such districts" in the third sentence, and substituted "respective circuit courts" for "respective circuit court which exercises jurisdiction over the district wherein such magistrate shall serve" in the sixth sentence.
§ 19.2-40.
Repealed by Acts 1980, c. 758.
Editor's note. - Acts 1980, c. 758, cl. 3, which provided that the act should not be effective within the Nineteenth Judicial Circuit, was repealed by Acts 1981, c. 403, cl. 2.
Article 4. Supervision.
§ 19.2-41.
Repealed by Acts 2008, cc. 551 and 691, cl. 2.
§ 19.2-42.
Repealed by Acts 2004, c. 327.
§ 19.2-43. Duty of Executive Secretary of Supreme Court.
It shall be the duty of the Executive Secretary of the Supreme Court to exercise general supervisory power over the administration of magistrates and adopt such policies as are deemed necessary to supplement or clarify the provisions of this chapter with respect to such magistrates, to include fixing the time and place such magistrates shall serve. The Executive Secretary shall conduct training sessions and meetings for magistrates and provide information and materials for their use. He may appoint one or more magistrates to assist him and, in addition, require annual reports to be filed by the magistrates on their work as such, fees associated therewith and other information pertinent to their office, on forms to be furnished by him. The Executive Secretary may appoint and employ such personnel as are needed to manage the magistrate system and carry out the duties and responsibilities conferred upon the Executive Secretary by this chapter.
(Code 1950, § 19.1-392; 1973, c. 545; 1974, c. 484; 1975, c. 495; 2008, cc. 551, 691.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "exercise general supervisory power over the administration of magistrates and adopt such policies as are deemed necessary to supplement or clarify the provisions of this chapter with respect to such magistrates, to include fixing the time and place such magistrates shall serve. The Executive Secretary shall conduct" for "assist the chief general district judges and general district courts in the supervision and mandatory training of magistrates for which purpose he shall be authorized to conduct" in the first two sentences, deleted "with the approval of the Chief Justice" preceding "required annual reports" in the third sentence, and added the last sentence.
Article 5. Jurisdiction and Powers.
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.06 Magistrates. Friend.
Michie's Jurisprudence. - For related discussion, see 11B M.J. Justices and Magistrates, §§ 2, 33, 37.
§ 19.2-44. Territorial jurisdiction.
A magistrate shall be authorized to exercise the powers conferred on magistrates by this title only in the magisterial region or regions for which he is appointed, except that a magistrate may issue search warrants in accordance with the provisions of Chapter 5 (§ 19.2-52 et seq.) throughout the Commonwealth. A magistrate may exercise all powers conferred on magistrates by this title throughout the Commonwealth when so authorized by the Executive Secretary upon a determination that such assistance is necessary.
(Code 1950, § 19.1-393; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1995, c. 551; 2008, cc. 551, 691; 2014, cc. 305, 310.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in the first sentence, inserted "be authorized to" preceding "exercise the powers" near the beginning and substituted "magisterial region or regions" for "judicial district" near the end; and in the second sentence, substituted "throughout the Commonwealth" for "in a contiguous political subdivision" and substituted "the Executive Secretary upon a determination that such assistance is necessary" for "his appointing authority and the chief circuit court judge of the district to which assistance is to be provided" at the end.
The 2014 amendments. - The 2014 amendments by cc. 305 and 310 are identical, and inserted "on magistrates" following "conferred" and "except that a magistrate may issue search warrants in accordance with the provisions of Chapter 5 ( § 19.2-52 et seq.) throughout the Commonwealth" following "appointed" in the first sentence and substituted "A" for "However, a" preceding "magistrate", "all" for "these" preceding "powers" and inserted "conferred on magistrates by this title" following "powers" in the second sentence.
§ 19.2-44.1.
Repealed by Acts 1976, c. 138.
Cross references. - For present provisions as to substitute magistrates, see § 19.2-35 .
§ 19.2-45. Powers enumerated.
A magistrate shall have the following powers only:
- To issue process of arrest in accord with the provisions of §§ 19.2-71 to 19.2-82 of the Code;
- To issue search warrants in accord with the provisions of §§ 19.2-52 to 19.2-60 of the Code;
- To admit to bail or commit to jail all persons charged with offenses subject to the limitations of and in accord with general laws on bail;
- The same power to issue warrants and subpoenas as is conferred upon district courts and as limited by the provisions of §§ 19.2-71 through 19.2-82 . A copy of all felony warrants issued at the request of a citizen shall be promptly delivered to the attorney for the Commonwealth for the county or city in which the warrant is returnable. Upon the request of the attorney for the Commonwealth, a copy of any misdemeanor warrant issued at the request of a citizen shall be delivered to the attorney for the Commonwealth for such county or city. All attachments, warrants and subpoenas shall be returnable before a district court;
- To issue civil warrants directed to the sheriff or constable of the county or city wherein the defendant resides, together with a copy thereof, requiring him to summon the person against whom the claim is, to appear before a district court on a certain day, not exceeding 30 days from the date thereof to answer such claim. If there be two or more defendants and any defendant resides outside the jurisdiction in which the warrant is issued, the summons for such defendant residing outside the jurisdiction may be directed to the sheriff of the county or city of his residence, and such warrant may be served and returned as provided in § 16.1-80;
- To administer oaths and take acknowledgments;
- To act as conservators of the peace;
-
, (9) [Repealed.]
(10) To perform such other acts or functions specifically authorized by law.
(Code 1950, § 19.1-394; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 471; 1977, c. 332; 1978, cc. 500, 605; 1985, c. 77; 2007, cc. 122, 373; 2008, cc. 551, 691; 2009, cc. 291, 344; 2018, c. 164.)
The 2007 amendments. - The 2007 amendments by cc. 122 and 373 are identical, and in subdivision (4), inserted the second sentence and substituted "All" for "Such" at the beginning of the last sentence.
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in subdivision 4, deleted "within such county or city" following "warrants and subpoenas" in the first sentence, inserted the second sentence and substituted "misdemeanor warrant" for "criminal warrant" in the third sentence.
The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are identical, and in subsection (4), inserted "and as limited by the provisions of §§ 19.2-71 through 19.2-82 "; and in subsection (5), made a minor stylistic change.
The 2018 amendments. - The 2018 amendment by c. 164, in subsection 4, deleted "or any court of limited jurisdiction continued in operation pursuant to § 16.1-70.1" from the end.
CASE NOTES
Immunity for acts in judicial capacity. - As judicial officers, magistrates are entitled to absolute immunity for acts performed in their judicial capacity. That immunity is vitiated only when the judicial officer acts in the clear absence of all jurisdiction. Pressly v. Gregory, 831 F.2d 514 (4th Cir. 1987).
Warrant issued after arrest irrelevant in false arrest action. - In an action under 42 U.S.C. § 1983 alleging that defendant officer denied plaintiff due process by subjecting him to a false arrest for being drunk in public, the arrest warrant issued by the magistrate subsequent to the arrest did not establish as a matter of law that probable cause existed for the defendant to arrest the plaintiff. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).
When a defendant officer in a civil action relies upon probable cause as a defense to a charge of illegal arrest under 42 U.S.C. § 1983, he must establish that probable cause existed at the time the arrest was made. A warrant, subsequently issued by a magistrate, is irrelevant to the determination of whether the officer arresting an individual without a warrant had probable cause to arrest. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).
"No-knock entry." - Under Virginia law, the authority to effect a no-knock entry stems from exigent circumstances reasonably appearing to the officers to be in existence at the time the entry is made, and not at the time the warrant is obtained; thus, under Virginia law a magistrate lacks authority to "command" a no-knock entry in advance of the entry. Fenner v. Dawes, 748 F. Supp. 404 (E.D. Va. 1990).
Applied in Tross v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995).
Article 6. Compensation and Fees.
Michie's Jurisprudence. - For related discussion, see 11B M.J. Justices and Magistrates, §§ 34, 36.
§ 19.2-46. Compensation.
The salaries of all magistrates shall be fixed and paid as provided in § 19.2-46.1 . The salaries referred to herein shall be in lieu of all fees which may accrue to the recipient by virtue of his office.
(Code 1950, § 19.1-395; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1980, c. 139; 2008, cc. 551, 691.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted the former second paragraph, which read: "Each substitute magistrate shall receive for his services a per diem compensation as may be established by the Committee on District Courts."
Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).
§ 19.2-46.1. Salaries to be fixed by the Executive Secretary; limitations; mileage allowance.
Salaries of magistrates and any other personnel in the office of the magistrate shall be fixed by the Executive Secretary of the Supreme Court. Such salaries shall be fixed by the Executive Secretary at least annually at such time as he deems proper and as soon as practicable thereafter certified to the Comptroller.
In determining the salary of any magistrate, the Executive Secretary shall consider the work load of and territory and population served by the magistrate and such other factors he deems relevant.
The governing body of any county or city may add to the fixed compensation of magistrates such amount as the governing body may appropriate with the total amount not to exceed 50 percent of the amount paid by the Commonwealth to magistrates provided such additional compensation was in effect on June 30, 2008, for such magistrates and any magistrate receiving such additional compensation continues in office without a break in service. However, the total amount of additional compensation may not be increased after June 30, 2008. No additional amount paid by a local governing body shall be chargeable to the Executive Secretary of the Supreme Court, nor shall it remove or supersede any authority, control or supervision of the Executive Secretary or Committee on District Courts.
(1973, c. 545, § 14.1-44.2; 1974, c. 484; 1975, c. 334; 1981, c. 4; 1995, cc. 331, 378; 1998, c. 872; 2008, cc. 551, 691.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are nearly identical, and in the first paragraph, substituted "Executive Secretary of the Supreme Court" for "Committee on District Courts established pursuant to § 16.1-69.33" in the first sentence, substituted "Executive Secretary" for "Committee" and deleted "and the Executive Secretary of the Supreme Court" from the end of the second sentence; deleted the former second paragraph, which read: "In addition to the salary authorized by this section, a magistrate may be reimbursed by the county or city for reasonable mileage expenses actually incurred in the performance of his duties"; in the second paragraph, substituted "Executive Secretary" for "Committee" and deleted the last sentence, which read: "It may require of any magistrate or district judge information on the operation of the office of the magistrate"; in the third paragraph, inserted the proviso at the end of the first sentence and added the second sentence.
§ 19.2-46.2. Full-time magistrates; certification for retirement coverage.
The Committee on District Courts shall certify to the director of the Virginia Retirement System the names of those magistrates serving on a regular full-time basis. Certification by the Committee shall qualify a magistrate as a state employee, for purposes of §§ 51.1-124.3 and 51.1-152 of the Virginia Retirement System (§ 51.1-124.1 et seq.), effective on the date given in the certificate as the date on which such magistrate first served on a regular full-time basis on or after January 1, 1974.
(1974, c. 353, § 14.1-44.2:1; 1998, c. 872.)
§ 19.2-47. Magistrate not to receive claims or evidence of debt for collection.
No magistrate shall receive claims or evidence of debt for collection; and it shall be unlawful for any magistrate to receive claims of any kind for collection, or to accept or receive money or any other things of value by way of commission or compensation for or on account of any collection made by or through him on any such claim, either before or after judgment. Any magistrate violating this section shall be guilty of a Class 1 misdemeanor.
(Code 1950, § 19.1-396; 1973, c. 545; 1975, c. 495.)
Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .
§ 19.2-47.1. Disposition of funds.
All funds paid to and collected by or on behalf of a magistrate shall be paid promptly to the appropriate district court clerk, circuit court clerk, commissioner in chancery, department of the Commonwealth, federal agency or as otherwise authorized by statute.
(1973, c. 545, § 14.1-44.4; 1980, c. 356; 1987, c. 22; 1998, c. 872.)
§ 19.2-48. Audits.
The Auditor of Public Accounts shall audit the records of all magistrates who serve any county or city when auditing the records of the district courts of such county or city or upon request of the chief district judge of the district in which such county or city is located.
(Code 1950, § 19.1-397; 1973, c. 545; 1975, c. 495; 1980, c. 195; 2008, cc. 551, 691.)
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "serve any county" for "serve in any county."
§ 19.2-48.1. Quarters for magistrates.
- The counties and cities served by a magistrate or magistrates shall provide suitable quarters for such magistrates, including a site for any videoconferencing equipment necessary to provide remote access to such magistrates. Insofar as possible, such quarters should be located in a public facility and should be appropriate to conduct the affairs of a judicial officer as well as provide convenient access to the public and law-enforcement officers. The county or city shall also provide all furniture and other equipment necessary for the efficient operation of the office.
-
Wherever practical, the office of magistrate shall be located at the county seat. However, offices may be located at other locations in the county, or city adjacent thereto, whenever such additional offices are necessary to effect the efficient administration of justice.
(1975, c. 495; 1981, c. 5; 1988, c. 510; 2008, cc. 551, 691.)
Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in subsection A, rewrote the first sentence, which read: "Each county and city having a general district court or juvenile and domestic relations district court and having one or more magistrates appointed pursuant to Article 3 ( § 19.2-33 et seq.) of this chapter, shall provide suitable quarters for such magistrates."
Chapter 4. Special Magistrates.
§§ 19.2-49 through 19.2-51.
Repealed by Acts 1980, c. 758.
Editor's note. - Acts 1980, c. 758, cl. 3, which provided that the act should not be effective within the Nineteenth Judicial Circuit, was repealed by Acts 1981, c. 403, cl. 2.
Chapter 5. Search Warrants.
Sec.
Research References. - Virginia Forms (Matthew Bender). No. 9-103. Affidavit for Search Warrant--DNA Materials; No. 9-104. Affidavit for Search Warrant --Drugs; No. 9-105. Affidavit for Search Warrant--Internet Materials; No. 9-106. Search Warrant. No. 9-2101. Motion to Suppress--Illegal Warrantless Search, et seq.
Michie's Jurisprudence. - For related discussion, see 11B M.J. Justices and Magistrates, §§ 33, 37; 16 M.J. Searches and Seizures, §§ 3-10.
§ 19.2-52. When search warrant may issue.
Except as provided in § 19.2-56.1 , search warrants, based upon complaint on oath supported by an affidavit as required in § 19.2-54 , may be issued by any judge, magistrate or other person having authority to issue criminal warrants, if he be satisfied from such complaint and affidavit that there is reasonable and probable cause for the issuance of such search warrant.
An application for a search warrant to withdraw blood from a person suspected of violating § 18.2-266 , 18.2-266 .1, 18.2-272 , 29.1-738 , 29.1-738.02 , or 46.2-341.24 shall be given priority over any pending matters not involving an imminent risk to another's health or safety before such judge, magistrate, or other person having authority to issue criminal warrants.
(Code 1950, § 19.1-83; 1960, c. 366; 1975, c. 495; 1986, c. 636; 2017, cc. 623, 673.)
Cross references. - As to use and approval of facial recognition technology, by local law-enforcement agencies, see § 15.2-1723.2 , and by campus police departments, see § 23.1-815.1 .
For constitutional provision, see Va. Const., Art. I, § 10.
The 2017 amendments. - The 2017 amendments by cc. 623 and 673, effective March 16, 2017, are identical, and added the last paragraph.
Law review. - For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).
For note, "The Role of Police Culpability in Leon and Youngblood," see 76 Va. L. Rev. 1213 (1990).
CASE NOTES
What is a reasonable search is purely a judicial question, and in determining it the court must look to all the circumstances. Johnson v. Commonwealth, 213 Va. 102 , 189 S.E.2d 678 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 918, 34 L. Ed. 2d 700 (1973).
§ 19.2-53. What may be searched and seized.
-
Search warrants may be issued for the search of or for specified places, things or persons, and seizure therefrom of the following things as specified in the warrant:
- Weapons or other objects used in the commission of crime;
- Articles or things the sale or possession of which is unlawful;
- Stolen property or the fruits of any crime;
- Any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime; or
-
Any person to be arrested for whom a warrant or process for arrest has been issued.
Notwithstanding any other provision in this chapter to the contrary, no search warrant may be issued as a substitute for a witness subpoena.
- Any search warrant issued for the search and seizure of a computer, computer network, or other device containing electronic or digital information shall be deemed to include the search and seizure of the physical components and the electronic or digital information contained in any such computer, computer network, or other device.
-
Any search, including the search of the contents of any computer, computer network, or other device conducted pursuant to subsection B, may be conducted in any location and is not limited to the location where the evidence was seized.
(Code 1950, § 19.1-84; 1960, c. 366; 1962, c. 519; 1966, c. 363; 1970, c. 650; 1974, c. 113; 1975, c. 495; 1981, c. 559; 2015, c. 501; 2017, cc. 233, 242.)
Cross references. - As to search warrants relating to alcoholic beverages, see § 4.1-337 .
Editor's note. - Acts 2015, c. 501, cl. 2 provides: "That this act is declaratory of existing law."
The 2015 amendments. - The 2015 amendment by c. 501 inserted the subsection A designation, redesignated subdivisions (a) through (d) as 1 through 4, and added subsections B and C.
The 2017 amendments. - The 2017 amendments by cc. 233 and 242, are identical, and inserted subdivision A 5.
Law review. - For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974). For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia law on arrests in private dwellings for the year 1979-1980, see 67 Va. L. Rev. 275 (1981). For article, "Unreasonable Searches and Seizures of Papers," see 71 Va. L. Rev. 869 (1985).
For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).
CASE NOTES
Papers of an evidential nature. - No search warrant can be issued for the search and seizure of papers of an evidential nature. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, rehearing denied, 373 U.S. 947, 83 S. Ct. 1533, 10 L. Ed. 2d 702 (1963).
Warrant not authorized for discovery purposes. - This section does not authorize a search warrant to be issued for a criminal defendant for the purpose of discovery. Henshaw v. Commonwealth, 19 Va. App. 338, 451 S.E.2d 415 (1994).
Additional seizures under warrant. - Where appellant's address was identified in the warrant as the place to be searched, and "marijuana" was specified as the item to be seized, a search was not invalid merely because officers seized items not named in the warrant. Cherry v. Commonwealth, 21 Va. App. 132, 462 S.E.2d 574 (1995).
§ 19.2-53.1. Taking blood samples pursuant to search warrant; immunity.
No cause of action shall lie in any court against any person authorized by law to withdraw blood pursuant to a search warrant issued in accordance with § 19.2-53 when that person is acting in accordance with such warrant, except in cases of negligence in the withdrawing of blood or willful misconduct.
(2015, c. 425.)
§ 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 § 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 (§ 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.
(Code 1950, § 19.1-85; 1960, c. 366; 1973, c. 502; 1975, c. 495; 1976, c. 552; 1977, c. 109; 1979, c. 583; 1980, c. 362; 1981, c. 559; 1989, c. 719; 2006, c. 285; 2007, c. 212; 2008, cc. 147, 183; 2011, cc. 196, 219; 2012, c. 5; 2017, cc. 228, 233, 242, 641.)
The 2006 amendments. - The 2006 amendment by c. 285 inserted the second sentence in the first paragraph.
The 2007 amendments. - The 2007 amendment by c. 212 inserted "in person or mailed by certified mail, return receipt requested" in the third sentence.
The 2008 amendments. - The 2008 amendments by cc. 147 and 183 are identical and rewrote the third sentence of the first paragraph and made minor stylistic changes.
The 2011 amendments. - The 2011 amendment by c. 196, inserted "after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier" in the third sentence in the first paragraph.
The 2011 amendment by c. 219, in the first paragraph, in the third sentence, inserted "any warrant issued pursuant thereto, any return made thereon, and any order sealing the affidavit, warrant, or return" and "for a specific period of time," and subdivided the former fourth sentence and therein added "warrant, and return."
The 2012 amendments. - The 2012 amendment by c. 5, in the first paragraph, inserted the (i) designator and clause (ii) of the second sentence, added "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" in the third sentence, and made minor stylistic changes.
The 2017 amendments. - The 2017 amendments by cc. 228 and 641 are identical, and in the third sentence of the first paragraph, deleted "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," preceding "within seven days" and substituted "clerk" for "clerks."
The 2017 amendments by cc. 233 and 242 are identical, and in the first paragraph, inserted "or the identity of the person to be arrested for whom a warrant or process for arrest has been issued" and "or is the person to be arrested for whom a warrant or process for arrest has been issued" in the first sentence.
Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For note on reasonable suspicion and probable cause in automobile searches, see 40 Wash. & Lee L. Rev. 361 (1983). For note, "The Constitutionality of the Use of Unrecorded Oral Testimony to Establish Probable Cause for Search Warrants," see 70 Va. L. Rev. 1603 (1984). For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985).
CASE NOTES
I. GENERAL CONSIDERATION.
The requirements of this section are the same as those of the Fourth Amendment to the federal Constitution. Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).
The requirements of the Virginia statutes controlling the issuance of search warrants and forbidding searches without a warrant ( §§ 19.2-54 and 19.2-56 ) are in substance the same as those contained in the Fourth Amendment. Kirby v. Commonwealth, 209 Va. 806 , 167 S.E.2d 411 (1969).
General warrants are proscribed by both the Fourth Amendment and this section. The requirements of state law controlling the issuance of search warrants have been interpreted to impose the same search warrant requirements as the Fourth Amendment. The Fourth Amendment requires neither that a search warrant be elaborately detailed nor that authorities minutely identify every item for which they are searching. So long as the search warrant describes the objects of the search with reasonable specificity, it complies with the dictates of the Fourth Amendment. Morke v. Commonwealth, 14 Va. App. 496, 419 S.E.2d 410 (1992).
The purpose of this and the following sections of this chapter is to protect and enforce the rights of citizens guaranteed to them by Va. Const., Art. I, § 10. Hall v. Commonwealth ex rel. Town of South Boston, 138 Va. 727 , 121 S.E. 154 (1924).
The purpose of this section is to give the defendant reasonable opportunity to determine that the affidavit on file is the same one upon which the determination of probable cause was based. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).
Purpose of statute achieved. - Although the affidavit was delivered to the circuit court by the officer who executed the search warrant rather than by the magistrate who issued it, the notice-based purpose of the statute was achieved; furthermore, defendant did not point to any prejudice he suffered as a result of the affidavit not having been filed by the magistrate, and thus the circuit court did not err in denying defendant's motion to suppress evidence. Daniels v. Commonwealth, 69 Va. App. 422, 819 S.E.2d 870, 2018 Va. App. LEXIS 304 (2018).
This section and § 19.2-250 must also be read together and harmonized. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).
General warrants proscribed. - Plain view doctrine may not be used only as a pretext to extend a general exploratory search from one object to another until something incriminating at last emerges as general warrants are proscribed by § 19.2-54 . Commonwealth v. Marek, No. 2123-02-4, 2003 Va. App. LEXIS 46 (Ct. of Appeals Feb. 5, 2003).
This section does not preclude the introduction of an affidavit in support of a search warrant. Lane v. Commonwealth, 223 Va. 713 , 292 S.E.2d 358 (1982).
An affidavit submitted for a warrant may be supplemented with additional affidavits. - An affidavit submitted for a warrant under this section may be supplemented or rehabilitated with additional affidavits which contain collective facts relevant to the same offenses when those affidavits are presented, simultaneously, to the issuing magistrate by the same officer. Derr v. Commonwealth, 410 Va. 662 , 410 S.E.2d 662 (1991).
Constitutional requirements as to affidavit. - "The required affidavit" means the affidavit required to support issuance of a search warrant. Under the Fourth Amendment warrant requirement, the content of that affidavit must be sufficient to support a finding of probable cause by a neutral and detached magistrate. The Constitution does not require the magistrate to certify an affidavit. The purpose of that requirement in this section is to ensure that the affidavit filed with the clerk for the information of the accused is the same affidavit upon which the finding of probable cause was based. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501 (1983).
Affidavit must include any supplementary facts presented to the magistrate to establish probable cause. McCary v. Commonwealth, 228 Va. 219 , 321 S.E.2d 637 (1984).
Magistrate must be informed of some of the underlying circumstances. - Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was "credible" or his information "reliable." Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).
Offense to be identified briefly and in general terms. - This section and Rule 3A:27 (now repealed) of the Supreme Court contemplate that both in the affidavit for a search warrant, and in the warrant itself, the offense in relation to which the search was to be made should be identified briefly and in general terms rather than in the precise and legalistic language usually found in an indictment, a presentment or an arrest warrant. Carratt v. Commonwealth, 215 Va. 55 , 205 S.E.2d 653 (1974), cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).
The object in identifying the offense in the affidavit for a search warrant and in the warrant is to apprise the subject of the search of the offense being investigated and the evidence sought, and to advise the officers in advance as to what they are to be searching for. Carratt v. Commonwealth, 215 Va. 55 , 205 S.E.2d 653 (1974), cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).
Omitting to allege "substantially the offense in relation to which such search is to be made" rendered the affidavit defective, the search warrant invalid, and the evidence secured in the ensuing search inadmissible. Moore v. Commonwealth, 211 Va. 569 , 179 S.E.2d 458 (1971).
The mere fact that the warrant did not refer to the same Code section as the affidavit is of no consequence. What is important is that the warrant clearly and substantially described and identified the criminal violation in relation to which the search was being made. Carratt v. Commonwealth, 215 Va. 55 , 205 S.E.2d 653 (1974), cert. denied, 420 U.S. 973, 95 S. Ct. 1394, 43 L. Ed. 2d 652 (1975).
Facts must be closely related to time of issuance of warrant. - Virginia's statutes fix no maximum time interval between the date of the events and circumstances recited in the affidavit and the date of the affidavit and issuance of the warrant. However, the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Huff v. Commonwealth, 213 Va. 710 , 194 S.E.2d 690 (1973).
Search without warrant based in part on information in affidavit. - Information contained in an affidavit that supported a search warrant for defendant's residence and automobile was sufficient for the police to search the defendant without the warrant, where the police had independent information about defendant's recent, sexually deviant, behavior and numerous verifications that his car had been seen in the vicinity of the crime. Drumheller v. Commonwealth, 223 Va. 695 , 292 S.E.2d 602, cert. denied, 459 U.S. 913, 103 S. Ct. 224, 74 L. Ed. 2d 178 (1982).
Statement of affiant's information source not required. - A statement of the source of the affiant's information, while required by U.S. Const., Amend. 14, is not mandated by this section. McCary v. Commonwealth, 228 Va. 219 , 321 S.E.2d 637 (1984).
Affidavit based on unnamed informant's tip. - The test for determining probable cause in those many instances where the affidavit is based solely or substantially upon an informer's tip is set forth as follows: (1) The affidavit must describe some of the underlying circumstances necessary to enable a neutral and detached magistrate to judge the validity of the informant's conclusion that the narcotics were where he claimed they were; and (2) the affidavit must describe some of the underlying circumstances from which such magistrate can determine that the affiant officer's unnamed informant, whose identity need not be disclosed, was "credible" or his information "reliable." Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
An affidavit for a search warrant based solely or substantially upon information from an informant must describe (1) sufficient underlying circumstances to enable a neutral and detached magistrate to judge the validity of the informant's conclusion as to the location of the contraband, and (2) some of the circumstances which would permit the magistrate to judge the credibility of the unnamed informant or the reliability of his information. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).
To establish probable cause based upon an informant's tip, the prosecution must show underlying circumstances sufficient to support the informant's conclusions and the conclusion of the police that the informant was credible or his information reliable. This standard applies to a search or arrest made by an officer without benefit of a warrant as well as to a search or arrest made pursuant to a warrant issued by a magistrate. Wright v. Commonwealth, 222 Va. 188 , 278 S.E.2d 849 (1981).
Affiant must present factual basis for crediting informant's story. - Where the accuracy of the information received from a confidential informant is not supported by other sources known or stated to be accurate or from corroborated facts known or discovered by the affiant personally or from other official or reliable reports, the officer-affiant must present in his affidavit a substantial factual basis for crediting the informant's story. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Substantiation of informant's reliability. - The most commonly accepted and approved allegation to substantiate reliability is that the informer is a person of known and proven reliability and has furnished information to law-enforcement officers which has been instrumental in procuring convictions. But the credibility of the informer or the reliability of his information may be shown in other ways. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Reliability may be found in an informant's statement of facts as an "eyewitness." Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
The reliability standard is met where the affidavit in sufficient detail establishes that the informer is speaking with personal knowledge and relating his own participation with that of the suspects in their illegal activities. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Informer's hearsay as admission against interest. - If the informer's hearsay comes from one of the actors in the crime in the nature of an admission against interest, the affidavit giving this information should be held sufficient. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Mere allegation of informant's reliability is insufficient. - A mere allegation that the affiant has "received information from a reliable informant" has been held insufficient to show that the informant was credible, or that his information was reliable. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Where a reliable informant's information is based on personal observation and participation in the illegal activity, a neutral and detached magistrate could find that the allegations in support of the affidavit are based on fact and not upon supposition and rumor. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).
An affidavit which is merely a statement of the conclusion of the affiant, or that of the informant, that the defendant was in possession of narcotics at that time, is not a sufficient allegation of "material facts, constituting the probable cause for the issuance" of a search warrant, required by this section and the provisions of the Fourth Amendment. Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).
Affidavit need not show how informant knew substance was narcotic. - A search warrant affidavit is not insufficient because it fails to show how the informant knew that the substance that he observed was a narcotic. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).
Search warrant must describe the place to be searched. - Under the Constitution of the United States and the statutory law of Virginia it is essential to the validity of a search warrant that it describe with particularity the place to be searched. All that is required, however, is that the description be such that the officer charged with executing the search warrant can, with reasonable effort, ascertain and identify the place intended. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
A search warrant must describe with particularity the place to be searched. Brown v. Commonwealth, 212 Va. 672 , 187 S.E.2d 160 (1972).
Warrant directed against multiple-occupancy structure must describe particular subunit. - A search warrant directed against a multiple-occupancy structure is invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude search of other units located in the larger structure and occupied by innocent persons. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
As a general rule, a search warrant directed against a multiple-occupancy building will be invalidated if it fails to specify the particular subunit to be searched. Brown v. Commonwealth, 212 Va. 672 , 187 S.E.2d 160 (1972).
Or specify name of occupant. - Even though a search warrant directed against a multiple-occupancy structure fails to describe the particular subunit to be searched, it will ordinarily not be held invalid where it adequately specifies the name of the occupant of the subunit against which it is directed and provides the searching officers with sufficient information to identify, without confusion or excessive effort, such apartment unit. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Defendant must challenge the search at trial. - If a defendant wishes to preserve his right to challenge on appeal the constitutionality of a search and seizure through which certain evidence has been obtained, he must take timely steps in the lower court, either through a motion to suppress the evidence before trial or by sufficient objection to the use of the evidence when offered at trial. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
An objection that a search warrant was not supported by an affidavit as required by statute cannot be raised for the first time on appeal from a conviction. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Remedy. - Remedy for any material violation of the statutory requirements of the statute is limited to the sanction provided by the statute itself. Daniels v. Commonwealth, 69 Va. App. 422, 819 S.E.2d 870, 2018 Va. App. LEXIS 304 (2018).
Applied in Garza v. Commonwealth, 228 Va. 559 , 323 S.E.2d 127 (1984).
II. PROBABLE CAUSE.
Establishing reasonable cause. - Virginia's search and seizure statutes require the judge issuing the warrant to be satisfied that there is reasonable cause for the search. Generally, reasonable cause can be established from an affidavit, but the judge need not accept the affidavit alone, and nothing in the statutes prohibits him from conducting an adversary hearing, as the Constitution requires. Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir.), cert. denied, 396 U.S. 985, 90 S. Ct. 477, 24 L. Ed. 2d 449 (1969).
The standard for determining probable cause is probability, and not a prima facie showing, of criminal activity. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
The evidence upon which the issuance of a search warrant is based does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief. The requirement is practically the same as that contained in the Fourth Amendment of the federal Constitution. Zimmerman v. Town of Bedford, 134 Va. 787 , 115 S.E. 362 (1922); Tri-Pharmacy, Inc. v. United States, 203 Va. 723 , 127 S.E.2d 89 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963).
Search justified on grounds other than warrant. - This statute addresses the possible invalidity of a search made under a warrant as a consequence of the failure of the magistrate to file the warrant with the clerk of the circuit court; however, whatever the scope of inadmissibility contemplated by this statute for searches made under a defective warrant, nothing in the plain language of this statute compels the exclusion of evidence obtained in the course of a search that is justified on grounds other than a warrant. Commonwealth v. Campbell, 294 Va. 486 , 807 S.E.2d 735 (2017), cert. denied, 139 S. Ct. 421, 2018 U.S. LEXIS 6303, 202 L. Ed. 2d 324 (2018).
Existence of a technically defective warrant does not require suppression of evidence if the search may be justified on an independent ground. Commonwealth v. Campbell, 294 Va. 486 , 807 S.E.2d 735 (2017), cert. denied, 139 S. Ct. 421, 2018 U.S. LEXIS 6303, 202 L. Ed. 2d 324 (2018).
Sufficient underlying circumstances. - Where a neutral magistrate could determine from statements made in an affidavit that the informant was familiar with drugs and "the drug culture" whereby he could readily recognize LSD and where a common-sense reading of the affidavit as a whole revealed the address at which the drugs were located, there were sufficient underlying circumstances to enable the magistrate to judge the validity of the informant's conclusion as to the location of the contraband. Wheeler v. Commonwealth, 217 Va. 95 , 225 S.E.2d 400 (1976).
Facts in affidavit held sufficient. - Where officer failed to include in affidavit all facts verbally related to magistrate, omission did not violate requirements of this section since affidavit contained facts sufficient to support probable cause determination. Slayton v. Commonwealth, No. 0817-87-2 (Ct. of Appeals Mar. 7, 1989).
The fact that the affidavit for the search of defendant's house did not accurately describe the lots adjacent to the victim's house or state that the address of defendant's house was obtained from his DMV record was no more fatal to the warrant for the search under this section than under the Constitution. Commonwealth v. Derr, No. 0053-89-2 (Ct. of Appeals June 14, 1989).
Requirement that affidavit in support of search warrant substantially allege the offense in relation to which the search is made was satisfied where the affidavit specifically described the offenses being investigated as breaking and entering, grand larceny, and possession of stolen property; furthermore, the affidavit described the items to be searched for to include bacon and cigarettes, which were identified by quantity and name brand and stated that these items were stolen during "two business break-ins" currently under investigation; thus the affidavit substantially alleged the offenses so as to apprise adequately the defendant of the offenses and the evidence sought, and to inform those conducting the search of the items sought. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).
Magistrate had probable cause to issue a search warrant to search defendant's apartment where the affidavit supporting the warrant provided a detailed description of a confidential, reliable informant who, after giving "buy money" to an unwitting informant, saw the unwitting informant knock on defendant's door, walk in with money, and return to hand the reliable informant cocaine that was purchased. Totality of the circumstances, therefore, provided the magistrate with a substantial basis to find that probable cause justified the search. Slade v. Commonwealth, 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231 (2004).
Affidavit deficiently vague. - Search warrant was issued and executed based on an affidavit that was deficiently vague and did not support probable cause where the affidavit: (1) did not specify any dates, but merely related that an unidentified suspect told a friend, who was an unidentified informant, that the suspect traded a pistol to defendant; (2) did not disclose when the conversation occurred, when the trade occurred, or whether the trade was before or after the homicide; (3) did not assert that the pistol was ever seen in the residence searched or where the trade occurred; (4) did not disclose whether the pistol was a "nine millimeter" firearm or was believed to be capable of discharging "nine millimeter" rounds; and (5) did not allege that the traded pistol was connected with the homicide. Anzualda v. Commonwealth, 42 Va. App. 481, 592 S.E.2d 761, 2004 Va. App. LEXIS 91 (2004).
Affidavit not providing sufficient basis for finding of probable cause for issuance of search warrant. - See Riggan v. Virginia, 384 U.S. 152, 86 S. Ct. 1378, 16 L. Ed. 2d 431 (1966); Morris v. Commonwealth, 208 Va. 331 , 157 S.E.2d 191 (1967).
Affidavit incomplete. - Trial court erred in denying defendant's motion to suppress, because an incomplete affidavit was filed that did not contain a sworn statement of material facts constituting probable cause as required by this section, which was not the same one upon which the determination of probable cause was based, and the Commonwealth was unable to produce the original affidavit certified by the magistrate. Campbell v. Commonwealth, 66 Va. App. 677, 791 S.E.2d 351 (2016), rev'd on other grounds by 294 Va. 486 , 807 S.E.2d 735 (2017).
Magistrate considered facts contained in several affidavits. - A magistrate did not violate this section when she considered the collective facts contained in several affidavits submitted at different times in the course of an on-going investigation in determining probable cause to search. Derr v. Commonwealth, 410 Va. 662 , 410 S.E.2d 662 (1991).
Exigent circumstances. - In a case in which defendant was convicted of possession with the intent to distribute methamphetamine, the warrantless search of defendant's property was justified based on exigent circumstances. Campbell v. Commonwealth, 69 Va. App. 217, 817 S.E.2d 663, 2018 Va. App. LEXIS 230 (2018).
Evidence inadmissible. - The evidence obtained as a result of a search warrant issued upon an insufficient affidavit was inadmissible. Wiles v. Commonwealth, 209 Va. 282 , 163 S.E.2d 595 (1968).
Where the affidavit fails to uphold a determination of probable cause, then such failure renders the warrant void and the search illegal and any evidence secured through an illegal search becomes inadmissible at trial. Drumheller v. Commonwealth, 223 Va. 695 , 292 S.E.2d 602, cert. denied, 459 U.S. 913, 103 S. Ct. 224, 74 L. Ed. 2d 178 (1982).
State procedural requirements must be respected in determining whether a state criminal conviction is constitutionally permissible because of the admission of evidence obtained as a result of an illegal search and seizure. Manley v. Commonwealth, 211 Va. 146 , 176 S.E.2d 309 (1970), cert. denied, 403 U.S. 936, 91 S. Ct. 2245, 29 L. Ed. 2d 716 (1971).
Plain view exception. - Trial court erred in suppressing evidence pertaining to defendant's indictment for unlawful possession of controlled substances where a police officer lawfully seized ammunition under a search warrant for a gun, the officer was in a lawful position to view the crack pipe and the bottles of prescription drugs, and therefore, lawfully seized the crack pipe and drugs under the plain view doctrine. Commonwealth v. Marek, No. 2123-02-4, 2003 Va. App. LEXIS 46 (Ct. of Appeals Feb. 5, 2003).
"Good faith" exception. - The Supreme Court of Virginia embraces the "good faith" exception to the exclusionary rule. McCary v. Commonwealth, 228 Va. 219 , 321 S.E.2d 637 (1984).
Trial court did not err in denying defendant's motion to suppress evidence seized as a result of a search warrant, where despite the fact that the affidavit supporting the same failed to provide the issuing magistrate with a substantial basis for concluding that probable cause to search defendant's home existed to issue said warrant, officers possessed an objectively reasonable belief in the existence of probable cause, namely, that the fruits of criminal activity would probably be found at defendant's residence, for the good faith exception to the exclusionary rule to apply. Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E.2d 749, 2005 Va. App. LEXIS 88 (2005).
Trial court properly denied defendant's motion to suppress despite the fact that the affidavit in support of the search warrant may have been stale, because the officers conducting the search did so in good-faith reliance on the validity of the warrant. The officer who executed the warrant testified that, based on the officer's experience and training, the officer knew that individuals who possess, manufacture, or distribute child pornography were collectors and tended to keep their collection and thus, the officer was not unreasonable in believing that there was probable cause that the images downloaded 16 months earlier could still have been in defendant's possession. Midkiff v. Commonwealth, 54 Va. App. 323, 678 S.E.2d 287, 2009 Va. App. LEXIS 294 (2009), aff'd, 280 Va. 216 , 694 S.E.2d 576, 2010 Va. LEXIS 61 (2010).
Filing of affidavits was appropriate. - Filing of affidavits required by this section in the City of Danville, rather than defendant's residence of Pittsylvania County, was appropriate where the Circuit Court of the City of Danville, pursuant to § 19.2-250 , had jurisdiction over the crime and the area where the search was made. Robertson v. Rogers, 2 Va. App. 503, 346 S.E.2d 41 (1986), aff'd, 360 S.E.2d 715 (1987).
Insufficient probable cause for search warrant. - Although a search warrant was facially valid, given the informant's motive to lie and the absence of evidence corroborating his allegations or establishing his reliability in some other way, probable cause was lacking; therefore, defendant's motion to suppress was properly granted. Commonwealth v. Thomas,, 2011 Va. App. LEXIS 267 (Aug. 16, 2011).
CIRCUIT COURT OPINIONS
Search warrant must describe the place to be searched. - Where the description of the unit to be searched in a warrant directly conflicted with its actual location, there was insufficient evidence for the police to determine which unit to search; as a result, defendant was entitled to suppress the evidence found. Commonwealth v. Carr, 61 Va. Cir. 491, 2003 Va. Cir. LEXIS 224 (Charlottesville 2003).
Oral statement sufficient to provide information supporting probable cause. - Sworn statement, taken together with a written affidavit, supported a magistrate's finding of probable cause to issue a search warrant since U.S. Const., Amend. IV, did not require that the sworn statement be written; also, there was a nexus between drugs and defendant's home where a credible informant alleged that he purchased drugs there the previous day. Since the search warrant was properly supported, firearms found on defendant in a search of his home were not suppressed. Commonwealth v. Alger, 66 Va. Cir. 332, 2005 Va. Cir. LEXIS 37 (Page County Jan. 18, 2005).
Insufficient probable cause for search warrant. - Magistrate did not have a substantial basis for finding probable cause to issue a search warrant where the affidavit simply stated that the informant observed stolen property in defendant's residence and included no information as to when the informant observed the stolen property, what specific items of stolen property the informant observed, or how the informant knew that the property was stolen. Commonwealth v. Fuller, 78 Va. Cir. 385, 2009 Va. Cir. LEXIS 167 (Norfolk June 17, 2009).
OPINIONS OF THE ATTORNEY GENERAL
Airport searches. - Fourth Amendment protections are rights attaching to persons that can be asserted only by them either directly or through an association. The Attorney General lacks standing to bring suit against the federal government claiming a violation of the Fourth Amendment for searches conducted at airports. See opinion of Attorney General to The Honorable Robert B. Bell, Member, House of Delegates, 12-046, 2012 Va. AG LEXIS 27 (6/29/2012).
§ 19.2-55. Issuing general search warrant or search warrant without affidavit deemed malfeasance.
Any person having authority to issue criminal warrants who wilfully and knowingly issues a general search warrant or a search warrant without the affidavit required by § 19.2-54 shall be deemed guilty of a malfeasance.
(Code 1950, § 19.1-89; 1960, c. 366; 1975, c. 495.)
§ 19.2-56. To whom search warrant directed; what it shall command; warrant to show date and time of issuance; copy of affidavit to be part of warrant and served therewith; warrants not executed within 15 days.
- The judge, magistrate, or other official authorized to issue criminal warrants, shall issue a search warrant only if he finds from the facts or circumstances recited in the affidavit that there is probable cause for the issuance thereof. Every search warrant shall be directed (i) to the sheriff, sergeant, or any policeman of the county, city, or town in which the place to be searched is located; (ii) to 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 and Firearms 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 Service, or the Drug Enforcement Administration. The warrant shall (a) name the affiant, (b) recite 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 the search is to be made, (c) name or describe the place to be searched, (d) describe the property or person to be searched for, and (e) 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. The warrant shall command that the place be forthwith searched and that the objects or persons described in the warrant, if found there, be seized. An inventory shall be produced before a court having jurisdiction of the offense or over the person to be arrested for whom a warrant or process for arrest has been issued in relation to which the warrant was issued as provided in § 19.2-57 . Any such warrant as provided in this section shall be executed by the policeman or other law-enforcement officer or agent into whose hands it shall come or be delivered. If the warrant is directed jointly to a sheriff, sergeant, policeman, or law-enforcement officer or agent of the Commonwealth and a federal agent or officer as otherwise provided in this section, the warrant may be executed jointly or by the policeman, law-enforcement officer, or agent into whose hands it is delivered. No other person may be permitted to be present during or participate in the execution of a warrant to search a place except (1) the owners and occupants of the place to be searched when permitted to be present by the officer in charge of the conduct of the search and (2) persons designated by the officer in charge of the conduct of the search to assist or provide expertise in the conduct of the search. Any search warrant for records or other information pertaining to a subscriber to, or customer of, an electronic communication service or remote computing service, whether a domestic corporation or foreign corporation, that is transacting or has transacted any business in the Commonwealth, to be executed upon such service provider may be executed within or outside the Commonwealth by hand, United States mail, commercial delivery service, facsimile, or other electronic means upon the service provider. Notwithstanding the provisions of § 19.2-57 , the officer executing a warrant pursuant to this paragraph shall endorse the date of execution thereon and 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 materials ordered to be produced are received by the officer from the service provider. The return shall be made in the circuit court clerk's office for the jurisdiction wherein the warrant was (A) executed, if executed within the Commonwealth, and a copy of the return shall also be delivered to the clerk of the circuit court of the county or city where the warrant was issued or (B) issued, if executed outside the Commonwealth. Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. Electronic communication service or remote computing service providers, whether a foreign or domestic corporation, shall also provide the contents of electronic communications pursuant to a search warrant issued under this section and § 19.2-70.3 using the same process described in the preceding paragraph. Notwithstanding the provisions of § 19.2-57, any search warrant for records or other information pertaining to a customer of a financial institution as defined in § 6.2-604 , money transmitter as defined in § 6.2-1900 , commercial business providing credit history or credit reports, or issuer as defined in § 6.2-424 may be executed within the Commonwealth by hand, United States mail, commercial delivery service, facsimile, or other electronic means upon the financial institution, money transmitter, commercial business providing credit history or credit reports, or issuer. The officer executing such warrant shall endorse the date of execution thereon and 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 materials ordered to be produced are received by the officer from the financial institution, money transmitter, commercial business providing credit history or credit reports, or issuer. The return shall be made in the circuit court clerk's office for the jurisdiction wherein the warrant was executed. Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. For the purposes of this section, the warrant will be considered executed in the jurisdiction where the entity on which the warrant is served is located. Every search warrant shall contain the date and time it was issued. However, the failure of any such search warrant to contain the date and time it was issued shall not render the warrant void, provided that the date and time of issuing of said warrant is established by competent evidence. The judge, magistrate, or other official authorized to issue criminal warrants shall attach a copy of the affidavit required by § 19.2-54 , which shall become a part of the search warrant and served therewith. However, this provision shall not be applicable in any case in which the affidavit is made by means of a voice or videotape recording or where the affidavit has been sealed pursuant to § 19.2-54 . Any search warrant not executed within 15 days after issuance thereof shall be returned to, and voided by, the officer who issued such search warrant.
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No law-enforcement officer shall seek, execute, or participate in the execution of a no-knock search warrant. A search warrant for any place of abode authorized under this section shall require that a law-enforcement officer be recognizable and identifiable as a uniformed law-enforcement officer and provide audible notice of his authority and purpose reasonably designed to be heard by the occupants of such place to be searched prior to the execution of such search warrant.
After entering and securing the place to be searched and prior to undertaking any search or seizure pursuant to the search warrant, the executing law-enforcement officer shall give a copy of the search warrant and affidavit to the person to be searched or the owner of the place to be searched or, if the owner is not present, to any occupant of the place to be searched. If the place to be searched is unoccupied, the executing law-enforcement officer shall leave a copy of the search warrant and affidavit in a conspicuous place within or affixed to the place to be searched.
Search warrants authorized under this section 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 at another time, unless circumstances require the issuance of the warrant after 5 p.m., pursuant to the provisions of this subsection, 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.
Any evidence obtained from a search warrant executed in violation of this subsection shall not be admitted into evidence for the Commonwealth in any prosecution.
- For the purposes of this section: "Foreign corporation" means any corporation or other entity, whose primary place of business is located outside of the boundaries of the Commonwealth, that makes a contract or engages in a terms of service agreement with a resident of the Commonwealth to be performed in whole or in part by either party in the Commonwealth, or a corporation that has been issued a certificate of authority pursuant to § 13.1-759 to transact business in the Commonwealth. The making of the contract or terms of service agreement or the issuance of a certificate of authority shall be considered to be the agreement of the foreign corporation or entity that a search warrant or subpoena, which has been properly served on it, has the same legal force and effect as if served personally within the Commonwealth. "Properly served" means delivery of a search warrant or subpoena by hand, by United States mail, by commercial delivery service, by facsimile or by any other manner to any officer of a corporation or its general manager in the Commonwealth, to any natural person designated by it as agent for the service of process, or if such corporation has designated a corporate agent, to any person named in the latest annual report filed pursuant to § 13.1-775 . (Code 1950, § 19.1-86; 1960, c. 366; 1968, c. 572; 1975, c. 495; 1977, c. 289; 1979, c. 584; 1980, c. 573; 1981, c. 559; 1984, cc. 491, 598; 1988, c. 50; 1989, c. 719; 2000, c. 783; 2001, cc. 183, 205; 2007, c. 416; 2009, c. 725; 2015, cc. 75, 126; 2017, cc. 228, 233, 242, 641; 2018, c. 410; 2020, Sp. Sess. I, cc. 31, 37; 2021, Sp. Sess. I, c. 34.)
Editor's note. - Acts 2020 Sp. Sess. I, c. 37, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2000 amendments. - The 2000 amendment by c. 783 added the last sentence in the fourth paragraph.
The 2001 amendments. - The 2001 amendment by cc. 183 and 205 are identical, and, in the second paragraph, in clause (iii) of the first sentence, inserted "special agent" and inserted "the United States Naval Criminal Investigative Service."
The 2007 amendments. - The 2007 amendment by c. 416 substituted "15 days" for "fifteen days" in the section catchline and the last paragraph and inserted "the United States Department of Homeland Security, any inspector, law-enforcement official or police personnel of the United States Postal Inspection Service," in clause (iii) in the first sentence of the second paragraph.
The 2009 amendments. - The 2009 amendment by c. 725 added the fifth, sixth, tenth, eleventh, and twelfth paragraphs.
The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and deleted "Inspection" following "United States Postal" in the first sentence in the second paragraph.
The 2017 amendments. - The 2017 amendments by cc. 228 and 641 are identical, and in the second paragraph, redesignated clauses (i) through (v) as clauses (a) through (e) in the second sentence; in the fourth paragraph, redesignated clauses (i) and (ii) as clauses (1) and (2) in the second sentence; and inserted the seventh paragraph.
The 2017 amendments by cc. 233 and 242 are identical, and in the second sentence of the second paragraph, redesignated clauses (i) through (v) as (a) through (e), inserted "or the identity of the person to be arrested for whom a warrant or process for arrest has been issued" in clause (b), and added "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" in clause (e); inserted "or over the person to be arrested for whom a warrant or process for arrest has been issued" in the second sentence of the third paragraph; and redesignated clauses (i) and (ii) as clauses (1) and (2) in the third sentence of the fourth paragraph.
The 2018 amendments. - The 2018 amendment by c. 410, in the fifth paragraph, substituted "outside the Commonwealth" for "without the Commonwealth" in the first sentence and substituted "(A) executed, if executed within the Commonwealth, and a copy of the return shall also be delivered to the clerk of the circuit court of the county or city where the warrant was issued; or (B) issued, if executed outside the Commonwealth" for "issued" in the third sentence.
The 2020 Sp. Sess. I amendments. - The 2020 amendments by Sp. Sess. I, cc. 31 and 37, effective March 1, 2021, are identical, designated the existing text as subsections A and C, and added subsection B; in subsection A, deleted "either in day or night" following "forthwith searched" in the third paragraph; and made stylistic changes.
The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 34, effective March 1, 2021, inserted "only" in the first paragraph in subsection A, and in subsection B, in the first paragraph, inserted "for any place of abode" and substituted "designed to be heard by the" for "expected to be heard" in the second sentence; in the second paragraph, substituted "give a copy of the search warrant and affidavit" for "read and give a copy of the search warrant" and "and affidavit in a conspicuous place within or" for "suitably"; rewrote the third paragraph, which read "Search warrants authorized under this section shall be executed only in the daytime unless (i) a judge or magistrate, if a judge is not available, authorizes the execution of such search warrant at another time for good cause shown or (ii) the search warrant is for the withdrawal of blood. A search warrant for the withdrawal of blood may be executed at any time of day."; in the fourth paragraph, inserted "unless circumstances require the issuance of the warrant after 5 p.m., pursuant to the provisions of this subsection, in which case the law-enforcement officer may seek such authorization from a magistrate without first making reasonable efforts to locate a judge"; and, in the last paragraph, inserted "executed."
Law review. - For comment on the reasonableness of no knock entry when exigencies are present, see 7 U. Rich. L. Rev. 565 (1973). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia law on arrests in private dwellings for the year 1979-1980, see 67 Va. L. Rev. 275 (1981).
Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 240; 16 M.J. Searches and Seizures, §§ 7, 8.
CASE NOTES
Requirements same as those of Fourth Amendment. - The requirements of the Virginia statutes controlling the issuance of search warrants and forbidding searches without a warrant ( §§ 19.2-54 and 19.2-56 ) are in substance the same as those contained in the Fourth Amendment. Kirby v. Commonwealth, 209 Va. 806 , 167 S.E.2d 411 (1969).
"Probable cause" defined. - Probable cause exists where the totality of the circumstances set forth in the affidavit supports a common sense decision by the magistrate that there is a fair probability that contraband or evidence of a crime will be found in a particular place. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).
Because probable cause is a fluid concept based on probabilities, the continued existence of probable cause at a particular time is dependent upon the circumstances. So long as probable cause continues to exist, the search will be valid. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).
Facts must be closely related to time of issuance of warrant. - Virginia's statutes fix no maximum time interval between the date of the events and circumstances recited in the affidavit and the date of the affidavit and issuance of the warrant. However, the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Huff v. Commonwealth, 213 Va. 710 , 194 S.E.2d 690 (1973).
When a warrant has been issued based upon probable cause, whether probable cause continues to exist at the time the warrant is executed depends on the length of delay and the nature of the observed criminal activity, that is, whether the activity is an ongoing enterprise or an isolated incident. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).
The fact that the officers delay executing a search warrant until a time the officer determines will be most opportune to yield a successful result does not invalidate the warrant so long as probable cause continued to exist at the time of execution. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).
Sufficient probable cause for issuance of search warrant. - Motion to suppress evidence that was found in a search of defendant's home was denied because a police detective's affidavit, which was based upon the observations of the detective and another police detective and a confidential informant as to drug transactions occurring in defendant's home, presented sufficient probable cause for issuance of a search warrant. Hicks v. Commonwealth, 281 Va. 353 , 706 S.E.2d 339, 2011 Va. LEXIS 44 (2011).
The provision in this section that a search warrant be executed "forthwith" is a directive to police officers to execute the warrant with reasonable dispatch and without undue delay. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).
"Forthwith" requirement complied with. - Under the circumstances of this case, the police officers, by waiting 11 days to execute the warrant, did not violate the "forthwith" provision of the statute or the Fourth Amendment. The officers executed the warrant as soon as reasonably practicable under the circumstances. The warrant identified both a residence and its occupants as targets to be searched. The officers checked the residence at least six times, only to find the person who was also the object of the search not present. Immediately after learning that the described occupant had returned, the officers executed the search warrant. Based on these circumstances, the officers executed the warrant as soon as reasonably practicable and, thus, that they complied with the directory component of the "forthwith" language in this section. Turner v. Commonwealth, 14 Va. App. 737, 420 S.E.2d 235 (1992).
Statutory requirement that search warrant be executed "forthwith" was satisfied where warrant was executed five days after issuance; the search was delayed to permit the warrant to be executed concurrently with search warrant for another apartment in same building; there was no basis for deeming that circumstances providing probable cause for search had grown stale by time warrant was executed. Commonwealth v. Moss, 14 Va. App. 750, 420 S.E.2d 242 (1992).
A six-day delay between a warrant's issuance and its execution did not violate the "forthwith" requirement of § 19.2-56 , where the delay did not, standing alone, vitiate the reasonable belief that contraband would still be on the premises six days later, the description of the quantity of the remaining drugs as significant enough for continued sale suggested a continuing enterprise, defendant was absent from the premises the entire six days, and officers were informed that defendant kept two attack dogs in the house. Whitaker v. Commonwealth, 37 Va. App. 21, 553 S.E.2d 539, 2001 Va. App. LEXIS 568 (2001).
In a criminal prosecution for possession with intent to distribute crack cocaine, the district court denied defendant's motion to suppress evidence seized subsequent to the execution of search warrants. The ten-day delay in service of the warrants was within the time limits set forth in § 19.2-56 . United States v. Davis, 276 F. Supp. 2d 522, 2003 U.S. Dist. LEXIS 13834 (E.D. Va. 2003).
Lapse of 11 days between when the search warrants were obtained and when they were executed did not violate defendant's rights under this section or the Fourth Amendment since the lapse was due to the officer's competing law-enforcement interests and there was no evidence that probable cause had dissipated by the time the warrants were executed. Maye v. Commonwealth, 44 Va. App. 463, 605 S.E.2d 353, 2004 Va. App. LEXIS 590 (2004).
Motion to suppress evidence that was found in a search of defendant's home was denied because the warrant was timely executed 13 days after its issuance pursuant to § 19.2-56 , and the search was conducted forthwith in compliance with the requirements of § 19.2-56 and the Fourth Amendment. Hicks v. Commonwealth, 281 Va. 353 , 706 S.E.2d 339, 2011 Va. LEXIS 44 (2011).
Scope of search not exceeded. - Defendant's motion to suppress was properly denied; a safe located during a search of his residence was in plain view, and officers could reasonably expect to find the items listed on a search warrant within the safe. The officers did not exceed the scope of the search authorized by the warrant by delaying some fifteen days to open the safe after it was seized and removed to police property. Dotson v. Commonwealth, 47 Va. App. 237, 623 S.E.2d 414, 2005 Va. App. LEXIS 514 (2005).
Where defendant conceded that probable cause to search an apartment still existed when an "all persons present" warrant was executed at an apartment twelve days after its issuance, the court assumed that the warrant was lawfully issued and a presumption of validity attached to the search. Felton v. Commonwealth, 56 Va. App. 43, 690 S.E.2d 318, 2010 Va. App. LEXIS 128 (2010).
"No knock entry." - In Virginia there is no specific statute relating to "no knock entry" in executing a search warrant. The court must therefore consider whether an unannounced search is reasonable within the meaning of the Fourth Amendment to the United States Constitution and the Constitution of Virginia. Johnson v. Commonwealth, 213 Va. 102 , 189 S.E.2d 678 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 918, 34 L. Ed. 2d 700 (1973).
Under Virginia law, the authority to effect a no-knock entry stems from exigent circumstances reasonably appearing to the officers to be in existence at the time the entry is made, and not at the time the warrant is obtained; thus, under Virginia law a magistrate lacks authority to "command" a no-knock entry in advance of the entry. Fenner v. Dawes, 748 F. Supp. 404 (E.D. Va. 1990).
Recitation of offense. - A search warrant sufficiently recites the offense if it is attached to an affidavit which specifies the offense to which the warrant pertains; however, a search warrant does not recite the offense and is fatally defective where the evidence establishes that the deficient warrant and affidavit that did recite the offense were not attached until after the execution of the search warrant. Lebedun v. Commonwealth, No. 0233-97-4 (Ct. of Appeals July 7, 1998).
Failure of warrant to state offense. - Items seized pursuant to a search warrant were inadmissible into evidence because of the failure of the warrant to state the offense in relation to which the search was to be conducted, despite the fact that the affidavit contained the offense in relation to which the search was to be conducted, where the affidavit was not attached to the warrant until after the search warrant had been executed and the disputed items seized. Gilluly v. Commonwealth, 221 Va. 38 , 267 S.E.2d 105 (1980).
The failure of a warrant to state the related offense renders the warrant fatally defective and the evidence seized in the execution of the warrant inadmissible. Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998).
Where a search is conducted pursuant to a judicially sanctioned warrant, the defendant must rebut the presumption of validity by proving that the warrant is illegal or invalid. Thus, where a warrant failed to recite the offense, the burden was on the defendant to prove that the affidavit, which expressly stated that the search pertained to charges of robbery and abduction, was not attached to the deficient warrant at the time the search occurred. Lebedun v. Commonwealth, 27 Va. App. 697, 501 S.E.2d 427 (1998).
Additional seizures under warrant. - Where appellant's address was identified in the warrant as the place to be searched, and "marijuana" was specified as the item to be seized, a search was not invalid merely because officers seized items not named in the warrant. Cherry v. Commonwealth, 21 Va. App. 132, 462 S.E.2d 574 (1995).
Applied in United States v. Belcher, 577 F. Supp. 1241 (E.D. Va. 1983).
CIRCUIT COURT OPINIONS
When a warrant has been issued based upon probable cause, whether probable cause continues to exist. - When a search warrant was used based upon probable cause, whether probable cause continued to exist at the time the warrant was executed depended on the length of delay after the warrant was issued and the nature of the observed criminal activity, that is whether the activity was an ongoing enterprise or an isolated incident. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).
The "forthwith" requirement. - By establishing a 15-day limitation period in § 19.2-56 , the General Assembly did not intend to provide that search warrants executed within that time were conclusively presumed to have been executed timely, as such an interpretation would render the "forthwith" language of the statute meaningless, a result that could not be attributed to the legislature, and "forthwith," within the context of § 19.2-56 , did not mean immediately or as soon as physically possible; the fact that the statute provided that the warrant expired if not executed within 15 days meant that some latitude was provided for the time within which the search could be conducted. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).
Under § 19.2-56 , it was necessary that search warrants be executed with some promptness in order to lessen the possibility that the facts upon which probable cause was initially based did not become dissipated, and the statute included a codification of the constitutional requirement that a search must be conducted while probable cause continued to exist, but it went beyond that as the "forthwith" requirement defined the policy of the state that search warrants, which were the foremost safeguard to protect against unreasonable searches proscribed by the Fourth Amendment, were to be executed with reasonable dispatch. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).
Various relevant considerations to whether a search warrant was executed "forthwith" could include the safety of the officers executing the warrant, the safety of others in the area and other competing law-enforcement interests which precluded immediate execution of the warrant. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).
Forthwith standard complied with. - Where police waited five days from the issuance of a search warrant before executing it in order to wait for defendant to obtain a new supply of drugs, the warrant was executed in accordance with the forthwith standard under § 19.2-56 , because defendant was engaged in an ongoing drug sale enterprise, and the delay was reasonable, as it gave the officers a more favorable chance of obtaining better results. Commonwealth v. Prosser,, 1999 Va. Cir. LEXIS 767 (Newport News Dec. 16, 1999).
Despite an eight-day delay in executing a search warrant, its underlying probable cause was not stale because it suggested a continuing enterprise of drug sales; because no constitutional violation existed and defendant was not prejudiced, defendant's motion to suppress was denied. Commonwealth v. Roy, 55 Va. Cir. 299, 2001 Va. Cir. LEXIS 522 (Richmond 2001).
Officers did not execute a search warrant "forthwith," as required by § 19.2-56 , when the delay was attributed to assisting security in a courtroom, moving office furniture, and being off duty for a few days, and no reason was given why other officers could not have served the warrant, nor was an unusual amount of official business shown. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).
Limitations period. - Where the search warrant was executed five days after it was issued, the search warrant was executed within the 15-day limitations period under § 19.2-56 and the 10-day limitations period under Fed. R. Crim. P. 41(c)(1). Commonwealth v. Prosser,, 1999 Va. Cir. LEXIS 767 (Newport News Dec. 16, 1999).
Suppression of evidence. - Violation of the requirement of § 19.2-56 that a search warrant be executed "forthwith" warranted suppression of any evidence seized only where defendant could show prejudice attributable to the unreasonable delay. Commonwealth v. Robinson,, 2002 Va. Cir. LEXIS 274 (Newport News May 6, 2002).
§ 19.2-56.1. Warrant issued for search of attorney's office.
- Any warrant sought for the search of a premises or the contents thereof belonging to or under the control of any licensed attorney-at-law to search for evidence of any crime solely involving a client of such attorney shall be issued only by a circuit court judge. Any evidence seized pursuant to this section shall be inventoried forthwith by the clerk of the issuing court and sealed by the issuing judge. As soon thereafter as is practicable, the issuing judge shall conduct an in camera inspection of the seized evidence in the presence of the attorney from whom the evidence was seized. Following such inspection the issuing judge shall return any evidence so seized which is determined to be within the scope of the attorney-client privilege and not otherwise subject to seizure.
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Nothing herein shall bar the standing of the client to challenge the admissibility of any evidence seized pursuant to this section in any trial or proceeding.
(1986, c. 636.)
§ 19.2-56.2. Application for and issuance of search warrant for a tracking device; installation and use.
- As used in this section, unless the context requires a different meaning: "Judicial officer" means a judge, magistrate, or other person authorized to issue criminal warrants. "Law-enforcement officer" shall have the same meaning as in § 9.1-101 . "Tracking device" means an electronic or mechanical device that permits a person to remotely determine or track the position or movement of a person or object. "Tracking device" includes devices that store geographic data for subsequent access or analysis and devices that allow for the real-time monitoring of movement. "Use of a tracking device" includes the installation, maintenance, and monitoring of a tracking device but does not include the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images.
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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 law-enforcement officer shall submit an affidavit, which may be filed by electronically transmitted (i) facsimile process or (ii) electronic record as defined in § 59.1-480, and shall include:
- The identity of the applicant and the identity of the law-enforcement agency conducting the investigation;
- The identity of the vehicle, container, item, or object to which, in which, or on which the tracking device is to be attached, placed, or otherwise installed; the name of the owner or possessor of the vehicle, container, item, or object described, if known; and the jurisdictional area in which the vehicle, container, item, or object described is expected to be found, if known;
- Material facts constituting the probable cause for the issuance of the search warrant and alleging substantially the offense in relation to which such tracking device is to be used and a showing that probable cause exists that the information likely to be obtained will be evidence of the commission of such offense; and
- The name of the county or city 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.
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- If the judicial officer finds, based on the affidavit submitted, that there is probable cause to believe that a crime has been committed, is being committed, or will be committed and that there is probable cause to believe the information likely to be obtained from the use of the tracking device will be evidence of the commission of such offense, the judicial officer shall issue a search warrant authorizing the use of the tracking device. The search warrant shall authorize the use of the tracking device from within the Commonwealth to track a person or property for a reasonable period of time, not to exceed 30 days from the issuance of the search warrant. The search warrant shall authorize the collection of the tracking data contained in or obtained from the tracking device but shall not authorize the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images. C. 1. If the judicial officer finds, based on the affidavit submitted, that there is probable cause to believe that a crime has been committed, is being committed, or will be committed and that there is probable cause to believe the information likely to be obtained from the use of the tracking device will be evidence of the commission of such offense, the judicial officer shall issue a search warrant authorizing the use of the tracking device. The search warrant shall authorize the use of the tracking device from within the Commonwealth to track a person or property for a reasonable period of time, not to exceed 30 days from the issuance of the search warrant. The search warrant shall authorize the collection of the tracking data contained in or obtained from the tracking device but shall not authorize the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images.
- 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 or his designee or agent 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 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.
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- The search warrant shall command the law-enforcement officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant. D. 1. The search warrant shall command the law-enforcement officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant.
- The law-enforcement officer executing the search warrant shall enter on it the exact date and time the device was installed and the period during which it was used.
- Law-enforcement officers shall be permitted to monitor the tracking device during the period authorized in the search warrant, unless the period is extended as provided for in this section.
- Law-enforcement officers shall remove the tracking device as soon as practical, but not later than 10 days after the use of the tracking device has ended. Upon request, and for good cause shown, the circuit court may grant one or more extensions for such removal for a period not to exceed 10 days each.
- In the event that law-enforcement officers are unable to remove the tracking device as required by subdivision 4, the law-enforcement officers shall disable the device, if possible, and all use of the tracking device shall cease.
- 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.
- Within 10 days after the use of the tracking device has ended, a copy of the executed search warrant shall be served on the person who was tracked and the person whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked or by leaving a copy with any individual found at the person's usual place of abode who is a member of the person's family, other than a temporary sojourner or guest, and who is 16 years of age or older and by mailing a copy to the person's last known address. Upon request, and for good cause shown, the circuit court may grant one or more extensions for such service for a period not to exceed 30 days each. Good cause shall include, but not be limited to, a continuing criminal investigation, the potential for intimidation, the endangerment of an individual, or the preservation of evidence.
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The disclosure or publication, without authorization of a circuit court, by a court officer, law-enforcement officer, or other person responsible for the administration of this section of the existence of a search warrant issued pursuant to this section, application for such search warrant, any affidavit filed in support of such warrant, or any return or data obtained as a result of such search warrant that is sealed by operation of law is punishable as a Class 1 misdemeanor.
(2012, cc. 636, 679; 2018, cc. 84, 215.)
Editor's note. - Acts 2012, cc. 636 and 679, cl. 2 provides: "That an emergency exists and this act is in force from its passage." Acts 2012, c. 636 was approved April 5, 2012, and Acts 2012, c. 679 was approved April 6, 2012.
The 2018 amendments. - The 2018 amendments by cc. 84 and 215 are identical, and in subdivision C 2, inserted "or his designee or agent" in the second sentence.
Law review. - For article, "Data Collection and Advancements in Surveillance Techniques: Digital Technology and Analog Law: Cellular Location Data, the Third-Party Doctrine, and the Law's Need to Evolve," see 51 U. Rich. L. Rev. 773 (2017).
CASE NOTES
Reattached GPS device. - Evidence from a reattached GPS tracking device was admissible because (1) the device's reattachment was part of one search within the scope of a warrant issued pursuant to § 19.2-56.2 , (2) probable cause and good cause supported the warrant's extension under subsection E of § 19.2-56.2 , and (3) an extension for "good cause" was not unconstitutional as probable cause supported the original warrant. Turner v. Commonwealth, 65 Va. App. 312, 777 S.E.2d 569, 2015 Va. App. LEXIS 301 (2015).
§ 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 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 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.
(Code 1950, § 19.1-87.1; 1970, c. 416; 1973, c. 11; 1975, c. 495; 1976, cc. 142, 552; 1977, c. 109; 1980, c. 573; 1984, c. 491; 2008, cc. 147, 183.)
The 2008 amendments. - The 2008 amendments by cc. 147 and 183 are identical, and substituted "is found" for "be found" in the first sentence and "the circuit court of the county or city where the search was conducted" for "the court designated in the warrant" in the third sentence; inserted "the officer or his designee" in the fourth sentence; and added the last sentence.
CASE NOTES
Addendum to inventory filed satisfied requirements of this section. - Although deputy sheriff had to supplement, original inventory and return were filed within three days after execution of the search warrant, as required by the terms of this section, thus defendant's contention in requiring property seized in the inventory that was filed with the return had no basis, for this section does not prohibit filing of an addendum to inventory where filing of the original inventory been satisfied. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).
Defendant not entitled to suppression of evidence. - Even if the filing of the inventory and return was not in compliance with this section, defendant was not entitled to suppression of evidence seized from his home, for this section regarding the filing of inventory after execution of warrant did not expressly command the suppression or exclusion of evidence for a violation of this section; and moreover, the defendant did not allege that his constitutional rights were violated. West v. Commonwealth, 16 Va. App. 679, 432 S.E.2d 730 (1993).
Although two seized documents were omitted from the inventory prepared and filed by police officer, noncompliance with this section did not require suppression of the remaining documents. Spivey v. Commonwealth, 23 Va. App. 715, 479 S.E.2d 543 (1997), overruled on other grounds, Henry v. Commonwealth, 32 Va. App. 547, 529 S.E.2d 796 (2000).
§ 19.2-58. Disposition of property seized.
If any such warrant be executed by the seizure of property, or of any other of the things aforesaid, the same shall be safely kept by the direction of such judge or court, to be used as evidence, and thereafter be disposed of as provided by law; provided, however, that any such property seized under such warrant which is not used in evidence and any property which is stolen or embezzled property shall be restored to its owner, and the things mentioned in § 19.2-53 may be burnt or otherwise destroyed, under such direction, as soon as there is no further need for its use as evidence unless it is otherwise expressly provided by law.
(Code 1950, § 19.1-87; 1960, c. 366; 1975, c. 495.)
Research References. - Virginia Forms (Matthew Bender). No. 9-1612. Motion for Inspection of Seized Items.
CASE NOTES
Transfer of evidence to federal authorities. - Defendant's motion to suppress evidence was properly denied; although defendant's property was transferred to federal authorities, it never lost its status as evidence, and defendant failed to formally move for the return of his property as required by §§ 19.2-58 and 19.2-60 , so defendant's prostitution-related convictions were appropriate. United States v. Jenkins, 149 Fed. Appx. 129, 2005 U.S. App. LEXIS 18376 (4th Cir. Aug. 25, 2005), cert. denied, 546 U.S. 1120, 126 S. Ct. 1092, 163 L. Ed. 2d 907 (2006).
§ 19.2-59. Search without warrant prohibited; when search without warrant lawful.
No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer. Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.
Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.
(Code 1950, § 19.1-88; 1960, c. 366; 1975, c. 495; 1976, c. 293; 1978, c. 721; 1997, c. 147.)
Law review. - For note, "Arson Investigations and the Fourth Amendment," see 30 Wash. & Lee L. Rev. 133 (1973). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For comment on warrantless searches of automobiles in Virginia, see 12 U. Rich. L. Rev. 563 (1978). For article, "Warrantless Searches and Seizures in Virginia," see 17 U. Rich. L. Rev. 721 (1983). For article, "Unreasonable Searches and Seizures of Papers," see 71 Va. L. Rev. 869 (1985).
For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).
CASE NOTES
Section affords Fourth Amendment protection. - This section affords in substance only the same protection as that afforded by the Fourth Amendment. Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969); Thompson v. Slayton, 334 F. Supp. 352 (W.D. Va. 1971).
This section was originally enacted during prohibition in response to widespread complaints concerning unreasonable searches. The statute protects against unreasonable searches and seizures, which are forbidden by the common law, and by the Fourth Amendment which is but declaratory of the common law on the subject. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).
This section provides the same protection as the Fourth Amendment of the Constitution of the United States. Amato v. City of Richmond, 875 F. Supp. 1124 (E.D. Va. 1994), aff'd, 78 F.3d 578 (4th Cir. 1996), cert. denied, 519 U.S. 862, 117 S. Ct. 167, 136 L. Ed. 2d 109 (1996).
Trial court erred in denying defendant's motion to suppress evidence obtained as a result of the lawful arrest of defendant on an outstanding warrant, as the search of defendant at a lockup violated defendant's Fourth Amendment rights in a case where defendant was later convicted of possession of cocaine with intent to distribute; contrary to the Commonwealth's argument, the search of defendant was not a less intrusive strip search, but was a more intrusive visual body cavity search where police officers had defendant bend over and spread defendant's buttock cheeks, and the search was unreasonable because police did not have a "clear indication" that evidence was located within defendant's body and the police officers did not show that they faced exigent circumstances that required such an invasive search be performed. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391, 2007 Va. App. LEXIS 194 (2007).
Town officer was entitled to qualified immunity in a homeowner's action that alleged civil rights and illegal search claims under 42 U.S.C.S. § 1983 and § 19.2-59 because the homeowner's Fourth Amendment rights were not clearly established under the law since courts were divided on the question of whether a drunk driving offense justified a warrantless home arrest; the town was properly granted summary judgment because the homeowner did not set forth sufficient facts to establish that the supervising officials had knowledge, actual or constructive, that town police officers were engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the homeowner. Cilman v. Reeves,, 2011 U.S. App. LEXIS 22483 (4th Cir. Nov. 4, 2011), cert. denied, 132 S. Ct. 2385, 2012 U.S. LEXIS 3441, 182 L. Ed. 2d 1020 (U.S. 2012).
This section does not afford greater protection than that provided under the Fourth Amendment. Gordon v. Commonwealth, No. 1717-88-1 (Ct. of Appeals Apr. 10, 1990).
Evidence obtained in violation of United States Constitution is inadmissible. - Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. Ct. 23, 7 L. Ed. 2d 72 (1961), holds that all evidence obtained by search and seizure in violation of the United States Constitution is, by that same authority inadmissible in a state court. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128, rehearing denied, 373 U.S. 947, 83 S. Ct. 1533, 10 L. Ed. 2d 702 (1963).
Construction of section prior to 1976 amendment. - This section, as in force in 1975 with its provision for search incident to arrest, provided no greater restriction on warrantless searches than the Fourth Amendment, the provision for warrantless search incident to arrest having been added in 1975 to bring the statute in line with Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969), and subsequent removal of the provision in 1976 showing merely that statute should be broadly worded to avoid necessity for frequent amendments. Thims v. Commonwealth, 218 Va. 85 , 235 S.E.2d 443 (1977).
It may be conceded that the language of this section is perhaps too broad in its scope. But this fault, if fault it be, is not to be corrected by the court, as correction lies within the exclusive province of the legislature. Durham Bros. & Co. v. Woodson, 155 Va. 93 , 154 S.E. 485 (1930).
It was enacted to prevent searches upon mere suspicion. - It is a matter of common knowledge that for some years prior to 1920 there were complaints that many citizens were being harassed and humiliated by having their houses, vehicles and baggage searched, upon mere suspicion, by officers and other persons seeking to discover infractions of certain laws. It was primarily in response to these complaints that the Legislature enacted this section. Durham Bros. & Co. v. Woodson, 155 Va. 93 , 154 S.E. 485 (1930).
And to protect personal liberty and privacy. - The prime object of the statute is the protection of the personal liberty and privacy of the citizen and the prevention of the unreasonable invasion of personal rights in the course of the administration of the law. The protection which is given by the statute to property is purely incidental. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).
The statute has a wider scope than the common-law rule on the subject, in that it designates other places and things for the search of which search warrants are required, for which the common law does not require search warrants. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).
And it was the legislative intent to extend the right of search to vehicles, baggage and things. This provision is found for the first time in the Acts of 1920 and clearly indicates the intention to depart from the general rule at common law and also to enlarge the right of search conferred by the Code of 1919, as well as to impose upon one who violates its provisions both a penal and a civil liability. Durham Bros. & Co. v. Woodson, 155 Va. 93 , 154 S.E. 485 (1930).
No creation of action against private entity or individual. - This section does not create a cause of action against a private entity or an individual. Buonocore v. C & P Tel. Co., 254 Va. 469 , 492 S.E.2d 439 (1997).
Police officer not protected by sovereign immunity. - Circuit court erred by granting a police officer's motion to strike based on sovereign immunity for an arrestee' claim for unlawful search because the officer's search exceeded simple negligence since it was performed contrary to well-established law and violated the arrestee's Fourth Amendment rights; while the arrestee was seated, secured with handcuffs and leg shackles, and in the physical custody of a backup officer, the officer entered her car, retrieved her purse, and searched it. Cromartie v. Billings, 298 Va. 284 , 837 S.E.2d 247, 2020 Va. LEXIS 2 (Jan. 16, 2020).
This section makes a warrant the prerequisite of a search. Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969).
Not applicable to mine inspections. - Because subsection B of § 45.1-161.292:54 informed appellant mine operator that inspections to which he was subject were not discretionary acts but were conducted pursuant to statute, it satisfied the Burger test requiring a constitutionally adequate substitute for a warrant, and, if § 19.2-59 applied to surface mine inspections, much of the Virginia Mineral Mine Safety Act would be rendered meaningless, thus, § 19.2-59 did not apply to searches under the Virginia Mineral Mine Safety Act. LeSueur-Richmond Slate Corp. v. Fehrer, 666 F.3d 261, 2012 U.S. App. LEXIS 786 (4th Cir. 2012).
Reasonableness of search is test. - Like the Fourth Amendment, this section proscribes only an unreasonable search without a warrant. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. Carter v. Commonwealth, 209 Va. 317 , 163 S.E.2d 589 (1968), cert. denied, 394 U.S. 991, 89 S. Ct. 1479, 22 L. Ed. 2d 766 (1969).
Search and seizure incident to lawful arrest. - A search and seizure is not unlawful despite the absence of a search warrant if it occurs incident to a lawful arrest. Kirby v. Commonwealth, 209 Va. 806 , 167 S.E.2d 411 (1969).
Officer exceeding his authority is a trespasser. - In an action of trespass on the case against special police officers appointed under § 15.1-144 (see now § 15.2-1737 ), even if the entry of the defendants upon the farm of plaintiff in search of a still was lawful, if, after the entry, they exceeded their authority by doing some act which they had no right to do, the law will consider them as trespassers ab initio. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).
Protective sweep. - Under the Fourth Amendment, exigent circumstances justified a warrantless "protective sweep" of an apartment, even though defendant had already been arrested outside the residence, because police had reason to believe that there were other persons and a loaded weapon in the apartment. Williams v. Commonwealth,, 2006 Va. App. LEXIS 94 (Mar. 14, 2006).
Where officers, in conducting a protective sweep of an apartment after arresting, did not look into closed containers or cabinets, their quick and limited minimal intrusion did not violate the Fourth Amendment, and since they were lawfully in the apartment, they were entitled to seize a gun that was in plain view. Williams v. Commonwealth,, 2006 Va. App. LEXIS 94 (Mar. 14, 2006).
Who may be liable for punitive damages. - Although the entry of officers upon the farm of plaintiff to make a search was lawful, yet if while on the premises they were guilty of disorderly conduct injurious to the plaintiff, which was malicious or wanton, or conduct in violation of the statute, they were liable for punitive damages. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).
Only the constitutional standard of conduct, therefore, should apply for purposes of determining sovereign immunity in actions brought under this section. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).
Investigatory stop. - Suppression of evidence obtained during an investigatory stop was not required because the factual circumstances justified reasonable suspicion that defendant may have been trespassing; posted signs warned that permission to use the parking lot was reserved for patrons, and at 12:40 a.m., when the restaurant was closed, defendant was a non-patron subject to the restriction on access to the parking lot. Raab v. Commonwealth, 49 Va. App. 638, 644 S.E.2d 78, 2007 Va. App. LEXIS 179 (2007).
The trial court properly denied defendant's motion to suppress the cocaine seized from defendant's person, as a deputy, in conducting an investigatory stop of defendant on foot, observed that defendant smelled of alcohol, had a flushed face, and was unsteady on his feet, supplying the officer with probable cause to arrest defendant for public intoxication. Thus, given the validity of the stop, the trial court correctly denied defendant's suppression motion. Croson v. Commonwealth, No. 0935-06-2, 2007 Va. App. LEXIS 276 (July 24, 2007).
Trial court did not err in denying defendant's motion to suppress evidence that was recovered pursuant to a traffic stop because defendant's waiver of his Fourth Amendment rights incorporated into his plea agreement was valid as it applied to his seizure; even if the waiver only related to defendant's federal constitutional rights, the statute would at most provide defendant with a remedy of compensatory and punitive damages, not suppression of the evidence recovered. Blanton v. Commonwealth, No. 1834-14-4, 2016 Va. App. LEXIS 61 (Mar. 1, 2016).
Reasonable suspicion to stop vehicle. - Trial court erred in granting defendant's motion to suppress evidence because the officer had reasonable suspicion to stop the vehicle in which defendant was traveling based on the officer's observation of the vehicle violating two traffic laws, following too closely and exceeding the posted speed limit by at least five miles per hour; thus, the stop did not violate the Fourth Amendment. Commonwealth v. Beyene,, 2007 Va. App. LEXIS 368 (Oct. 2, 2007).
Evidence seized during pat down. - Evidence seized during pat down of defendant was inadmissible because the seizure and subsequent pat down of defendant violated defendant's rights under the Fourth Amendment. The officer did not have an objectively reasonable basis for suspecting defendant was armed and dangerous; among other things, the officer did not see a gun or anything that looked like a gun, there was no evidence defendant appeared nervous or behaved in threatening manner in placing his hands in his pockets, and the officer never asked defendant to remove his hands from his pockets or attempted to secure his own safety by less intrusive means. Roulhac v. Commonwealth, 50 Va. App. 8, 646 S.E.2d 4, 2007 Va. App. LEXIS 228 (2007).
Suppression of weapon found on defendant during a police search was erroneous because defendant was not "seized" within the meaning of the Fourth Amendment when the officer approached defendant and asked to speak to defendant; only after learning that defendant had outstanding felony warrants for robbery and firearms charges did the officer conduct a pat-down search of defendant. Commonwealth v. Collins, No. 0882-07-1, 2007 Va. App. LEXIS 367 (Sept. 28, 2007).
Emergency exception to warrant requirement. - Motion to suppress evidence first seen when police entered defendant's home without a warrant to check on the welfare of defendant in response to an anonymous call was improperly granted as the warrantless entry was permissible under the emergency exception to the warrant requirement; the police conduct was not pretextual, and the police first canvassed the outside of the house, knocked on the door, and tried to contact defendant. Commonwealth v. Purnell, No. 1761-02-1, 2002 Va. App. LEXIS 767 (Ct. of Appeals Dec. 23, 2002).
Community caretaker exception to warrant requirement. - Where the trial court found that the actions of the officers were not pretextual, the officers' warrantless entry into the residence was constitutionally permissible pursuant to the community caretaker exception to the warrant requirement. Kyer v. Commonwealth, 43 Va. App. 603, 601 S.E.2d 6, 2004 Va. App. LEXIS 396 (2004).
Based on the totality of the circumstances, especially defendant's attempt to flee the scene, a police officer had reasonable, articulable facts upon which to stop defendant and investigate further; consequently, the stop did not violate the Fourth Amendment and the trial court did not err in denying defendant's motion to suppress. Higgs v. Commonwealth, No. 1157-05-2, 2006 Va. App. LEXIS 216 (May 16, 2006).
Warrantless inspection of mines. - Because warrantless inspections of plaintiff's mines by defendant state inspectors were constitutional, since the state had a substantial interest in protecting worker health and safety and the scope of any inspections did not run afoul of the Fourth Amendment, plaintiff mining company failed to state a claim under 42 U.S.C.S. § 1983 and state law. The inspectors' actions were authorized by Virginia's Mineral Mine Safety Act, § 45.1-161.292:1 et seq., and Chapters 14.5 ( § 45.1-151.293 et seq.) and 14.6 ( § 45.1-161.304 et seq.) of Title 45.1, and the inspectors were entitled to qualified immunity. Lesueur-Richmond Slate Corp. v. Fehrer, 752 F. Supp. 2d 713, 2010 U.S. Dist. LEXIS 118081 (W.D. Va. 2010), aff'd, 666 F.3d 261, 2012 U.S. App. LEXIS 786 (4th Cir. 2012).
Standard for determination of sovereign immunity. - Only the Constitutional standard of conduct should apply for purposes of determining sovereign immunity in actions brought under this section. Amato v. City of Richmond, 875 F. Supp. 1124 (E.D. Va. 1994), aff'd, 78 F.3d 578 (4th Cir. 1996), cert. denied, 519 U.S. 862, 117 S. Ct. 167, 136 L. Ed. 2d 109 (1996).
Teachers and school principal entitled to sovereign immunity. - Teachers and school principal who ordered, directed and searched students were entitled to the protection of sovereign immunity from damages liability under this section. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).
Articles of clothing were not obtained by illegal search and seizure, and were properly admitted into evidence. Duffield v. Peyton, 209 Va. 178 , 162 S.E.2d 915 (1968).
Where defendant had impliedly consented to needed medical treatment, and the removal of his clothing and the removal of a bullet were necessary incidents thereof, as evidence of criminal agency the clothing and bullet were seizable objects and were appropriate objects to be voluntarily surrendered by the doctor who was in lawful control thereof. Craft v. Commonwealth, 221 Va. 258 , 269 S.E.2d 797 (1980).
Statute of limitations for unlawful searches and seizures. - An unlawful search and seizure is characterized as a personal injury, rather than an injury to property and the applicable statute of limitations provision is contained in subsection A of § 8.01-243 , which sets a two-year time limit for filing an action. Cramer v. Crutchfield, 496 F. Supp. 949 (E.D. Va. 1980), aff'd, 648 F.2d 943 (4th Cir. 1981).
Consent to search given by one with common authority over property is valid as against the absent, nonconsenting person with whom the authority is shared. Black v. Commonwealth, 223 Va. 277 , 288 S.E.2d 449 (1982).
Passenger lacked standing to challenge car owner's consent. - Because defendant, as a passenger, did not have standing to challenge the search of a car or the owner's consent thereto, the trial court erred in granting defendant's motion to suppress the physical evidence obtained from the investigative traffic stop. Commonwealth v. Blevins, No. 2729-06-3, 2007 Va. App. LEXIS 153 (Apr. 16, 2007).
Burden is on the Commonwealth to prove the voluntariness of a consent to search, but whether the consent was voluntarily given is a question of fact to be determined from the totality of all the circumstances. Black v. Commonwealth, 223 Va. 277 , 288 S.E.2d 449 (1982).
The burden is on the Commonwealth to show that consent to a warrantless search is freely and voluntarily given. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982).
Inadvertent discovery of incriminating evidence. - Where a police officer, with justification for being on the premises, is not searching for evidence against the accused but inadvertently comes across incriminating evidence, he may seize it without a warrant. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982).
Commonwealth's limited right of appeal. - The legislature has narrowly limited the Commonwealth's right to appeal suppression orders of the trial courts to orders which are based on constitutional violations; therefore, where the Commonwealth appealed an order suppressing certain evidence solely on the grounds that the evidence was obtained in violation of this section and § 19.2-60 , the court of appeals would not entertain the Commonwealth's appeal. Commonwealth v. Ragland, 7 Va. App. 452, 374 S.E.2d 183 (1988).
Anonymous tip. - Trial court properly denied defendant's motion to suppress a firearm seized from him through a warrantless pat down, despite the fact that the involved officers' suspicion that defendant was shooting at a vehicle was provided by an anonymous tip, as: (1) the police dispatcher and the investigating officers had objective reasons to believe the caller was reliable; (2) the caller's continued presence on the telephone as the encounter unfolded established this reliability; and (3) the caller provided updated information at the time the officers actually approached defendant, and the officers corroborated this information. Williams v. Commonwealth, No. 0783-04-1, 2005 Va. App. LEXIS 129 (Ct. of Appeals Mar. 29, 2005).
Citizen informant. - Court did not err in denying defendant's motion to suppress because the totality of the circumstances established that the 911 caller was not an anonymous informant but, instead, was a citizen informant, who identified himself as a security guard at a known country club and reported disorderly conduct which he had observed there, and his reliability was evidenced by his being accountable to the police if his report was erroneous. The guard accurately described the perpetrators, the vehicle they were driving, the license plate number, and the direction the vehicle was traveling. Hyman v. Commonwealth, No. 0519-18-1, 2019 Va. App. LEXIS 236 (Ct. of Appeals Oct. 22, 2019).
Damages. - This section concerns a common-law tort that has achieved constitutional dimensions, and the statute specifies the familiar tort law remedy of damages. Sovereign immunity, which is primarily applied to bar damages liability in tort suits, applies to action brought under this section. Burnham v. West, 681 F. Supp. 1169 (E.D. Va. 1988).
Police officer did not have probable cause to search an arrestee's purse, and because the search was not lawful, no liability question remained regarding it, and sovereign immunity did not insulate a police officer from liability; accordingly, an arrestee's claim for unlawful search was remanded to the circuit court for consideration of damages only. Cromartie v. Billings, 298 Va. 284 , 837 S.E.2d 247, 2020 Va. LEXIS 2 (Jan. 16, 2020).
Motion to suppress properly granted. - Evidence found in a frisk of defendant was properly suppressed as the frisk was unconstitutional where the police did not have reason to believe that defendant was armed and dangerous at the time he was frisked since: (1) there were no facts linking defendant, a former occupant of a car, with the theft of the car or the driver's possession of a gun; (2) there was no evidence establishing that defendant and the driver were on a common mission; (3) when arrested, defendant was a pedestrian and had not been in the car for 10 minutes; and (4) there were no factors in which suspicion had been imputed to the companion of a legally detained suspect as, inter alia, defendant did not have invalid identification, the police were not outnumbered, and the encounter did not occur in a high crime area, at night, or under poor lighting conditions. Commonwealth v. Riggins, No. 2001-03-4, 2004 Va. App. LEXIS 48 (Ct. of Appeals Jan. 30, 2004).
Motion to suppress denied. - Police officer's entry upon defendant's curtilage at approximately 12:30 a.m. to conduct a knock and talk was reasonable under the facts and circumstances, and therefore, did not violate the Fourth Amendment. Accordingly, the trial court did not err in denying defendant's motion to suppress. Saal v. Commonwealth, 72 Va. App. 413, 848 S.E.2d 612, 2020 Va. App. LEXIS 241 (2020).
CIRCUIT COURT OPINIONS
Applicability. - In a matter arising out of a dog bite incident giving rise to a dangerous dog proceeding, defendant's motion to suppress was denied because, based on a plain meaning textual analysis, the character of the penalties in a dangerous dog proceeding, and an understanding of the underlying purposes of the exclusionary rule, the dangerous dog proceeding should be treated as a civil proceeding, which thus barred application of the exclusionary rule to the dangerous dog proceeding. Commonwealth v. Shafer, 91 Va. Cir. 234, 2015 Va. Cir. LEXIS 160 (Fairfax County Sept. 28, 2015).
No cause of action for unreasonable seizures. - This section, which creates a cause of action for unreasonable searches, creates no such cause for unreasonable seizures. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004).
Reasonableness of search is test. - Defendant's motion to suppress evidence located as a result of the officer's search was denied, as the officer's finding of cocaine on defendant's person due to a pat-down search was based on a reasonable suspicion of the presence of illegal drugs that gave rise to a concern that guns were present; defendant conceded that probable cause existed to search the car in which he was a passenger since the officer smelled marijuana emanating from the car, which meant the officer was reasonably suspicious that other illegal drugs were present, as well as guns, and the officer thus had the right to pat-down defendant, at which time the cocaine was located. Commonwealth v. Webb, 62 Va. Cir. 110, 2003 Va. Cir. LEXIS 73 (Roanoke 2003).
Probable cause to search. - Public safety is a clear exigent circumstance justifying the police officers' entry into a defendant's residence in response to an alarm call; if the police have reason to believe that someone might be hurt or that an intruder is on the premises, they are permitted to enter the premises to check for such activity. Commonwealth v. Swartz, 66 Va. Cir. 513, 2003 Va. Cir. LEXIS 255 (Fairfax County 2003).
Consent to warrantless search was voluntary. - Defendant's motion to suppress evidence was denied because, based on the totality of the circumstances, defendant's waiver of his rights and consent to search his home was voluntarily made and, thus, lawfully obtained; the officer removed defendant's handcuffs, read him his rights, received permission to search the house, and asked defendant if anything illegal would be found, to which defendant responded affirmatively. Commonwealth v. Swartz, 66 Va. Cir. 513, 2003 Va. Cir. LEXIS 255 (Fairfax County 2003).
Consent to search not valid. - Where the police officers, after hearing a noise in defendant's apartment, asked defendant's boyfriend's consent to search the apartment, and the boyfriend granted consent, the consent to search exception to the warrant requirement under § 19.2-59 was not established; defendant's boyfriend, who was not a co-tenant in the apartment, lacked the apparent authority to consent to the search, as there was no effort made to ascertain whether the boyfriend was a co-tenant of the apartment; nor was the exigent circumstance exception established. Commonwealth v. Gordon,, 2003 Va. Cir. LEXIS 170 (Roanoke Sept. 8, 2003).
Search held invalid. - Police officer's search of defendant without probable cause to believe a crime was being committed rendered the search of defendant, which showed defendant had crack cocaine on defendant's person, illegal; even if probable cause had existed, suppression would have still been required because the facts did not justify a warrantless search. Commonwealth v. Niblett, 61 Va. Cir. 736, 2002 Va. Cir. LEXIS 316 (Roanoke 2002).
Defendant's motion to suppress was granted, where the evidence showed that any alleged consent received by officers was the fruit of the poisonous tree that was not purged of an illegal taint, specifically, the illegal entry into a locked employee break room, especially where no intervening circumstances or significant passage of time between the illegal entry and the consent was present. Commonwealth v. Soy Hem, 62 Va. Cir. 480, 2003 Va. Cir. LEXIS 303 (Norfolk 2003).
Evidence obtained from a warrantless search of defendants' apartment was suppressed where no exigent circumstances existed, the evidence did not support a finding of hot pursuit, and consent obtained after the detective entered defendants' apartment could not retroactively validate a prior improper entry. Commonwealth v. Whitecotton,, 2004 Va. Cir. LEXIS 228 (Roanoke Aug. 27, 2004).
§ 19.2-59.1. Strip searches prohibited; exceptions; how strip searches conducted.
- No person in custodial arrest for a traffic infraction, Class 3 or Class 4 misdemeanor, or a violation of a city, county, or town ordinance, which is punishable by no more than 30 days in jail shall be strip searched unless there is reasonable cause to believe on the part of a law-enforcement officer authorizing the search that the individual is concealing a weapon. All strip searches conducted under this section shall be performed by persons of the same sex as the person arrested and on premises where the search cannot be observed by persons not physically conducting the search.
- A regional jail superintendent or the chief of police or the sheriff of the county or city shall develop a written policy regarding strip searches.
- A search of any body cavity must be performed under sanitary conditions and a search of any body cavity, other than the mouth, shall be conducted either by or under the supervision of medically trained personnel.
- Strip searches authorized pursuant to the exceptions stated in subsection A shall be conducted by a law-enforcement officer as defined in § 9.1-101 .
- The provisions of this section shall not apply when the person is taken into custody by or remanded to a law-enforcement officer pursuant to a circuit or district court order.
- For purposes of this section, "strip search" means having an arrested person remove or arrange some or all of his clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts, or undergarments of such person.
- Nothing in this section shall prohibit a sheriff or a regional jail superintendent from requiring that inmates take hot water and soap showers and be subjected to visual inspection upon assignment to the general population area of the jail or upon determination by the sheriff or regional jail superintendent that the inmate must be held at the jail by reason of his inability to post bond after reasonable opportunity to do so.
- Except for children committed to the Department of Juvenile Justice or confined or detained in a secure local facility for juveniles or a jail or other facility for the detention of adults and except as provided in subsection E, no child under the age of 18 shall be strip searched or subjected to a search of any body cavity by a law-enforcement officer, as defined in § 9.1-101 , or a jail officer unless the child is in custodial arrest and there is reasonable cause to believe on the part of a law-enforcement officer or jail officer authorizing the search that the child is concealing a weapon. (1981, c. 608; 1995, c. 112; 2020, c. 1236.)
Cross references. - As to punishment for Class 3 and Class 4 misdemeanors, see § 18.2-11 .
The 2020 amendments. - The 2020 amendment by c. 1236 substituted "30 days" for "thirty days" in subsection A; deleted "of this section" following "subsection A" in subsection D; substituted "means" for "shall mean" in subsection F; and added subsection H.
CASE NOTES
Expansive definition of "strip search." - The definition of "strip search" contained in this section is much more expansive than the traditional definition of such a search, because the statute is restricted to non-jailable offenses and offenses punishable by no more than 30 days in jail. McCloud v. Commonwealth, 35 Va. App. 276, 544 S.E.2d 866, 2001 Va. App. LEXIS 213 (2001).
Prohibition inapplicable to arrests for felonies. - By its own terms, this section does not apply to felony offenses and, accordingly, was not implicated where a defendant was arrested for possession of a stolen vehicle, a felony under Virginia law. McCloud v. Commonwealth, 35 Va. App. 276, 544 S.E.2d 866, 2001 Va. App. LEXIS 213 (2001).
This section does not apply to felony detainees, and does not provide a statutory suppression remedy for alleged violations. Craddock v. Commonwealth, 40 Va. App. 539, 580 S.E.2d 454, 2003 Va. App. LEXIS 296 (2003).
Where appellant was subjected to a visual body cavity search while being processed for detention into a jail and appellant argued that there was no medically trained personnel present at the time of the search, appellant was not subject to the provisions of § 19.2-59.1 , because appellant had been charged with a felony. Winston v. Commonwealth, 51 Va. App. 74, 654 S.E.2d 340, 2007 Va. App. LEXIS 485 (2007).
Exclusion of evidence not mandated. - The fact that a search violates a legislative mandate without violating the Constitution does not provide for the exclusion of such evidence. Taylor v. Commonwealth, 28 Va. App. 638, 507 S.E.2d 661 (1998).
Denial of defendant's motion to suppress drugs was proper because, even if there was a U.S. Const., Amend. IV violation, defendant almost certainly would have been denied bail and committed to jail. Once inside, the deputies would have had a reason to believe that defendant was hiding contraband, which would have justified a body cavity search. Bowe v. Commonwealth,, 2010 Va. App. LEXIS 136 (Apr. 6, 2010).
Evidence should have been suppressed. - Trial court erred in denying defendant's motion to suppress evidence obtained as a result of the lawful arrest of defendant on an outstanding warrant, as the search of defendant at a lockup violated defendant's Fourth Amendment rights in a case where defendant was later convicted of possession of cocaine with intent to distribute; contrary to the Commonwealth's argument, the search of defendant was not a less intrusive strip search, but was a more intrusive visual body cavity search where police officers had defendant bend over and spread defendant's buttock cheeks, and the search was unreasonable because police did not have a "clear indication" that evidence was located within defendant's body and the police officers did not show that they faced exigent circumstances that required such an invasive search be performed. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391, 2007 Va. App. LEXIS 194 (2007).
§ 19.2-60. Motion for return of seized property and to suppress.
A person aggrieved by an allegedly unlawful search or seizure may move the court to return any seized property and to suppress it for use as evidence. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted by a court of record, any seized property shall be restored as soon as practicable unless otherwise subject to lawful detention, and such property shall not be admissible in evidence at any hearing or trial. If the motion is granted by a court not of record, such property shall not be admissible in evidence at any hearing or trial before that court, but the ruling shall have no effect on any hearing or trial in a court of record.
(1975, c. 495.)
Law review. - For review of Fourth Circuit cases on habeas corpus and prisoners' rights, see 36 Wash. & Lee L. Rev. 603 (1979).
For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).
CASE NOTES
I. IN GENERAL.
This section is a procedural statute. Troncoso v. Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991).
Rules governing suppression. - A motion under this section must be decided according to the established rules governing the suppression of evidence. Accordingly, suppression is properly denied absent a showing that the evidence was seized pursuant to a constitutional violation or pursuant to the violation of a statute which expressly provides suppression as a remedy for its breach. Troncoso v. Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991).
Commonwealth's limited right of appeal. - The legislature has narrowly limited the Commonwealth's right to appeal suppression orders of the trial courts to orders which are based on constitutional violations; therefore, where the Commonwealth appealed an order suppressing certain evidence solely on the grounds that the evidence was obtained in violation of § 19.2-59 and this section, the court of appeals would not entertain the Commonwealth's appeal. Commonwealth v. Ragland, 7 Va. App. 452, 374 S.E.2d 183 (1988).
Commonwealth's interlocutory appeal not allowed based on former § 19.2-83 . - Where the trial court's suppressing order was not based on a violation of a provision of the Virginia or federal Constitutions, but was based on former § 19.2-83 , which limited the authority of a police officer to stop, question and search a suspicious person, the interlocutory appeal by the Commonwealth from the order suppressing evidence of cocaine found on the defendant when law-enforcement officers searched him was not one which the Commonwealth was permitted to appeal. Commonwealth v. Brown, 8 Va. App. 41, 378 S.E.2d 623 (1989).
Entry of a knowing and voluntary, but non-conditional plea waived appeal from denial of motion to suppress. - Because defendant did not enter a conditional guilty plea pursuant to § 19.2-254 , to a charge of possession of Oxycodone, but he entered said plea voluntarily and intelligently, he waived his right to appeal from the judgment denying his motion to suppress the evidence seized against him. Hill v. Commonwealth, 47 Va. App. 667, 626 S.E.2d 459, 2006 Va. App. LEXIS 63 (2006).
Where entry reasonable pursuant to emergency doctrine. - Officers' entry of appellant's home was reasonable under the emergency doctrine and appellant's motion to suppress was properly denied because evidence of appellant brandishing and using guns in the home permitted a reasonable officer to conclude that appellant's young daughter might be threatened with serious injury and in need of immediate aid; any error regarding the warrant was harmless because the shotguns and ammunition found pursuant to the warrant were merely cumulative of the weapons found in plain view pursuant to the lawful entry. Stallings v. Commonwealth,, 2007 Va. App. LEXIS 451 (Dec. 18, 2007).
II. MOTION TO SUPPRESS.
A. SEARCH AND SEIZURE.
Consent to search. - Although no warrant exception justified police entry into the mother's apartment where defendant lived, the consent obtained thereafter from the mother was sufficiently an act of free will to purge the primary taint and thus, the trial court properly denied defendant's motion to suppress inculpatory evidence found in defendant's bedroom. Kyer v. Commonwealth, 45 Va. App. 473, 612 S.E.2d 213, 2005 Va. App. LEXIS 193 (2005).
Trial court did not err in denying defendant's motion to suppress, as there was no evidence that the police coerced defendant into consenting to the search; defendant never testified he heard any threats, saw any brandished firearms, observed an overwhelming number of officers, experienced any overt or implicit coercion, or felt he had no choice but to consent. Elliott v. Commonwealth, 61 Va. App. 48, 733 S.E.2d 146, 2012 Va. App. LEXIS 335 (2012).
Since a police officer conducting a traffic stop of defendant's vehicle had already given defendant her documentation back and had informed her that he was only going to give her a warning for her speeding violation while advising her to slow down before he continued questioning her, the traffic stop had concluded, and the ensuing encounter between the officer and defendant needed to proceed on a consensual basis in order for it to be lawful. The continued encounter was not consensual as, when the officer questioned defendant about the possession of illegal drugs, he had not informed defendant that she was free to leave, nor would a reasonable person have felt free to leave since the circumstances did not change from when the officer originally had seized her based on probable cause for the traffic stop; thus, defendant's motion to suppress was properly granted. Commonwealth v. Crooks,, 2012 Va. App. LEXIS 364 (Nov. 15, 2012).
Consensual encounter. - Trial court did not err in denying defendant's motion to suppress a firearm seized from defendant's person. Since defendant did not submit to the officer's assertion of authority when he instructed defendant to take his hands out of his pockets after officers approached him on the streets while investigating a report of drug activity, the encounter remained consensual. Blanchard v. Commonwealth,, 2012 Va. App. LEXIS 110 (Apr. 10, 2012).
Trial court did not err in denying defendant's motion to suppress evidence a police officer obtained from his person after conducting a traffic stop because defendant was not illegally detained, and the search was consensual; when the officer sought permission to search defendant's vehicle the encounter was consensual, and defendant was not seized for purposes of the Fourth Amendment, and a reasonable person would have recognized that the traffic investigation was concluded and that he or she was free to leave and to refuse the officer's request to search. Mayo v. Commonwealth,, 2013 Va. App. LEXIS 57 (Feb. 19, 2013).
Third party consent. - As the peremptory manner in which a homeowner gained access to defendant's rented bedroom, unannounced and without knocking despite knowing defendant was present, would lead a reasonable person to believe that the room was under the homeowner's control as well, an officer's presence in the room was lawful and did not violate defendant's Fourth Amendment rights. Thus, defendant's motion to suppress was properly denied. Sourdiff v. Commonwealth,, 2008 Va. App. LEXIS 534 (Dec. 9, 2008).
Abandoned property admissible. - Trial court erred in granting defendant's motion to suppress, because defendant was unable to meet defendant's burden of proving that defendant retained a reasonable expectation of privacy in the item after defendant tossed it out the window of the moving vehicle, where the evidence did not establish that defendant was subject to a seizure of defendant's person when defendant discarded plastic bag out the window. Commonwealth v. Kennedy,, 2009 Va. App. LEXIS 26 (Jan. 27, 2009).
No reasonable expectation of privacy. - Trial court properly denied defendant's suppression motion as defendant surrendered his expectation of privacy in a tissue and its contents by voluntarily and intentionally dropping them to the ground in a quasi-public place during a consensual encounter with the police; notwithstanding any subjective intention to step on the tissue and to retain or regain control of it, the officers' recovery of the tissue was not an unreasonable search or seizure. Mayfield v. Commonwealth, No. 2713-03-1, 2005 Va. App. LEXIS 14 (Ct. of Appeals Jan. 11, 2005).
Defendant's motion to suppress was properly denied as he failed to show a reasonable expectation of privacy in a motel room where no evidence beyond his presence in the room tended to show that he was in the room with the registered owner's consent. Sharpe v. Commonwealth, 44 Va. App. 448, 605 S.E.2d 346, 2004 Va. App. LEXIS 594 (2004).
Defendant was not entitled to have DNA evidence suppressed because the use of a buccal swab to obtain defendant's DNA profile for comparison with DNA evidence recovered from the victim did not violate defendant's rights under the Fourth Amendment; defendant's reasonable expectation of privacy in the DNA sample ended when defendant voluntarily provided it to police for DNA testing and comparison in another case, without limiting its subsequent use for the same purpose in other investigations. Pharr v. Commonwealth, 50 Va. App. 89, 646 S.E.2d 453, 2007 Va. App. LEXIS 246 (2007).
Trial court properly denied defendant's motion to suppress evidence obtained during a search of a hotel room as he failed to establish a legitimate expectation of privacy. Although defendant claimed his girlfriend was the registered guest, no evidence established the specific identity of the registered occupant; there was no evidence establishing that his girlfriend actually intended for defendant to spend the night, and there was no evidence that defendant had personal belongings in the room. Young v. Commonwealth, No. 1466-12-1, 2013 Va. App. LEXIS 202 (Ct. of Appeals July 16, 2013).
No privacy interest in garbage cans. - Discarded garbage placed on the side of the street for pickup did not fall within any recognized Fourth Amendment privacy interest, and defendant did not have a legitimate privacy interest in it merely because the trash, which defendant testified he placed about two to three feet from the street, could be within the curtilage. Commonwealth v. Bryant,, 2005 Va. App. LEXIS 179 (May 3, 2005).
Search of backpack. - Defendant was not entitled to suppression of evidence seized from a backpack in defendant's grandfather's house after the grandfather gave consent, because it was objectively reasonable for the police officer to conclude that the grandfather's consent to search included the authority to consent to a search of the backpack and defendant was present but failed to object to search. Glenn v. Commonwealth, 275 Va. 123 , 654 S.E.2d 910, 2008 Va. LEXIS 16 (2008).
Denial of defendant's motion to suppress was proper, where the officer had the driver's unrestricted consent to search the car containing defendant's bookbag; defendant left the bookbag in the car, knowing the car was to be searched; and defendant failed to make any objection to the search of the bookbag, despite ample opportunity to do so. Vaughan v. Commonwealth, 53 Va. App. 435, 672 S.E.2d 909, 2009 Va. App. LEXIS 82 (2009).
Handgun seized following a warrantless search of defendant's backpack was not admissible based on abandonment, where the trial court made no factual finding that defendant left the backpack in the office to conceal if from police, or otherwise intended to discard it or its contents. Nor was the fact that defendant told the officer that the handgun was in the backpack an "independent source," as the information obtained by the officer during the warrantless search was clearly used to secure defendant's admission. Knight v. Commonwealth, 61 Va. App. 297, 734 S.E.2d 716, 2012 Va. App. LEXIS 406 (2012).
Search warrant not supported by probable cause. - Although a search warrant affidavit failed to provide a sufficient nexus between drugs and defendant's residence to support probable cause under the Fourth Amendment, it was not so lacking in probable cause as to render official belief in the warrant objectively unreasonable. The good faith exception prevented application of the exclusionary rule, and defendant's pre-trial motion to suppress evidence was properly denied. Sowers v. Commonwealth, 49 Va. App. 588, 643 S.E.2d 506, 2007 Va. App. LEXIS 172 (2007).
Good faith exception. - Where defendant was convicted of second-degree murder, items seized at defendant's residence pursuant to a search warrant were properly admitted because: (1) the totality of the circumstances could be considered when deciding the question of good faith; and (2) the Leon good-faith exception to the exclusionary rule applied since the warrant stated that the residence was located on the same street as the shooting and the criminal complaint listed defendant's address, which was the same address as the residence. Adams v. Commonwealth, 275 Va. 260 , 657 S.E.2d 87, 2008 Va. LEXIS 40 (2008).
Exclusionary rule of U.S. Const. amend. IV did not mandate suppression of evidence found during a search of defendant as the searching officer relied on information provided by a dispatcher that there was outstanding warrant for defendant's arrest. Thus, the officer was objectively reasonable in arresting and searching defendant incident to that arrest. Bellamy v. Commonwealth, 60 Va. App. 125, 724 S.E.2d 232, 2012 Va. App. LEXIS 130 (2012).
"Good faith" exception applied and motion to suppress should have been denied, because, while the officer mistakenly failed to indicate that the information in the affidavit came from an informant rather than from the officer's personal knowledge, there was no reason to believe that the magistrate would have been misled to conclude that the officer was the source of the information since the affidavit itself indicated that the informant was the source of the information. Commonwealth v. Becerra-Ochoa,, 2013 Va. App. LEXIS 62 (Feb. 26, 2013).
Search incident to valid arrest. - Motion to suppress was improperly granted because defendant was not seized for purposes of the Fourth Amendment when the officer parked 20 to 30 feet from the car where defendant was sitting and asked for and received identification; once the officer learned of the outstanding warrant for defendant, the encounter became a lawful seizure and evidence found during the search incident to defendant's arrest was lawfully obtained. Commonwealth v. Belfield,, 2007 Va. App. LEXIS 256 (June 26, 2007).
Cocaine found on defendant during a search incident to defendant's arrest for public drunkenness was erroneously suppressed as a police officer had probable cause to arrest defendant for public drunkenness under § 18.2-388 , since defendant was found drunk and sleeping in a car in a parking lot open to the public and routinely used by apartment residents and guests; it did not matter for Fourth Amendment purposes that defendant was charged under a City ordinance with a more narrow scope than the state public drunkenness statute. Commonwealth v. Carter,, 2007 Va. App. LEXIS 344 (Sept. 14, 2007).
Denial of defendant's motion to suppress was proper, because the officer had probable cause to believe that defendant had or was committing crime of possessing marijuana based on the strong odor emanating from defendant; thus, the officer had probable cause to arrest defendant and therefore, the officer was entitled to conduct a full search of defendant's person. Askew v. Commonwealth,, 2009 Va. App. LEXIS 133 (Mar. 24, 2009).
Denial of defendant's motion to suppress evidence seized from defendant's person incident to a warrantless arrest was upheld, because the officers had probable cause for the warrantless arrest given verified information from a confidential informant regarding defendant's identity, automobile, and destination, and the officers' observations of defendant's suspicious behavior and interactions with a man at the subject location. Robinson v. Commonwealth, 53 Va. App. 732, 675 S.E.2d 206, 2009 Va. App. LEXIS 174 (2009).
There was no error in the denial of a motion to suppress evidence obtained in a search incident to arrest because the initial encounter between defendant and a police officer was consensual where the officer made no show of force or authority nor did she physically restrain defendant in any way during the encounter and the interaction prior to defendant's arrest lasted only five to seven minutes. Muhammad v. Commonwealth,, 2010 Va. App. LEXIS 163 (Apr. 27, 2010).
Trial court did not err in refusing to suppress evidence because evidence obtained from independent sources provided probable cause for defendant's arrest and the accompanying search of his vehicle for a crime committed only hours earlier; the focus on defendant as a suspect did not begin with the placement of a global positioning system device on his vehicle. Hill v. Commonwealth, No. 1828-11-3, 2012 Va. App. LEXIS 318 (Ct. of Appeals Oct. 9, 2012).
Inevitable discovery doctrine. - Trial court properly denied defendant's motion to suppress, because even assuming, without deciding, that the state trooper violated defendant's Fourth Amendment rights by searching a cigarette box without probable cause, the evidence was nonetheless admissible under the inevitable discovery doctrine, as there was a reasonable probability that the evidence would have been discovered during a search incident to a lawful arrest, made after the trooper searched defendant's vehicle pursuant to defendant's consent. Bell v. Commonwealth,, 2009 Va. App. LEXIS 9 (Jan. 13, 2009).
Probable cause to arrest found. - Denial of motion to suppress was proper because the officers had probable cause to arrest defendant based on the officer's belief that defendant constructively possessed the cocaine found in the console of the vehicle; among other things, the vehicle's owner admitted possessing smoking devices found in the vehicle but denied any knowledge of the container where the drugs were found and the officers were armed with the additional knowledge that defendant had just engaged in suspicious behavior suggestive of a drug transaction with a person traveling in a rental vehicle, and they observed a large bulge in his pants pocket that defendant admitted was a roll of cash. Dodd v. Commonwealth, 50 Va. App. 301, 649 S.E.2d 222, 2007 Va. App. LEXIS 316 (2007).
Trial court erred in suppressing a firearm found at the scene because the officers had probable cause to arrest defendant based on information received from an informant that the officers spoke to face-to-face; when officers first encountered defendant the defendant was nervous and determined to convince the officers that the defendant did not have a gun, even though the officers never mentioned that officers suspected the defendant had one; and an officer then found a gun in a vehicle the exact place defendant had been standing when the officers first spotted defendant. Commonwealth v. Moody, No. 1046-08-2, 2008 Va. App. LEXIS 438 (Sept. 30, 2008).
Grant of motion to suppress was error, where an officer had probable cause to arrest defendant after noticing a car parked next to a closed salvage yard, seeing defendant flee from the salvage yard, finding the lock on the salvage yard gate broken, discovering a hacksaw inside a duffle bag underneath a truck in the salvage yard, and finding, during consensual search, used car parts in the trunk of defendant's car. Commonwealth v. Butler,, 2009 Va. App. LEXIS 20 (Jan. 15, 2009).
Trial court did not err by denying defendant's motion to suppress because the totality of the circumstances provided police officers with probable cause to arrest defendant for a robbery; the police had received an anonymous tip linking defendant to the crimes, had observed him attempt to flee, located a cap matching a description of the cap the robber wore inside the residence where he was found, and had obtained an eyewitness identification of defendant as the robber. Smith v. Commonwealth,, 2009 Va. App. LEXIS 269 (June 16, 2009).
Defendant's suppression motion was properly denied where the police possessed probable cause to arrest defendant when defendant arrived at a parking lot to sell marijuana because an informant identified defendant as a marijuana dealer, and the police overheard a phone call with a person identified as defendant arranging for a marijuana purchase at the parking lot. Gholston v. Commonwealth,, 2010 Va. App. LEXIS 202 (2010).
Defendant's motion to suppress evidence was properly denied because recovery of a firearm and cocaine evidence stemmed from a search incident to a lawful arrest where officers stopped defendant's car for failing to stop at a stop sign and an officer smelled marijuana coming from the car, which gave the officers probable cause to not only search the car but to search the individuals within the car. Price v. Commonwealth,, 2010 Va. App. LEXIS 194 (May 11, 2010).
Trial court did not err in denying defendant's motion to suppress cocaine the police discovered in defendant's vehicle incident to an arrest on a separate charge because the police did not rely on the passenger of the vehicle as an informant since the passenger was not an informant, and his reliability and basis of knowledge were not factors in determining whether the police had probable cause to arrest defendant; unlike an anonymous tipster, the passenger was known to the police and personally spoke with them, and by telling the police that defendant was the driver and possessed the cocaine, the passenger was subjecting himself to possible arrest if the information proved false under § 18.2-461 , placed his credibility at risk, and he could not lie with impunity. Jones v. Commonwealth,, 2011 Va. App. LEXIS 98 (Mar. 22, 2011).
Trial court did not err in denying defendant's motion to suppress cocaine the police discovered in defendant's vehicle incident to an arrest on a separate charge because the police had probable cause to arrest defendant since a reasonable officer could conclude that there was probable cause to believe that defendant committed the crime of possession of cocaine, either solely or jointly; it was an entirely reasonable inference from the facts that either defendant or a passenger had knowledge of, and exercised dominion and control over, the cocaine. Jones v. Commonwealth,, 2011 Va. App. LEXIS 98 (Mar. 22, 2011).
Trial court did not err in denying defendant's motion to suppress, where it was clear that the trial court was referring to the probable cause standard when it denied the motion by stating that the officer "had reason to believe" that a crime was being committed and there was abundant evidence that defendant was disregarding the officer's signal or attempting to escape or elude the officer. Proffitt v. Commonwealth, No. 1424-10-2, 2011 Va. App. LEXIS 339 (2011).
Trial court erred in granting defendant's motion to suppress his statement to an arresting officer that he had taken an item from a store because under the totality of the circumstances, there was probable cause to arrest defendant since he matched the description given by an eyewitness and was apprehended near the scene of the crime; when the arrest officer found defendant in a library he knew that a shoplifting had occurred at the store located across the street and that the suspect was a white male wearing a gray hooded sweatshirt who fled toward the library. Commonwealth v. Hicks, No. 1742-11-3, 2012 Va. App. LEXIS 33 (Ct. of Appeals Feb. 7, 2012).
Trial court properly denied defendant's motion to suppress drug evidence found in a search incident to defendant's arrest. Assessing defendant's encounter with the officer objectively, the officer had probable cause to arrest defendant for misdemeanor littering under § 33.1-346 [now § 33.2-802 ] from the moment defendant removed his coat and dropped it in the street while running from the officer. Bynum v. Commonwealth, No. 0273-12-1, 2012 Va. App. LEXIS 408 (Dec. 18, 2012).
No probable cause to arrest. - Motion to suppress heroin was improperly denied because the informant's tip did not provide probable cause to arrest defendant. The informant provided no basis for the claim that defendant was in possession of drugs; the informant did not provide such detailed information that a court could infer that the informant had personal knowledge of the alleged illegal activity; and the informant's history of reliability was not so great that it could, standing alone, support a finding of probable cause. Byrd v. Commonwealth, 50 Va. App. 542, 651 S.E.2d 414, 2007 Va. App. LEXIS 394 (2007).
Defendant's motion to suppress evidence resulting from the search of his person was properly granted because detectives lacked probable cause to arrest defendant; the detectives had insufficient knowledge to provide them with probable cause to believe that defendant was a drug source, there was no evidence that the detectives observed anything other than innocent behavior when defendant approached the driver of a car, and the detectives overheard none of the conversation between defendant and the driver. Commonwealth v. Williams,, 2008 Va. App. LEXIS 229 (May 13, 2008).
Because an officer lacked probable cause to arrest defendant for possession of marijuana, reliance upon the officer's detection of an unidentified "faint odor" was insufficient to create probable cause, and defendant's suspicious behavior as an intoxicated person did not warrant any further investigation, denial of her suppression motion was reversed. Buhrman v. Commonwealth, 275 Va. 501 , 659 S.E.2d 325, 2008 Va. LEXIS 43 (2008).
Defendant not in custody. - Where defendant voluntarily accompanied officers to the police station, the detectives told defendant he was not under arrest and was free to leave, and the behavior of the officers supported their statements, the evidence supported a finding that defendant was not in custody when he made his first confession. Olson v. Commonwealth, No. 2462-06-1, 2008 Va. App. LEXIS 95 (Feb. 26, 2008).
Plain view doctrine. - Motion to suppress was properly denied because the police officer did not violate defendant's constitutional rights under the Fourth Amendment by using a flashlight to illuminate contraband in defendant's pocket during the night hours; the officers' use of a flashlight to illuminate the interior of defendant's jacket pocket, which illuminated what defendant had exposed in plain view, did not change the plain view nature of the discovery. Gibson v. Commonwealth, 50 Va. App. 744, 653 S.E.2d 626, 2007 Va. App. LEXIS 446 (2007).
Reasonable, articulable suspicion. - Firearm should have been suppressed because the seizure that led to its discovery was unreasonable under the Fourth Amendment; although the officer had reasonable suspicion to believe that defendant possessed a firearm, nothing in the record provided reasonable suspicion for the belief that defendant was carrying the firearm in a legally proscribed manner. The informant provided no explanation for the basis for the belief that defendant might have had an outstanding warrant, and knowledge that defendant possessed a handgun and was trying to sell it in a high-crime, high-drug area contributed nothing to the reasonable, articulable suspicion required for a Terry stop. Goodman v. Commonwealth,, 2007 Va. App. LEXIS 383 (Oct. 16, 2007).
Trial court erred in granting defendant's motion to suppress evidence a police officer obtained pursuant to a traffic stop of his vehicle because a broken brake light provided the officer with reasonable suspicion to conduct a traffic stop; because § 46.2-1014.1 required defendant's vehicle to be equipped with a supplemental center high mount stop light, and the officer observed that the light was defective, the officer had reasonable suspicion to believe defendant was in violation of § 46.2-1003 . Commonwealth v. Gaskins,, 2011 Va. App. LEXIS 180 (May 24, 2011).
Denial of defendant's motion to suppress was proper, because the information provided to the officers by the two unwitting informants gave the officers reasonable suspicion to justify the seizure, and the informants' reliability was based on the female informant's previously having provided information and completed two controlled buys, and the male informant's prediction of defendant's arrival in a green car. Johnson v. Commonwealth,, 2009 Va. App. LEXIS 193 (Apr. 28, 2009).
Trial court did not err in denying defendant's motion to suppress evidence because police officers had a particularized and objective basis for suspecting that defendant was involved in criminal activity since defendant was loitering in a known open-air drug market and was talking to people whom a trained and experienced police officer knew to be drug dealers; defendant was observed waving at vehicles in the area of high drug activity, which the officer, who was an expert in street-level drug transactions, testified was behavior consistent with soliciting potential drug sales. Baker v. Commonwealth,, 2010 Va. App. LEXIS 444 (Nov. 9, 2010).
Trial court did not err in denying defendant's motion to suppress drugs seized from his car because defendant's brief detention was based upon a reasonable suspicion of criminal activity, and because defendant's uncle ran to defendant's car, a police officer's suspicions of criminal activity were specifically and reasonably directed toward defendant; when the uncle exited defendant's vehicle at the officer's approach and dropped a baggie of cocaine the officer's original suspicions were confirmed with respect to the uncle, and with respect to defendant, the officer's original suspicions were not only unresolved but based upon his experience in narcotics transactions, were also heightened due to the uncle's proximity to him. Perry v. Commonwealth,, 2010 Va. App. LEXIS 406 (Oct. 19, 2010).
Motion to suppress was properly denied where officer had reasonable, articulable suspicion to stop defendant's vehicle based on the officer's observation that the license plate decal referring to the month of registration on defendant's car appeared to be ripped in half. Based on that circumstance, a reasonable officer certainly would have suspected that the decal was cut up or altered radically and therefore, had been mutilated under § 46.2-607 . Williams v. Commonwealth,, 2011 Va. App. LEXIS 41 (Feb. 8, 2011).
Evidence found during an investigatory stop was admissible, because the circumstances justified reasonable suspicion that defendant might not have been using an unregistered truck consistent with the statutory exemptions for farm use vehicles; the truck displayed a store-bought farm use tag, three people were in the truck, and the truck was on the road late at night in the winter after a snowstorm. Shifflett v. Commonwealth, 58 Va. App. 732, 716 S.E.2d 132, 2011 Va. App. LEXIS 314 (2011).
Motion to suppress was properly denied, because, police had a reasonable, articulable suspicion that defendant was engaged in criminal activity, i.e., that he was in possession of contraband when they seized defendant, and defendant did not merely refuse to consent or cooperate, he initially agreed to both a pat down and a search of his outer clothing for drugs, weapons, and other illegal items and then lied about the existence of interior pockets. Hargrove v. Commonwealth,, 2012 Va. App. LEXIS 25 (Jan. 31, 2012).
Trial court did not err in denying defendant's motion to suppress a firearm seized from defendant's person. The officer had reasonable suspicion under U.S. Const. amend. IV that defendant possessed a concealed weapon, justifying a pat down, as defendant kept placing his hands in his pockets despite instructions to remove them, he was sweating profusely on a cold night, and he was nervous. Blanchard v. Commonwealth,, 2012 Va. App. LEXIS 110 (Apr. 10, 2012).
Defendant's motion to suppress was properly denied, where the officer's observations of defendant and another sitting in a vehicle in an area known for drug trafficking and making furtive gestures contributed to providing a reasonable officer with reasonable, articulable suspicion that defendant was connected with criminal activity that was afoot. Beasley v. Commonwealth, 60 Va. App. 381, 728 S.E.2d 499, 2012 Va. App. LEXIS 232 (2012).
Police officer had reasonable suspicion to believe that criminal activity was afoot and was duty bound to further investigate after the officer observed two individuals in a stairwell of an apartment complex known as a high crime area and, upon the officer's arrival, defendant's companion threw down an object, which the officer suspected was drugs. Ferguson v. Commonwealth,, 2013 Va. App. LEXIS 33 (Jan. 29, 2013).
Reasonable suspicion that criminal activity was afoot. - Motion to suppress was properly denied because the officer had reasonable suspicion to believe that criminal activity was afoot, thereby supporting the stop and frisk under Terry . Defendant walked away from the car at a fast pace as the officer approached, despite the fact that defendant had only been at the car window a few seconds; as defendant walked away, defendant was digging in defendant's pocket, causing the officer to believe defendant was reaching for a weapon; and defendant failed to heed the officer's repeated demands to stop. Thomas v. Commonwealth,, 2007 Va. App. LEXIS 384 (Oct. 16, 2007).
Trial court's order suppressing a baggie containing cocaine was erroneous because the investigatory stop of defendant was supported by reasonable suspicion that criminal activity was afoot; the evidence showed that defendant waived the baggie at two complete strangers, kissed it, and exclaimed "Woo" before driving off, and that the off-duty officer witnessing the behavior recognized the baggie as the type used to package cocaine. Commonwealth v. Jenkins,, 2007 Va. App. LEXIS 377 (Oct. 9, 2007).
Motion to suppress should not have been granted where the totality of the circumstances supported an officer's reasonable suspicion to detain defendant; the officer observed a known drug user put his hands into a car in which defendant sat, the user withdrew his hands when he saw the officer approach, defendant moved his hands to the glove compartment and then to the floorboard, and the officer conducted a protective sweep. Commonwealth v. Granger, No. 2082-07-1, 2008 Va. App. LEXIS 68 (Feb. 12, 2008).
Trial court did not err in denying defendant's motion to suppress evidence obtained as the result of an investigative detention because defendant's apparent attempt to move his hand-rolled cigarette to a place where police officers could not see it, together with his headlong flight when the officers approached him, met the standard of a reasonable suspicion of criminal activity; the trial judge did not err in considering defendant's flight from the officers in deciding his motion to suppress because defendant had not yet been seized at the time he ran away. Carter v. Commonwealth,, 2008 Va. App. LEXIS 177 (Apr. 15, 2008).
Motion to suppress a butterfly knife was properly denied where an officer had a reasonable articulable suspicion to detain defendant and determine whether he was involved in the use of narcotics. The totality of the circumstances were that: (1) the police spotted defendant, a habitual user of narcotics, loitering in an area known for drug distribution and use; (2) he entered a van, traveled to another location with two other men, and then huddled with them outside the van while one of the men was bent over and using a lighter in a manner consistent with inhaling crack cocaine; (3) defendant repeatedly looked over his shoulder, as if watching for the police or others; and (4) one of the men fled as the police officers converged, consistent with a diversionary tactic commonly used to divert officers' attention and permit the other members of the group to dispose of contraband. Thompson v. Commonwealth, 51 Va. App. 205, 656 S.E.2d 409, 2008 Va. App. LEXIS 59 (2008), rev'd, 277 Va. 280 , 673 S.E.2d 469 (2009) (as to whether butterfly knife was weapon of like kind).
Trial court did not err by denying defendant's motion to suppress because the facts known to officers at the time of the traffic stop of defendant were sufficient to justify the stop and constituted reasonable articulable facts of criminal activity; the police had determined that defendant was a suspect in a series of commercial burglaries and tracked his vehicle to an office park when no business was being conducted, and the person who left the building carrying a concealed object matched defendant's description and got in a car known to be registered to him. Baker v. Commonwealth,, 2011 Va. App. LEXIS 358 (Nov. 22, 2011).
Trial court did not err in denying defendant's motion to suppress cocaine that he spit from his mouth because the facts were sufficient to establish both reasonable suspicion for defendant's detention at the time he was removed from a car and probable cause to search him when an officer ordered him to open his mouth; the totality of the circumstances, viewed in light of the officer's experience, were sufficient to provide him with reasonable suspicion to believe criminal activity was afoot and that defendant was involved in it. King v. Commonwealth,, 2012 Va. App. LEXIS 143 (May 8, 2012).
Lack of reasonable suspicion to initiate a pat down. - Denial of motion to suppress was error, because the officer lacked reasonable suspicion to pat down defendant based only on the fact that defendant was loitering in front of a store known to be the site of drug distribution and drug arrests and defendant appeared nervous; no other facts suggested that defendant was involved in the distribution of drugs, such as hand-to-hand transaction, contact with other, or maintenance of a stash. Thompson v. Commonwealth, 54 Va. App. 1, 675 S.E.2d 832, 2009 Va. App. LEXIS 212 (2009).
Trial court erred in denying defendant's motion to suppress a glass pipe a police officer recovered during a pat down because the officer failed to articulate any facts and circumstances that, when viewed objectively, would lead any reasonable police officer to conclude that defendant was armed or dangerous; although defendant seemed nervous at the prospect of being patted down, the record contained no factual evidence from which any reasonable police officer could infer that he was either violent or that he was in possession of a weapon. Baker v. Commonwealth, 57 Va. App. 181, 700 S.E.2d 160, 2010 Va. App. LEXIS 404 (2010).
Tip failed to support deputy's answer and resulting evidence inadmissible. - Evidence was properly suppressed because, even if the informant was known and met the highest indicia of reliability, the tip failed to support the deputy's seizure of defendant because the tip did not relay information describing possible illegal activity that was corroborated by the officer. Commonwealth v. Johnson,, 2008 Va. App. LEXIS 394 (Aug. 11, 2008).
Legal basis to detain. - Denial of defendant's motion to suppress was proper where the police officer had a legal basis to detain defendant based on defendant's presence in a restaurant parking lot at 12:40 a.m., when the restaurant was closed, and the posted warning sign that reserved use of the parking lot for patrons only; the fact that the officer's suspicion of trespassing could have been wrong did not make it unreasonable. Raab v. Commonwealth, 50 Va. App. 577, 652 S.E.2d 144, 2007 Va. App. LEXIS 444 (2007).
Protective sweep. - Because defendant claimed to be "heavily armed," and the police believed that another person might be in the residence, a protective sweep that took place immediately after defendant was arrested outside the residence did not violate the Fourth Amendment, and the officers could seize a gun that was found in plain sight; therefore, the trial court properly denied defendant's § 19.2-60 motion to suppress. Williams v. Commonwealth, 49 Va. App. 439, 642 S.E.2d 295, 2007 Va. App. LEXIS 113 (2007).
Investigatory stop. - Given the circumstances, in which officers stopped defendant after a reported bank robbery, they had ample reason to restrain defendant by handcuffing defendant and placing defendant in a patrol car during an investigatory stop. The officers faced exactly the kind the situation the Fourth Amendment placed outside the reach of "unrealistic second-guessing" by courts. Archie v. Commonwealth,, 2007 Va. App. LEXIS 286 (July 31, 2007).
Denial of defendant's motion to suppress was proper because the investigatory stop was based on reasonable, articulable suspicion that defendant was trespassing on the subject property, owned by the housing authority; defendant's subsequent admission to trespassing led to his arrest and a valid search, which led to the discovery of the drugs. Watson v. Commonwealth,, 2007 Va. App. LEXIS 408 (Nov. 13, 2007).
Trial court properly admitted a firearm into evidence where defendant's actions, walking around to the passenger side of the parked car after being told to stop by the officers, sitting down in the car, and making furtive gestures underneath the passenger seat, provided reasonable suspicion criminal activity was afoot; in addition, the driver's consent to search the vehicle provided an independent basis for the search of the vehicle. Woodhouse v. Commonwealth, No. 1643-06-1, 2008 Va. App. LEXIS 1 (Jan. 8, 2008).
Because a dog's alert created probable cause to search defendant's car, defendant's motion to suppress the firearm found in the vehicle's trunk was properly denied. Jones v. Commonwealth, No. 1190-07-1, 2007 Va. App. LEXIS 499 (Oct. 30, 2007), aff'd, 277 Va. 171 , 670 S.E.2d 727 (2009).
Evidence supported the denial of defendant's motion to suppress because the police developed, first, reasonable suspicion for the detention and, then, probable cause for defendant's arrest, and the evidence supported a finding that, at the time of the seizure, reasonable suspicion existed to believe defendant could have been involved in a crime; when the officer first approached defendant she knew that he fit the robber's general description, defendant admitted that he had just come from the shopping center in which the robbery had occurred, and once the seizure had occurred, officers worked to confirm or dispel the suspicions supporting the detention. Clark v. Commonwealth, No. 0946-10-1, 2011 Va. App. LEXIS 282 (Sept. 20, 2011).
Reasonable suspicion required to make investigatory stop. - Trial court erred in denying defendant's motion to suppress because the officer lacked the reasonable suspicion required to conduct an investigative traffic stop under the Fourth Amendment; the anonymous tip received by the officer failed to include predictions about defendant's future behavior and the officer observed defendant driving within the speed limit and did not see defendant's car swerve. Harris v. Commonwealth, 276 Va. 689 , 668 S.E.2d 141, 2008 Va. LEXIS 108 (2008), cert. denied, 2009 U.S. LEXIS 7645 (U.S. 2009).
Evidence deemed admissible. - Trial court correctly refused to suppress either the weapon found on the defendant during a pat down search, following a tip from a concerned citizen that the defendant was brandishing a weapon, or the crack cocaine found on the defendant during a search incident to the defendant's arrest because the tip provided information permitting the officers to reasonably infer that it: (1) came from a concerned citizen making a contemporaneous, eyewitness report; (2) involved an open and obvious crime rather than mere concealed illegality; and (3) described criminality posing an imminent danger to the public, therefore, the officers correctly concluded the totality of the circumstances raised a reasonable suspicion to believe that criminal activity may be afoot. Jackson v. Commonwealth, 39 Va. App. 624, 576 S.E.2d 206, 2003 Va. App. LEXIS 37 (2003).
Defendant's broad and unfocused questions to law-enforcement officers, and continuous insistence on desiring to talk to them about his passenger's involvement in suspicious activity, despite numerous warnings given to him regarding his rights under Miranda, established that police did not violate his right to counsel and right to remain silent; thus, the trial court properly denied suppression of the evidence seized and his statements, and his convictions for possession with intent to distribute and transporting more than one ounce of cocaine into the Commonwealth with the intent to distribute were affirmed. Medley v. Commonwealth, 44 Va. App. 19, 602 S.E.2d 411, 2004 Va. App. LEXIS 453 (2004).
Trial court properly denied suppression of the evidence seized against defendant, where officers had reason to believe that defendant was involved in a drug transaction in a high-drug trafficking area, defendant had prior arrests for narcotics violations, intelligence supplied information that defendant had possessed a firearm in that same location, and an officer knew that defendant had been previously convicted of a felony when he felt a gun on defendant's waistband. Spinner v. Commonwealth, No. 2548-03-3, 2004 Va. App. LEXIS 490 (Ct. of Appeals Oct. 12, 2004).
In the prosecution of possession of cocaine with intent to distribute, the trial court did not err in denying defendant's motion to suppress evidence seized from his person, because: (1) defendant's non-verbal response to an investigating officer intimated that defendant was inviting a pat-down frisk of his person, by automatically assuming the frisk position; and (2) defendant could not be heard to complain by his voluntary acts of submitting to a pat-down frisk, given that the encounter was brief and defendant was not boxed in; moreover, the record adequately reflected that it was immediately apparent to the officer from his initial pat-down that the flat oblong, odd shaped rock he felt in defendant's pant pocket was crack cocaine. Graham v. Commonwealth,, 2005 Va. App. LEXIS 287 (July 19, 2005).
Defendant's motion to suppress evidence was properly denied; although defendant's property was transferred to federal authorities, it never lost its status as evidence, and defendant failed to formally move for the return of his property as required by §§ 19.2-58 and 19.2-60 , so defendant's prostitution-related convictions were appropriate. United States v. Jenkins, 149 Fed. Appx. 129, 2005 U.S. App. LEXIS 18376 (4th Cir. Aug. 25, 2005), cert. denied, 546 U.S. 1120, 126 S. Ct. 1092, 163 L. Ed. 2d 907 (2006).
Based on a citizen informant's statement that defendant confessed the burglary to her, the victim's information, and the victim's sister's statement that defendant's DVD collection was bigger after the burglary, the officer had probable cause to obtain a search warrant and to freeze the scene by excluding people from the premises for a reasonable time while obtaining a warrant; that same information provided officers with at least reasonable suspicion to detain defendant for a reasonable period of time while obtaining and executing a search warrant. Because the evidence supported a finding that the actions of the police were reasonable under the circumstances, their decision to freeze the scene by requiring defendant to stay and preventing others from entering did not compel the conclusion that her consent to the search of her house was involuntary, and, furthermore, the officers' failure to clearly indicate to defendant that she had a legal right to delimit the scope of the search did not compel the conclusion that her consent to search the house was involuntary. Thomas v. Commonwealth,, 2005 Va. App. LEXIS 363 (Sept. 20, 2005).
Under the plain feel exception, the officer's belief that the substance was marijuana upon patting defendant's pocket and without further manipulating its contents, if found credible by the trial court, was sufficient to provide probable cause to seize the contents of the pocket; thus, where the events leading up to the same were consensual, the trial court properly denied defendant's motion to suppress the contraband seized. Taylor v. Commonwealth, No. 2856-04-2, 2006 Va. App. LEXIS 78 (Mar. 7, 2006).
Defendant's motion to suppress a photograph was properly denied as two officers did not turn a consensual encounter into a seizure when they photographed defendant; the officers only had a conversation with defendant and asked for permission to photograph him. They did not coerce defendant into compliance as neither officer physically touched defendant, made any threats or demands, drew their weapons, or engaged in any other form of aggressive behavior. Clay v. Commonwealth,, 2006 Va. App. LEXIS 118 (Mar. 28, 2006).
Motion to suppress was erroneously granted because the search of defendant's purse did not violate the Fourth Amendment where it was conducted incident to a valid arrest. The officer's had probable cause to stop defendant's vehicle for a traffic violation, the officers did not impermissibly extend scope of the stop by asking defendant questions about drug paraphernalia, and the officers had probable cause to arrest defendant based on her admission to possession of a crack cocaine stem. Commonwealth v. Briggs,, 2006 Va. App. LEXIS 125 (Apr. 4, 2006).
Trial court did not err in denying defendant's motion to suppress the cocaine seized from his person after his valid arrest merely because the police conducted a warrantless strip and body cavity search, as an officer removed a protruding bag of suspected narcotics from defendant's anus without exposing his genitals or anal cavity upon being told by defendant's wife that such would be found therein; hence, the search was incidental to defendant's arrest, not an improper strip or body cavity search, and was not unreasonable under the Fourth Amendment. Nowlin v. Commonwealth, No. 3050-05-4, 2006 Va. App. LEXIS 552 (Dec. 12, 2006).
Evidence obtained in a warrantless search was admissible because the officers were justified in searching for a weapon, seizing that weapon, and arresting defendant after defendant raised his arms in air and revealed a bulge in his clothing that the officer tapped with a flashlight causing a noise he believed indicated the presence of a "heavy metal object," which the officer then believed to be a weapon. Taylor v. Commonwealth,, 2007 Va. App. LEXIS 54 (Feb. 20, 2007).
Defendant's motion to suppress was properly denied, as evidence of wire transfers from defendant to Trinidad and Tobago, the last one being only three days before the first package of cocaine arrived at defendant's apartment, was admissible because it was not so remote in time as to be without probative value; nor was it speculative. Patton v. Commonwealth,, 2007 Va. App. LEXIS 295 (Aug. 7, 2007).
Because the facts and circumstances surrounding defendant's arrest outside of his home justified a warrantless search of that home, after officers broke through the barricaded door of the home after apprehending defendant, pursuant to either the exigent circumstances or protective sweep exceptions to the warrant requirement, the Court of Appeals did not err in reversing the circuit court's denial of defendant's motion to suppress the evidence seized as a result. Commonwealth v. Robertson, 275 Va. 559 , 659 S.E.2d 321, 2008 Va. LEXIS 49 (2008).
Defendant's motion to suppress was properly denied since the officers had reasonable articulable suspicion that defendant possessed a concealed weapon, a "black object" in a bag in defendant's vehicle, and that such possession rendered defendant potentially armed and dangerous. The officer's search of the bag was reasonable, as the bag was within defendant's immediate control, was big enough to contain a weapon, and the officer felt a hard object inside before the officer opened the bag. Jones v. Commonwealth, 52 Va. App. 548, 665 S.E.2d 261, 2008 Va. App. LEXIS 410 (2008).
Denial of defendant's motion to suppress drugs discovered during a pat down was proper, because the officer's initial approach was consensual, the officer did not seize defendant until the officer discovered that defendant was trespassing, and the officer's frisk of defendant, to determine if defendant was armed, did not exceed its proper constitutional scope. Bandy v. Commonwealth, 52 Va. App. 510, 664 S.E.2d 519, 2008 Va. App. LEXIS 382 (2008).
Denial of defendant's motion to suppress was not erroneous since the facts omitted from the affidavit in support of the search warrant did not have a bearing on the existence of probable cause. In addition, the fact that the police initiated contact with the victim was not material to whether there was probable cause defendant obtained money from the victim by false pretenses. Milian v. Commonwealth,, 2008 Va. App. LEXIS 435 (Sept. 23, 2008).
Trial court did not err in denying defendant's motion to suppress, because a reasonably prudent police officer, under the circumstances, would have conducted a pat-down search for the officer's safety and the protection of others after encountering defendant in a parking lot at 3:00 a.m. when responding to a "narcotics-in-progress" call and defendant admitted that defendant was not a registered guest at the motel. Miller v. Commonwealth,, 2008 Va. App. LEXIS 495 (Nov. 4, 2008).
Denial of motion to suppress was proper where the officer handling the narcotics detection dog testified that the officer and the dog trained for eight hours every two weeks, the dog had been with the police for four and a half years, and the dog received training at Virginia Police Work Dog Association, the dog's training and experience was sufficient to establish the dog's reliability and supported a finding of probable cause for the officer's search of defendant's vehicle. Jones v. Commonwealth, 277 Va. 171 , 670 S.E.2d 727, 2009 Va. LEXIS 10 (2009).
Trial court properly denied defendant's motion to suppress, because defendant's encounter with the officers could not be fairly characterized as a seizure; an officer did nothing more than initiate a conversation with defendant and ask if defendant would identify himself, defendant willingly produced ID card, and there was no threat, show of force, or intimidation. Venable v. Commonwealth,, 2008 Va. App. LEXIS 570 (Dec. 30, 2008).
Because the trial court explicitly declined to credit the portion of defendant's mother's testimony that supported defendant's argument that her consent to a search of her residence was coerced, defendant's motion to suppress was properly denied. Waller v. Commonwealth,, 2009 Va. App. LEXIS 103 (Mar. 4, 2009).
Police had probable cause to seize the firearm and reasonable suspicion to detain defendant where the firearm, which was under the armrest of defendant's car, was sufficiently hidden to give police officers probable cause to believe the object was evidence that defendant had committed the crime of concealing a weapon. The fact that defendant had been sitting alone in the car was sufficient to provide a reasonable officer with probable cause to believe that defendant had a firearm "about his person," in violation of § 18.2-308 . White v. Commonwealth,, 2009 Va. App. LEXIS 107 (Mar. 4, 2009).
Denial of defendant's motion to suppress was proper, where the police officer initiated a consensual encounter with defendant, which developed into reasonable suspicion of trespassing after the police officer observed defendant enter housing authority property posted with "no trespassing" signs and exit the property almost immediately, providing no credibility for defendant's story about coming from defendant's girlfriend's residence. Pettis v. Commonwealth,, 2009 Va. App. LEXIS 135 (Mar. 24, 2009).
Trial court correctly denied defendant's motion to suppress evidence a police officer recovered from his person because the seizure of defendant was reasonable under the totality of the circumstances; the officer was justified in detaining defendant in order to conduct a pat-down search for weapons and to protect his personal safety because defendant persistently attempted to reach into his pants pocket. Pettaway v. Commonwealth,, 2009 Va. App. LEXIS 178 (Apr. 21, 2009).
Denial of motion to suppress was proper where defendant voluntarily consented to a search of defendant's person; at the time that defendant told the officer "you can search me if you want," defendant's identification had been returned and defendant was told that defendant was free to leave, defendant remained at the scene to make sure defendant's friend, who had been arrested on an outstanding warrant, was okay. Samy v. Commonwealth,, 2009 Va. App. LEXIS 194 (Apr. 28, 2009).
Trial court erred in granting defendant's motion to suppress, because the evidence, viewed in the light most favorable to defendant, compelled the conclusion that the search of defendant's vehicle was reasonable under the Fourth Amendment; the proper test was whether the van was apparently rather than actually mobile. Commonwealth v. Grimes,, 2009 Va. App. LEXIS 248 (June 2, 2009).
Trial court erred in granting defendant's motion to suppress evidence, where the initial encounter between defendant and the officer was consensual, the officer had probable cause to arrest and detain defendant after learning that defendant's driver's license was suspended, and the police dog alert, occurring during the lawful detention, provided the officer with probable cause to search defendant's vehicle under the automobile exception. Commonwealth v. Boyd,, 2010 Va. App. LEXIS 432 (Nov. 5, 2010).
Trial court properly denied defendant's motion to suppress, where the police had probable cause and exigent circumstances to enter defendant's home without a warrant; the police needed to gain control of the situation and arrest defendant once they believed that defendant had committed the charged crimes, in order to prevent defendant from washing away DNA evidence from defendant's person and clothing and to minimize any danger to the community. West v. Commonwealth, 54 Va. App. 345, 678 S.E.2d 836, 2009 Va. App. LEXIS 305 (2009).
Failure to suppress evidence was not erroneous, as defendant was not seized until the officer tackled defendant, by which point the officer had more than reasonable suspicion to stop defendant because defendant had committed a traffic violation by not obeying a stop sign while being pursued by officer, giving the officer sufficient justification to stop defendant. Rhoades v. Commonwealth,, 2009 Va. App. LEXIS 322 (July 21, 2009).
Trial court did not err in denying defendant's motion to suppress a handgun that defendant accidentally dropped while fleeing from a police officer because suppression was not required under the exclusionary rule, and the recovery of the handgun by the officer was not fruit of the poisonous tree since the handgun was discovered by means sufficiently attenuated from the officer's initial seizure of defendant, which occurred prior to defendant's flight on foot; because defendant's accidental loss of the handgun during his flight was an independent source for the discovery and recovery of the handgun, separate and sufficiently distinguishable from the officer's seizure of defendant, the discovery of the handgun was not fruit of the poisonous tree since its discovery was not the foreseeable result of the earlier seizure of defendant by the police, and its admissibility was not an "exploitation" of any police action that was illegal. Fitchett v. Commonwealth, 56 Va. App. 741, 697 S.E.2d 28, 2010 Va. App. LEXIS 339 (2010).
Where the police received an anonymous tip of drug activity at defendant's residence involving a white male and a black male and an officer observed, through defendant's open doorway, a black male with a white substance run toward the back of the house, the circumstances provided probable cause for the warrantless search under the exigent circumstances exception to the warrant requirement and the evidence recovered was admissible. Smith v. Commonwealth, 56 Va. App. 592, 696 S.E.2d 211, 2010 Va. App. LEXIS 316 (2010).
Motion to suppress was properly denied, where defendant was still in custody for driving on a suspended license when an officer saw a marijuana stem in defendant's vehicle, and thus, the officers had probable cause to search the vehicle based on the observation of what they believed to be contraband based on prior narcotics experience and specialized training in drug recognition. Dorrough v. Commonwealth,, 2010 Va. App. LEXIS 250 (June 22, 2010).
Trial court erred in granting defendant's motion to suppress, because the officer had a valid basis for the stop where the vehicle matched the description of a vehicle used to flee a shooting and was observed close to the scene within minutes of the shooting, and officers observed various traffic offenses, and the command to exit the vehicle at gunpoint was reasonable where the officer had reason to believe that the driver might be armed and dangerous. Commonwealth v. Hairston,, 2010 Va. App. LEXIS 333 (Aug. 17, 2010).
Because the initial encounter between defendant and a police officer was consensual, and because a seizure did not take place until a drug dog alerted and provided probable cause to believe that defendant was involved in criminal activity, the trial court properly denied defendant's motion to suppress. Lewis v. Commonwealth,, 2011 Va. App. LEXIS 354 (Nov. 15, 2011).
Trial court did not err in denying defendant's motion to suppress, because the officer had probable cause based on his detection of the odor of marijuana, and thus, an independent source existed for the search of defendant's residence and the evidence seized from his person would have been inevitably found during a search incident to arrest. Krebs v. Commonwealth,, 2011 Va. App. LEXIS 400 (Dec. 13, 2011).
Trial court erred by suppressing evidence of marijuana and cocaine found on defendant's person on the grounds that the police officer's subjective intent to identify defendant was unreasonable because defendant's commission of several traffic infractions provided the officer an objectively reasonable basis to conduct an investigatory stop of his vehicle; therefore, it was irrelevant that the officer intended to stop defendant's vehicle for the purpose of determining if defendant was a person wanted for murder. Commonwealth v. Hickman, No. 2055-12-2, 2013 Va. App. LEXIS 121 (Ct. of Appeals Apr. 16, 2013).
Police officers' search of a barn in which defendant lived was valid under U.S. Const. amend. IV, and therefore, defendant's motion to suppress was properly denied. The warrant identified the trailer as the owner's residence and then specifically identified the barn without mentioning whether anyone lived in it; thus, the officers properly searched the barn because the warrant directed them to search the barn. Jeffers v. Commonwealth, 62 Va. App. 151, 743 S.E.2d 289, 2013 Va. App. LEXIS 184 (2013).
Evidence deemed inadmissible. - Where a police officer did not have specific and articulable facts upon which to conclude that defendant was armed and dangerous before frisking defendant for weapons during a traffic stop, the search was unreasonable under the Fourth Amendment; as a result, the trial judge erred in failing to suppress the evidence. Christian v. Commonwealth, No. 0303-03-1, 2004 Va. App. LEXIS 190 (Ct. of Appeals Mar. 2, 2004).
Circuit court properly granted defendant's motion to suppress evidence seized as a result of a traffic stop on grounds that said evidence failed to show a reasonable articulable suspicion that defendant was violating § 46.2-848 or attempting to avoid or evade the checkpoint, and the arresting officer never articulated a reasonable basis as to why he made a vehicle stop of defendant, did not testify that he believed defendant was evading a roadblock, and never stated that he believed that defendant violated, or was about to violate, the law. Commonwealth v. Wells, No. 1869-06-3, 2007 Va. App. LEXIS 9 (Jan. 9, 2007).
Motion to suppress evidence obtained pursuant to a traffic stop of defendant's antique vehicle was improperly denied as the evidence was obtained in violation of U.S. Const., Amend. IV. The trooper stopped the vehicle solely because it displayed no inspection sticker even though, as the trooper acknowledged, exceptions to this requirement were specifically provided in §§ 46.2-730 , 46.2-1157 , and 46.2-1163 for antique vehicles displaying antique tags, and the trooper did not articulate any reasons for suspecting that defendant was operating his vehicle in violation of the permitted uses. Campbell v. Commonwealth,, 2007 Va. App. LEXIS 50 (Feb. 13, 2007).
Trial court erred in denying defendant's motion to suppress because the objective facts in the record did not support a lawful detention of defendant, in that, defendant's mere presence, asleep in the victim's residence after a New Year's party, did not create a reasonable suspicion that he was involved in the victim's domestic dispute with her boyfriend. Moreover, the victim specifically told the officer that defendant was not involved. Lantion v. Commonwealth,, 2007 Va. App. LEXIS 51 (Feb. 13, 2007).
Even if an officer's initial investigative detention of defendant were lawful, the officer's frisk of defendant for weapons was not supported by a reasonable belief that defendant was armed and presently dangerous, and thus, the evidence pursuant to the frisk should have been suppressed. The officer testified that when he awoke defendant, who had been asleep on a bed, defendant merely rolled over and looked at the officer, making no threatening gestures; thus, defendant's admission to the officer upon questioning that he possessed a pocketknife did not establish dangerousness. Lantion v. Commonwealth,, 2007 Va. App. LEXIS 51 (Feb. 13, 2007).
Methamphetamine discovered on spoon in defendant's pocket was the fruit of an unconstitutional search and should have been suppressed; the investigator articulated no reason for believing, before attempting to frisk defendant, that defendant was armed and dangerous but testified that she became concerned defendant might be armed and dangerous after defendant avoided the investigator's attempt to frisk him. Hamm v. Commonwealth,, 2007 Va. App. LEXIS 134 (Apr. 3, 2007).
Search of defendant following a traffic stop violated the Fourth Amendment, and the denial of defendant's motion to suppress was error. A deputy's act of directing defendant to the rear of the car near where another officer stood, followed by the deputy's persistence in seeking permission to search, conveyed to a reasonable person in defendant's position that there was not freedom to leave and converted the encounter into a seizure unsupported by reasonable suspicion or probable cause. Dorsey v. Commonwealth,, 2007 Va. App. LEXIS 176 (May 1, 2007).
Trial judge erred in denying defendant's motion to suppress evidence found in defendant's house pursuant to a search warrant, as the warrant was not supported by Fourth Amendment probable cause due to the affidavit's failure to provide a nexus between defendant's drug possession and his residence. The affidavit asserted that defendant had marijuana on defendant's person and that the officer merely "suspected cocaine residue." Cunningham v. Commonwealth, 49 Va. App. 605, 643 S.E.2d 514, 2007 Va. App. LEXIS 174 (2007).
Deputy did not have reasonable suspicion to make a traffic stop, and defendant's suppression motion was properly granted, as a belief based on a mistaken understanding of the law as to whether a broken passenger side mirror was a violation of law could not constitute the reasonable suspicion required for a constitutional traffic stop since the deputy did not make a mistake of fact about the scope of activities proscribed by the law, and the mistake of law was not objectively reasonable. Commonwealth v. Snyder,, 2007 Va. App. LEXIS 307 (Aug. 14, 2007).
Trial court properly granted defendant's motion to suppress evidence where the game warden was not authorized to conduct a warrantless search of defendant's person and the fruits of that search were thus not admissible, and the Commonwealth was barred from arguing that the game warden affected a custodial arrest because that argument was not presented before the trial court. Commonwealth v. Wilkins,, 2008 Va. App. LEXIS 302 (June 24, 2008).
Due to the officers' lack of a reasonable and articulable suspicion that defendant was engaged in criminal activity, defendant's seizure and the ensuing search of defendant's vehicle were invalid under the Fourth Amendment; thus, any evidence obtained by the officers during the search of defendant's vehicle should have been suppressed. Middlebrooks v. Commonwealth, 52 Va. App. 469, 664 S.E.2d 499, 2008 Va. App. LEXIS 376 (2008).
Although the police officers were authorized to stop defendant's vehicle based upon their reasonable belief that a traffic violation had occurred when defendant stopped in the middle of a travel lane, the trial court erred in denying the motion to suppress because the officers had no reasonable suspicion that defendant had engaged in criminal activity or was armed and dangerous and, thus, there was no justification for a pat down of defendant. Lightfoot v. Commonwealth,, 2008 Va. App. LEXIS 459 (Oct. 14, 2008).
Trial court erred in denying defendant's motion to suppress, because defendant's activities, being in a "high crime area" in the middle of the morning and walking 15 feet to a townhouse upon seeing an officer, did not provide the officer with reasonable suspicion that criminal activity was afoot. Jones v. Commonwealth, 53 Va. App. 171, 670 S.E.2d 31, 2008 Va. App. LEXIS 561 (2008).
Evidence found after the officer stopped defendant's vehicle should have been suppressed, because the fact that defendant was parked at the rear customer entrance to a gas station, at night, in an area where there had been robberies and burglaries, and that defendant appeared to be looking or reaching for something inside the vehicle was insufficient to support an investigative stop. Rudolph v. Commonwealth, 277 Va. 209 , 722 S.E.2d 527, 2009 Va. LEXIS 34, cert. denied, 130 S. Ct. 738, 175 L. Ed. 2d 514, 2009 U.S. LEXIS 8721 (U.S. 2009).
Trial court erred in denying defendant's motion to suppress, because, at time of the officer searched defendant's pants, the officer did not have probable cause to believe that the pants, which were not on defendant, contained contraband or evidence of a crime; among other things, there was no evidence that defendant possessed or displayed a weapon during the argument with defendant's girlfriend. Garland v. Commonwealth,, 2009 Va. App. LEXIS 222 (May 12, 2009).
Where defendant's grandmother had the apparent authority to consent to the search of a car parked in the grandmother's driveway, there was no evidence that the grandmother withdrew consent to search, and the police were not aware that defendant's father was the owner of the car and thus, the fact that the father did not want the car searched was not a basis for withdrawal of consent, the motion to suppress was erroneously granted. Commonwealth v. Ferrell,, 2011 Va. App. LEXIS 47 (Feb. 10, 2011).
Defendant's consent to search, the search, and the evidence seized were the product of an illegal detention, occurring while the defendant was illegally detained and under circumstances in which she was not free to leave or disregard the officer's inquiries. At the time of the encounter, defendant was stopped in a rural area in the nighttime, the police emergency lights were activated the entire time, traffic was light, defendant was the only adult in her vehicle while there were two police officers present at the scene, defendant requested to search the vehicle after the purpose of the initial stop was completed, the officer was in his uniform and his weapon was displayed, and he made this request only after he had informed defendant of illegal drug trafficking in the area and had asked her if she had anything illegal in the vehicle; thus, defendant's motion to suppress was properly granted. Commonwealth v. Crooks,, 2012 Va. App. LEXIS 364 (Nov. 15, 2012).
Trial court erred in denying defendant's motion to suppress on the ground that the community caretaker doctrine was applicable, because the evidence presented failed to implicate public safety concerns or a safeguarding of personal property where the officer testified that he searched defendant's backpack because he was "curious" about its weight, without testifying that he thought the weight was suspicious of activity that posed danger to the public. Knight v. Commonwealth, 61 Va. App. 297, 734 S.E.2d 716, 2012 Va. App. LEXIS 406 (2012).
B. SUPPRESSION OF STATEMENTS, DNA, ETC.
Statements knowingly and voluntarily made. - Police officers did not violate defendant's Fifth Amendment rights, and his waiver of those rights and his subsequent statements to the police were both voluntary and intelligently and knowingly made and should not have been suppressed. Timely Miranda warnings were given twice, defendant said that he understood them but wished to answer police questions, he was 20 years old and aware of what was happening, there was no indication of any coercion, and the police did not use a certain two-step procedure, which in another state had been used essentially to trick suspects into making incriminating statements and allegedly "waiving" their rights and which the United States Supreme Court had already declared was illegal and forbidden. Commonwealth v. Kadian,, 2006 Va. App. LEXIS 246 (May 30, 2006).
Admission of defendant's statements to police was proper where defendant was not threatened during the encounter with police, was advised of Miranda rights in writing and orally, indicated that defendant understood them, and voluntarily, knowingly, and intelligently waived those rights. Angel v. Commonwealth,, 2009 Va. App. LEXIS 125 (Mar. 24, 2009).
Denial of defendant's motion to suppress inculpatory statements made to detectives was proper, as the finding that defendant voluntarily waived defendant's Miranda rights before talking to police was proper; contrary to defendant's claim, defendant's condition did not affect the voluntariness of the waiver, as defendant provided police with specific, accurate information about defendant's work and educational history, and defendant's description of the events surrounding the shooting was consistent with the physical evidence and the statements of witnesses. Oliver v. Commonwealth,, 2009 Va. App. LEXIS 297 (June 30, 2009).
Although defendant invoked the right to counsel, the trial court erred in suppressing defendant's statement to police, because defendant later reinitiated communication with the police and waived defendant's Miranda rights; defendant's waiver was voluntarily, knowingly, and intelligently made and defendant was aware of nature of defendant's Fifth Amendment rights and the potential consequences of abandoning them. Commonwealth v. Edwards,, 2009 Va. App. LEXIS 325 (July 21, 2009).
Defendant's motion to suppress statements made during police interrogation was properly denied, where defendant knowing and intelligently waived defendant's Fifth Amendment privilege against self-incrimination and the detectives' conduct was not coercive and did not overbear defendant's free will; thus, defendant's confession was freely and voluntarily given. Lewis v. Commonwealth,, 2009 Va. App. LEXIS 357 (Aug. 11, 2009).
Defendant not in custody when statements made. - Trial court did not err in denying defendant's motion to suppress statements she made to detectives in the audio-visual room of a police station because defendant was not in custody at the time she made the incriminating statements when she was not under formal arrest, and her freedom of movement was not restricted, and, therefore, the detectives were not required to advise defendant of her Miranda rights; defendant voluntarily went to the police station, and a reasonable person would not think that they were in custody merely because they were moved to another location within the police station and would not have concluded from the duration and character of the interview that she was not free to leave. Durand v. Commonwealth,, 2009 Va. App. LEXIS 419 (Sept. 22, 2009).
Suppression of DNA evidence. - Although defendant's counsel was not notified and thus was not present when a DNA sample was taken, there was no error and no violation of defendant's Sixth Amendment right to counsel, and a trial court properly denied defendant's motion to suppress the DNA evidence, which was derived from a DNA sample taken after defendant was indicted and had retained counsel. The Sixth Amendment right to have counsel present at the critical stages of a criminal proceeding did not extend to preparatory steps, which included the gathering of evidence, such as the taking of fingerprints or DNA evidence, because the risk that counsel's absence at such stages might derogate from a defendant's right to a fair trial was slight. Wilson v. Commonwealth, No. 1097-05-1, 2006 Va. App. LEXIS 243 (May 30, 2006).
Waiver of Miranda rights. - Decision granting defendant's motion to suppress defendant's statements was reversed; an investigator's termination of interrogation for a period of approximately ten minutes did not, in itself, impact the presumption that defendant's waiver of Miranda rights continued. Police were not required to repeat Miranda warnings after the initial interrogation ended. Commonwealth v. Wimbish,, 2006 Va. App. LEXIS 435 (Oct. 3, 2006).
Statements admissible. - Denial of motion to suppress was proper, because defendant's statement made it unclear whether defendant had requested the presence of an attorney during custodial interrogation, or whether defendant had simply expressed a desire to have an attorney appointed to represent defendant at trial and thus, the police were permitted to ask defendant limited questions solely for the purpose of clarifying the statement. Stevens v. Commonwealth, 57 Va. App. 566, 704 S.E.2d 585, 2011 Va. App. LEXIS 31 (2011), aff'd, 2012 Va. LEXIS 15 (Va. 2012).
Trial court did not err in denying defendant's motion to suppress statements, because defendant's statement to his supervisor was not coerced by an explicit threat of discharge or other economic sanction; the prospect of being the named subject of an investigation was not sufficient to bring any admissions defendant made at that time within the ambit of the Garrity principles. Murray v. Commonwealth, No. 1137-12-1, 2013 Va. App. LEXIS 124 (Ct. of Appeals Apr. 23, 2013).
Statements admissible under public safety exception. - Admission of statements defendant made before police advised defendant of defendant's Miranda rights was not error, because the public safety exception to Miranda permitted the officer to ask defendant whether the weapon, five feet away from the officer, was loaded and an immediate danger. Since warnings were not required, there was no taint to statements made after defendant was advised of defendant's Miranda rights. Anderson v. Commonwealth,, 2009 Va. App. LEXIS 114 (Mar. 17, 2009), aff'd, 279 Va. 85 , 688 S.E.2d 605, 2010 Va. LEXIS 13 (2010).
Admissability of out-of-court identification. - Denial of motion to suppress a witness's out-of-court identification based on a single photograph was upheld because the officer, who was investigating an unrelated burglary, had no knowledge that a credit card forgery had previously occurred at the same location and thus, there was no possibility that the officer could have manipulated the witness or misled the witness into identifying defendant as the person who had used the stolen credit card. Logan v. Commonwealth, 51 Va. App. 111, 655 S.E.2d 30, 2008 Va. App. LEXIS 2 (2008).
Unequivocal request for counsel during interrogation. - In a prosecution for first-degree murder, breaking and entering while armed with a deadly weapon, and two counts of using of a firearm in the commission of a felony, because the record evidence showed that defendant failed to make an unequivocal request for an attorney prior to confessing to his crimes, given the surrounding circumstances in which he made his statements concerning counsel, including the tone of the interview and defendant's demeanor, the trial court did not err by admitting his confession into evidence. West v. Commonwealth,, 2008 Va. App. LEXIS 241 (May 20, 2008).
Erroneous denial of defendant's motion to suppress a confession necessitated a new trial, because defendant unambiguously invoked his Fifth Amendment right to counsel before the confession was made and the error was not harmless where the erroneously admitted confession was the only evidence actually placing defendant at the scene of the robbery homicides; the only other evidence linking defendant to the crimes was the testimony of an individual who said he acted as a middleman and who did not name defendant until over a year after the crimes, one day before he himself was scheduled to be tried for the robbery homicides and related crimes. Stevens v. Commonwealth,, 2010 Va. App. LEXIS 244 (June 22, 2010).
Out of court statements deemed admissible. - Suppression of statement erroneous where defendant was not in custody at the time statement was made and thus, no Miranda violation occurred; defendant was not restrained and could have easily ended conversation at any time by disconnecting call. Commonwealth v. Carruitero,, 2007 Va. App. LEXIS 148 (Apr. 10, 2007).
Out of court identifications deemed admissible. - Trial court did not err in admitting out-of-court and in-court identifications by several witnesses based on the use of a single photograph because, while discrepancies existed in the witnesses' descriptions of defendant and three witnesses who made positive out-of-court identifications were unable to identify defendant at the suppression hearing, such issues went to weight of the evidence, not its admissibility. Rountree v. Commonwealth,, 2007 Va. App. LEXIS 279 (July 24, 2007).
Anonymous tip admissible. - Denial of defendant's motion to suppress was proper, because the anonymous tip described a progression of incidents that were corroborated by the officer as the officer approached the scene; among other things, defendant's physical characteristics matched those described, and defendant was running from the apartment complex and had cuts on defendant's face. Roberts v. Commonwealth,, 2009 Va. App. LEXIS 67 (Feb. 10, 2009).
Evidence deemed inadmissible. - Defendant's motion to suppress was properly denied because although defendant was in custody when he identified shorts containing contraband as his, he was not subject to "interrogation" where an "objective observer" would not have perceived the words and actions related to defendant's clothes as being intended to elicit incriminating information from defendant, and thus, Miranda safeguards were not implicated. Emerson v. Commonwealth, 43 Va. App. 263, 597 S.E.2d 242, 2004 Va. App. LEXIS 274 (2004).
Motion to suppress was properly granted as to pre-Miranda warning inculpatory statements because the officers deliberately engaged in a two-stop interrogation strategy, after which no curative measures were taken, and because a reasonable officer would have realized that the questions asked were likely to elicit incriminating responses. Commonwealth v. Bowman,, 2007 Va. App. LEXIS 318 (Aug. 27, 2007).
Evidence of a drug transaction was properly suppressed because: (1) a hand-to-hand transaction occurred within the curtilage of a home in which defendant had a reasonable expectation of privacy; (2) a detective lacked probable cause to enter defendant's backyard prior to observing the drug transaction; (3) the detective could not have seen the transaction without intruding into the curtilage by climbing a fence; and (4) the detective was not in a place from which he could legitimately view that transaction for purposes of the Fourth Amendment. Commonwealth v. Hackett,, 2008 Va. App. LEXIS 120 (Mar. 11, 2008).
Defendant's statements to police should have been suppressed because the officers made it clear that defendant was not free to leave and was in custody, when one officer told another to handcuff defendant and the second officer restrained defendant before putting the handcuffs on, and thus, defendant should have been Mirandized before being asked potentially incriminating questions. White v. Commonwealth,, 2009 Va. App. LEXIS 107 (Mar. 4, 2009).
Evidence deemed admissible. - Motion to suppress was properly denied, because defendant voluntarily consented to a search of his vehicle subsequent to a consensual encounter. The officer told defendant that he was not going to issue a summons in relation to initial traffic stop and that defendant was free to leave, ending the lawful detention; the ensuing encounter, during which the officer requested consent to search the vehicle, was consensual. Santos v. Commonwealth, No. 1133-12-4, 2013 Va. App. LEXIS 159 (Ct. of Appeals May 21, 2013).
Harmless error. - In a case in which defendant was indicted for murdering his wife but was convicted of voluntary manslaughter, even if the trial court erred in denying defendant's motion to suppress the interrogation transcript, defendant's testimony at trial during his case-in-chief waived his right to object to the same evidence on appeal, rendering any error harmless. Abdul-Wasi v. Commonwealth,, 2005 Va. App. LEXIS 180 (May 3, 2005).
CIRCUIT COURT OPINIONS
Return of illegally seized property. - Exclusionary rule of the Fourth Amendment applied to the suppressed evidence of a criminal action in the quasi-criminal forfeiture action; defendant was entitled to the return of money illegally seized. Commonwealth v. Turner, 58 Va. Cir. 576, 2000 Va. Cir. LEXIS 627 (Charlottesville 2000).
Timely execution of search warrant. - Despite an eight-day delay in executing a search warrant, its underlying probable cause was not stale because it suggested a continuing enterprise of drug sales; because no constitutional violation existed and defendant was not prejudiced, defendant's motion to suppress was denied. Commonwealth v. Roy, 55 Va. Cir. 299, 2001 Va. Cir. LEXIS 522 (Richmond 2001).
Inaccurate description of location in warrant. - Where the description of the unit to be searched in a warrant directly conflicted with its actual location, there was insufficient evidence for the police to determine which unit to search; as a result, defendant was entitled to suppress the evidence found. Commonwealth v. Carr, 61 Va. Cir. 491, 2003 Va. Cir. LEXIS 224 (Charlottesville 2003).
Pat-down exceeded acceptable scope of frisk. - Defendant's motion to suppress marijuana a police officer seized from his person was granted because even though the stop and frisk for weapons was permissible under Terry, lifting up defendant's shirt and looking inside his clothing during the pat-down exceeded the acceptable scope of the frisk; the officer's testimony merely disclosed that he saw a bulge and assumed it was a weapon, but a soft bulge in a defendant's waistband was not enough information to justify a conclusion that the item was immediately apparent as contraband. Commonwealth v. Wichael, 84 Va. Cir. 83, 2011 Va. Cir. LEXIS 275 (Augusta County Dec. 20, 2011).
Consent to search. - Although a police officer's initial approach and demand that defendant produce some identification was a reasonable seizure, defendant's surrender of drugs at the officer's instruction was not a consensual search. Commonwealth v. Forest, 62 Va. Cir. 340, 2003 Va. Cir. LEXIS 292 (Norfolk 2003).
Statements knowingly and voluntarily made. - Circuit court denied defendant's motion to suppress statements he made to the police during video-recorded questioning following his arrest because the recording on the whole indicated that defendant was not so impaired as to preclude a voluntary confession, and the conduct of the investigators who conducted the interview did not rise to the level of being coercive and defeating defendant's free will. Commonwealth v. Wilkins, 82 Va. Cir. 20, 2010 Va. Cir. LEXIS 318 (Augusta County Apr. 19, 2010).
Statements admissible. - Defendant's statements to police were admissible as they were unsolicited and not the result of interrogation or its functional equivalent. Commonwealth v. Adderley, 74 Va. Cir. 292, 2007 Va. Cir. LEXIS 186 (Virginia Beach 2007).
Defendant knowingly and intelligently waived his U.S. Const. amend. V right to remain silent as the evidence showed that defendant understood what he was doing when he executed the waiver form. He was advised of his rights in writing and orally in Vietnamese, his native language, and he showed that he was capable of asking appropriate questions when he did not understand something; thus, defendant's motion to suppress his statements was denied. Commonwealth v. Nguyen,, 2012 Va. Cir. LEXIS 24 (Fairfax County Feb. 27, 2012).
Evidence deemed admissible. - Because police officers were dispatched to an apartment based on an informant's report of an "urgent" or "high priority" domestic disturbance and because the officers believed that they heard someone scream after they encountered defendant, who was both drunk and bellicose, at the door, the officers' entry into the apartment did not violate defendant's Fourth Amendment rights. Commonwealth v. Soriano, 68 Va. Cir. 50, 2005 Va. Cir. LEXIS 25 (Fairfax County 2005).
Because a pat-down search of a defendant, after defendant had already told the searching officer that he had two knives on him, did not move out of the bounds of a reasonable Terry stop and could not be characterized as custody associated with a formal arrest, defendant was not entitled to Miranda warnings; hence, without any custody, defendant's statement that the hard tube-like mound in his pocket was marijuana, as well as the marijuana seized as a result, were both admissible. Commonwealth v. Herring,, 2006 Va. Cir. LEXIS 8 (Charlottesville Feb. 13, 2006).
Motion to suppress evidence seized from defendant's residence was denied because the dog sniff was performed based on the consent of the homeowner's daughter, who the police reasonably believed had authority to grant such consent. Commonwealth v. Hoa Lam,, 2006 Va. Cir. LEXIS 26 (Fairfax County Jan. 5, 2006).
Although the evidence of field sobriety tests conducted on defendant by a university police officer who was outside the university police department's patrol area may have been gathered in violation of the "color of office" doctrine, the officer's actions were in reliance on the authority of former § 19.2-17 , which the officer reasonably and in good faith believed to be the established law. Therefore, defendant's motion to suppress the evidence of the field sobriety tests was denied. Commonwealth v. Thompson, 69 Va. Cir. 283, 2005 Va. Cir. LEXIS 321 (Charlottesville 2005).
Defendant's motion to suppress was denied, as officers testified that they witnessed an improper lane change made by defendant in heavy traffic. Because the officers witnessed defendant driving in a manner that suggested defendant was violating traffic ordinances, there was an objective basis for stopping defendant's car. Commonwealth v. Clark,, 2006 Va. Cir. LEXIS 274 (Roanoke County Oct. 16, 2006).
Where officers responded to an apartment property manager's tip regarding trespassing and drug activity, detained two defendants, and seized a bag from defendants, suppression was not warranted, because the officers executed a proper Terry stop since the tip came from a known informant and the officers had a reasonable belief that criminal activity was afoot; the officers had a reasonable suspicion that there could be a weapon in the bag based on a reasonable suspicion of drug activity and the actions and words of both defendants. Commonwealth v. Cosentine,, 2003 Va. Cir. LEXIS 384 (Loudoun County Mar. 24, 2003).
Evidence obtained during search of defendant's house and neighbor's attic was admissible because the affidavit supporting the search warrant for defendant's home met the test for probable cause and thus, search of defendant's home and derivative search of the neighbor's attic were permissible. Commonwealth v. Adderley, 74 Va. Cir. 292, 2007 Va. Cir. LEXIS 186 (Virginia Beach 2007).
Defendant's motion to suppress was partially denied because: (1) a traffic stop was proper since officers had probable cause to believe that the occupants committed a traffic infraction because the driver turned right through a red light; and (2) defendant's arrest was supported by probable cause since an officer saw in plain view a plastic bag filled with marijuana near defendant. Commonwealth v. Andrews,, 2007 Va. Cir. LEXIS 260 (Prince William County June 1, 2007).
Defendant's motion to suppress drug paraphernalia that a police officer seized during a search of his person was denied because the search, which was not a pretext for investigation, would have inevitably yielded the contraband found on defendant; even if the officer lacked probable cause to arrest defendant, defendant was plainly intoxicated and seeking help from the police, and if the officer had not arrested defendant, he would have ultimately and inevitably discovered the drugs as incident to a search while transporting defendant in the police car because defendant would have been subject to a limited search pursuant to standard police procedure. Commonwealth v. Poole, 74 Va. Cir. 561, 2006 Va. Cir. LEXIS 328 (Charlottesville Dec. 12, 2006).
Defendant's statements to police were admissible, as defendant knowingly and intelligently waived defendant's Miranda rights; defendant testified that defendant knew that defendant had a right not to talk to police and that defendant did not ask for counsel. The items seized from a car defendant had been passenger in were admissible, as the search did not violate defendant's rights under the Fourth Amendment where vehicle owner gave police permission for the search and defendant had neither standing to object to the vehicle search nor an expectation of privacy in it. Commonwealth v. Porter, 74 Va. Cir. 343, 2007 Va. Cir. LEXIS 286 (Roanoke County 2007).
Evidence deemed inadmissible. - Motion to suppress evidence found in the trunk of a car after consent to search was given was granted because officers failed to return defendant's license after checking for outstanding warrants; the officers had no warrant, and there was no reasonable articulable suspicion that criminal activity was afoot where a car was stopped merely because officers suspected that the driver had a suspended license. Commonwealth v. Washington, 64 Va. Cir. 149, 2004 Va. Cir. LEXIS 185 (Norfolk 2004).
Court granted a defendant's motion to suppress since the officer directed her to get in his police van, and, with his badge and gun showing, threatened prosecution, and obtained statements and evidence in the custodial interrogation without giving Miranda warnings. It was not shown that defendant was free to leave the van. Commonwealth v. Meyers, 65 Va. Cir. 398, 2004 Va. Cir. LEXIS 285 (Fauquier County 2004).
As defendant's arrest for driving under the influence was made by an officer who did not have the statutory authority to make an arrest outside of a university's jurisdiction, the arrest was not a lawful arrest sufficient to implement the implied consent law, § 18.2-268.2 . Defendant's motion to suppress a certificate of the breath test analysis therefore had to be granted. Commonwealth v. Thompson, 69 Va. Cir. 283, 2005 Va. Cir. LEXIS 321 (Charlottesville 2005).
Since the officer lacked reasonable, articulable suspicion of criminal activity that would have permitted a Terry stop and there was no reason to believe that defendant needed police assistance, defendant was entitled to suppression of drugs seized when the officer approached defendant's car parked on the side of the road during the early morning hours. In re Commonwealth,, 2008 Va. Cir. LEXIS 114 (Roanoke County Sept. 4, 2008).
§ 19.2-60.1. Use of unmanned aircraft systems by public bodies; search warrant required.
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As used in this section, unless the context requires a different meaning:
"Unmanned aircraft" means an aircraft that is operated without the possibility of human intervention from within or on the aircraft.
"Unmanned aircraft system" means an unmanned aircraft and associated elements, including communication links, sensing devices, and the components that control the unmanned aircraft.
- No state or local government department, agency, or instrumentality having jurisdiction over criminal law enforcement or regulatory violations, including but not limited to the Department of State Police, and no department of law enforcement as defined in § 15.2-836 of any county, city, or town shall utilize an unmanned aircraft system except during the execution of a search warrant issued pursuant to this chapter or an administrative or inspection warrant issued pursuant to law.
- Notwithstanding the prohibition in this section, an unmanned aircraft system may be deployed without a warrant (i) when an Amber Alert is activated pursuant to § 52-34.3 ; (ii) when a Senior Alert is activated pursuant to § 52-34.6 ; (iii) when a Blue Alert is activated pursuant to § 52-34.9 ; (iv) where use of an unmanned aircraft system is determined to be necessary to alleviate an immediate danger to any person; (v) by a law-enforcement officer following an accident where a report is required pursuant to § 46.2-373 , to survey the scene of such accident for the purpose of crash reconstruction and record the scene by photographic or video images; (vi) by the Department of Transportation when assisting a law-enforcement officer to prepare a report pursuant to § 46.2-373 ; (vii) for training exercises related to such uses; (viii) if a person with legal authority consents to the warrantless search; or (ix) by a law-enforcement officer to (a) aerially survey a primary residence of the subject of the arrest warrant to formulate a plan to execute an existing arrest warrant or capias for a felony offense or (b) locate a person sought for arrest when such person has fled from a law-enforcement officer and a law-enforcement officer remains in hot pursuit of such person.
- The warrant requirements of this section shall not apply when such systems are utilized to support the Commonwealth or any locality for purposes other than law enforcement, including damage assessment, traffic assessment, flood stage assessment, and wildfire assessment. Nothing herein shall prohibit use of unmanned aircraft systems for private, commercial, or recreational use or solely for research and development purposes by institutions of higher education and other research organizations or institutions.
- Evidence obtained through the utilization of an unmanned aircraft system in violation of this section is not admissible in any criminal or civil proceeding.
- In no case may a weaponized unmanned aircraft system be deployed in the Commonwealth or its use facilitated in the Commonwealth by a state or local government department, agency, or instrumentality or department of law enforcement in the Commonwealth except in operations at the Space Port and Naval/Aegis facilities at Wallops Island.
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Nothing herein shall apply to the Armed Forces of the United States or the Virginia National Guard while utilizing unmanned aircraft systems during training required to maintain readiness for its federal mission or when facilitating training for other U.S. Department of Defense units.
(2015, cc. 764, 774; 2018, cc. 419, 546, 654; 2019, c. 781.)
The 2018 amendments. - The 2018 amendment by c. 419 inserted "or any locality" in the first sentence of subsection D.
The 2018 amendments by cc. 546 and 654 are nearly identical, and added clauses (v) and (vi) and made related changes in subsection C. Subsection C is set out in the form above at the direction of the Virginia Code Commission.
The 2019 amendments. - The 2019 amendment by c. 781, in subsection C, added clause (ix) and made stylistic changes.
Chapter 6. Interception of Wire, Electronic or Oral Communications.
Sec.
Research References. - Virginia Forms (Matthew Bender). No. 9-2101. Motion to Suppress--Illegal Warrantless Search, et seq.
Michie's Jurisprudence. - For related discussion, see 16 M.J. Right of Privacy, § 1; 18 M.J. Telegraph and Telephone Companies, § 2.
§ 19.2-61. Definitions.
As used in this chapter:
"Aggrieved person" means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed;
"Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception;
"Communications common carrier" means any person engaged as a common carrier for hire in communication by wire or radio or in radio transmission of energy;
"Contents" when used with respect to any wire, electronic or oral communication, includes any information concerning the substance, purport or meaning of that communication;
"Electronic, mechanical or other device" means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:
- Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business; or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law-enforcement officer in the ordinary course of his duties;
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A hearing aid or similar device being used to correct subnormal hearing to not better than normal;
"Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system. The term does not include:
- Any wire communication or oral communication as defined herein;
- Any communication made through a tone-only paging device;
- Any communication from an electronic or mechanical device which permits the tracking of the movement of a person or object; or
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Any electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;
"Electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications;
"Electronic communication system" means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications;
"Electronic storage" means any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof and any storage of such communication by an electronic communication service for purposes of backup protection of such communication;
"Intercept" means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device;
"Investigative or law-enforcement officer" means any officer of the United States or of a state or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses;
"Judge of competent jurisdiction" means a judge of any circuit court of the Commonwealth with general criminal jurisdiction;
"Monitor" or "monitoring" means the actual auditory or visual acquisition of an intercepted communication by any means;
"Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations but does not include any electronic communication;
"Pen register" means a device or process that records or decodes dialing, routing, addressing or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted; however, such information shall not include the contents of any communication. The term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of the provider's or customer's business;
"Person" means any employee or agent of the Commonwealth or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation;
"Readily accessible to the general public" means, with respect to a radio communication, that such communication is not (i) scrambled or encrypted; (ii) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication; (iii) carried on a subcarrier or other signal subsidiary to a radio transmission; (iv) transmitted over a communication system provided by a communications common carrier, unless the communication is a tone-only paging system communication; or (v) transmitted on frequencies allocated under Part 25, subpart D, E, or F of Part 74, or Part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under Part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;
"Remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system;
"Trap and trace device" means a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing and signaling information reasonably likely to identify the source of a wire or electronic communication; however, such information shall not include the contents of any communication;
"User" means any person or entity who uses an electronic communication service and is duly authorized by the provider of such service to engage in such use;
"Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of communications.
(Code 1950, § 19.1-89.1; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2002, cc. 588, 623; 2005, c. 934.)
Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and added subdivision (b) 4 in the definition of "electronic communication" and made related changes; inserted "wire or" in the definition for "electronic communication system"; in the definition of "pen register," rewrote the first sentence, which formerly read: " 'Pen register' means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached," and twice substituted "device or process" for "device" in the second sentence; rewrote the definition of "trap and trace device," which previously read: " 'Trap and trace device' means a device which captures the incoming electronic or other impulses identifying the originating number of an instrument or device from which a wire or electronic communication was transmitted; and"; and deleted "and includes electronic storage of such communication" at the end of the definition of "wire communication."
The 2005 amendments. - The 2005 amendment by c. 934 inserted the definition of "'Monitor' or 'monitoring.'"
Law review. - For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).
CASE NOTES
Definitions of "intercept" in this section and § 19.2-68 B 5 compared. - Prior to the 1980 amendment of § 19.2-68 , adding subdivision B 5 thereof, "intercept" was defined in former subsection (3) of this section and meant an "aural acquisition." Under that definition, a wiretap order could only be entered by a judge sitting in the jurisdiction where the conversation would be heard. Thus, a wiretap order could be entered, for example, in Richmond, where the listening post would be located, while the actual conversation might occur in Franklin County. This would deprive the local authorities of knowledge of the investigation involving their jurisdiction. To avoid this result, the General Assembly enacted § 19.2-68 B 5, defining "intercept" as the physical act of acquiring the means to intercept the conversation. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
"Oral communication." - Defendant's statements confiding incriminating information did not constitute an oral communication within the meaning of this section, and, thus, defendant's convictions for the rape and forcibly sodomy of defendant's teenage stepdaughter based in part on such evidence were upheld. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).
Persona adopted by police officer not a "Person." - Because the statutory definition of "person" did not include personas, the persona of a preteen child that a police officer adopted when communicating with defendant at a website was not a person for purposes of the Virginia Wiretap Act, § § 19.2-61 to 10.2-70.3. Hence it was the officer, and not the persona, who was a person who was a party to the communications. Pick v. Commonwealth, 72 Va. App. 651, 852 S.E.2d 479, 2021 Va. App. LEXIS 5 (2021).
Applied in Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846; Reed v. Commonwealth, No. 1305-15-4, 2016 Va. App. LEXIS 233 (Ct. of Appeals Aug. 30, 2016).
§ 19.2-62. Interception, disclosure, etc., of wire, electronic or oral communications unlawful; penalties; exceptions.
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Except as otherwise specifically provided in this chapter any person who:
- Intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire, electronic or oral communication;
- Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical or other device to intercept any oral communication;
- Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, electronic or oral communication knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
- Intentionally uses, or endeavors to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; shall be guilty of a Class 6 felony.
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- It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee or agent of a provider of wire or electronic communications service, whose facilities are used in the transmission of a wire communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. However, a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. It shall not be a criminal offense under this chapter for providers of wire or electronic communications service, their officers, employees and agents, landlords, custodians, or other persons pursuant to a court order under this chapter, to provide information facilities or technical assistance to an investigative or law-enforcement officer, who, pursuant to this chapter, is authorized to intercept a wire, electronic or oral communication. B. 1. It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee or agent of a provider of wire or electronic communications service, whose facilities are used in the transmission of a wire communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. However, a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. It shall not be a criminal offense under this chapter for providers of wire or electronic communications service, their officers, employees and agents, landlords, custodians, or other persons pursuant to a court order under this chapter, to provide information facilities or technical assistance to an investigative or law-enforcement officer, who, pursuant to this chapter, is authorized to intercept a wire, electronic or oral communication.
- It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
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It shall not be a criminal offense under this chapter for any person:
- To intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;
- To intercept any radio communication which is transmitted (i) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress, (ii) by any governmental, law-enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public, (iii) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or (iv) by any marine or aeronautical communications system;
- To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference;
- Using the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted;
- To use a pen register or a trap and trace device pursuant to §§ 19.2-70.1 and 19.2-70.2 ; or
- Who is a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.
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A person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication, other than one to such person or entity or an agent thereof, while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of the addressee or intended recipient. However, a person or entity providing electronic communication service to the public may divulge the contents of any such communication:
- As authorized in subdivision B 1 of this section or § 19.2-67 ;
- With the lawful consent of the originator or any addressee or intended recipient of such communication;
- To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or
- Which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, to a law-enforcement agency. Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted (i) to a broadcasting station for purposes of retransmission to the general public, or (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, is not an offense under this section unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain. Further, private viewing of a satellite video communication that is not scrambled or encrypted and interception of a radio communication that is transmitted on frequencies allocated under subpart D of Part 74 of the Rules of the Federal Communications Commission that is not scrambled or encrypted when the viewing or interception is not done for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, shall not be offenses under this chapter. Violation of this subsection shall be punishable as a Class 1 misdemeanor. (Code 1950, § 19.1-89.2; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2004, c. 149.)
Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .
As to punishment for Class 1 misdemeanors, see § 18.2-11 .
Editor's note. - Acts 2004, c. 149, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2004 amendments. - The 2004 amendment by c. 149 inserted "electronic" preceding the second occurrence of "or oral communication" in subdivision A 4.
Law review. - For an article, "I Spy: The Newsgatherer Under Cover," see 33 U. Rich. L. Rev. 1185 (2000).
For note, "Bartnicki v. Vopper: A Public Concern Exception for the Press and its Disclosure of unlawfully Obtained Information," see 11 Geo. Mason. L. Rev. 441 (2002).
For note, see "Knowledge Is Power: The Fundamental Right to Record Present Observations In Public," 54 Wm. & Mary L. Rev. 1409 (2013).
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 40 Rules of Evidence. § 40.05 Pleas, Statements, and Recordings. Friend.
CASE NOTES
Marital communications. - Defendant's statements confiding incriminating information did not constitute an oral communication within the meaning of § 19.2-61 , the wiretap statute, and, thus, defendant's convictions for the rape and forcibly sodomy of defendant's teenage stepdaughter based in part on such evidence were upheld. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).
Police officer's adoption of persona for communications. - Defendant was not entitled to suppress the contents of website chats that defendant had with a police officer because the officer did not violate the Virginia Wiretap Act, § § 19.2-61 to 19.2-70.3 , when the officer adopted the persona of a preteen child in the website chats with defendant. Pick v. Commonwealth, 72 Va. App. 651, 852 S.E.2d 479, 2021 Va. App. LEXIS 5 (2021).
OPINIONS OF THE ATTORNEY GENERAL
Telephone company employees may disclose contents of intercepted telephone conversations both to law-enforcement officers and in testimony at a criminal trial for the offense of fraudulently obtaining or using telephone service. See opinion of Attorney General to The Honorable Harvey L. Bryant, Commonwealth's Attorney for the City of Virginia Beach, 04-021 (5/27/04).
§ 19.2-63. Manufacture, possession, sale or advertising of certain devices unlawful; penalties; exceptions.
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Except as otherwise specifically provided in this chapter, any person who intentionally:
- Manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications; or
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Places in any newspaper, magazine, handbill, or other publication any advertisement of:
- Any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications, or
- Any other electronic, mechanical, or other device where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire, electronic or oral communications; shall be guilty of a Class 6 felony.
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It shall not be unlawful under this section for:
- A provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such provider in the normal course of the provider's business, or
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An officer, agent, or employee of, or a person under contract with the United States, the Commonwealth or a political subdivision thereof, in the normal course of the activities of the United States, the Commonwealth, or a political subdivision thereof, to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications.
(Code 1950, § 19.1-89.3; 1973, c. 442; 1975, c. 495; 1988, c. 889.)
Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .
§ 19.2-63.1. Supervision and control of devices; unauthorized possession.
Any electronic, mechanical or other device as defined in this chapter which is in the possession of any sheriff's office or police department of a county, city or town, or in the possession of any employee of such office, shall be under the direct control and supervision of the sheriff or chief of police of the office or department or his designee who is an employee of the office or department. Unauthorized possession of any such device under the provisions of this section by any such employee is unlawful, notwithstanding the provisions of subdivision B 2 of § 19.2-63 , and a Class 1 misdemeanor.
(1978, c. 63; 1988, c. 889; 2011, c. 193.)
Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .
The 2011 amendments. - The 2011 amendment by c. 193 added "or his designee who is an employee of the office or department" at the end of the first sentence.
CASE NOTES
Virginia wiretap statute is patterned on a federal statute covering the same subject. Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224, cert. denied, 469 U.S. 862, 105 S. Ct. 198, 83 L. Ed. 2d 130 (1984). See 18 U.S.C.A. § 2517.
Void-for-vagueness doctrine inapplicable. - The portions of the "Virginia Wiretap Statute" which prescribe the procedure for obtaining and conducting a wiretap are not penal in nature, and thus, the void-for-vagueness doctrine is not applicable to them. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
§ 19.2-64. Forfeiture of unlawful devices.
Any electronic, mechanical or other device used, manufactured, assembled, possessed, sold, or advertised in violation of § 19.2-62 or § 19.2-63 may be seized and forfeited to the Commonwealth, and turned over to the court of record in the city or county in which it was seized and such property shall be disposed of in such manner as the court may direct.
(Code 1950, § 19.1-89.4; 1973, c. 442; 1975, c. 495.)
Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).
§ 19.2-65. When intercepted communications and evidence derived therefrom not to be received in evidence.
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, commission, regulatory body, legislative committee or other agency of this Commonwealth or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
(Code 1950, § 19.1-89.5; 1973, c. 442; 1975, c. 495.)
Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).
For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).
CASE NOTES
Admissible communications. - A recording of a whispered conversation between defendant and his mother's boyfriend in a police interrogation room while only defendant, the boyfriend, and defendant's mother were present was admissible against defendant because he had no reasonable expectation of privacy under the circumstances. Belmer v. Commonwealth, 36 Va. App. 448, 553 S.E.2d 123, 2001 Va. App. LEXIS 531 (2001).
Defendant was not entitled to suppress the contents of website chats that defendant had with a police officer because the officer did not violate the Virginia Wiretap Act, §§ 19.2-61 to 19.2-70.3 , when the officer adopted the persona of a preteen child in the website chats with defendant. Pick v. Commonwealth, 72 Va. App. 651, 852 S.E.2d 479, 2021 Va. App. LEXIS 5 (2021).
Applied in Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224 (1984).
§ 19.2-66. When Attorney General or Chief Deputy Attorney General may apply for order authorizing interception of communications.
- The Attorney General or Chief Deputy Attorney General, if the Attorney General so designates in writing, in any case where the Attorney General is authorized by law to prosecute or pursuant to a request in his official capacity of an attorney for the Commonwealth in any city or county, may apply to a judge of competent jurisdiction for an order authorizing the interception of wire, electronic or oral communications by the Department of State Police, when such interception may reasonably be expected to provide evidence of the commission of a felonious offense of extortion, bribery, kidnapping, murder, any felony violation of § 18.2-248 or 18.2-248.1 , any felony violation of Chapter 29 (§ 59.1-364 et seq.) of Title 59.1, any felony violation of Article 2 (§ 18.2-38 et seq.), Article 2.1 (§ 18.2-46.1 et seq.), Article 2.2 (§ 18.2-46.4 et seq.), Article 5 (§ 18.2-58 et seq.), Article 6 (§ 18.2-59 et seq.) or any felonies that are not Class 6 felonies in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or any conspiracy to commit any of the foregoing offenses. The Attorney General or Chief Deputy Attorney General may apply for authorization for the observation or monitoring of the interception by a police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States. Such application shall be made, and such order may be granted, in conformity with the provisions of § 19.2-68 .
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The application for an order under subsection B of §
19.2-68
shall be made as follows:
- In the case of an application for a wire or electronic interception, a judge of competent jurisdiction shall have the authority to issue an order under subsection B of § 19.2-68 if there is probable cause to believe that an offense was committed, is being committed, or will be committed or the person or persons whose communications are to be intercepted live, work, subscribe to a wire or electronic communication system, maintain an address or a post office box, or are making the communication within the territorial jurisdiction of the court.
- In the case of an application for an oral intercept, a judge of competent jurisdiction shall have the authority to issue an order under subsection B of § 19.2-68 if there is probable cause to believe that an offense was committed, is being committed, or will be committed or the physical location of the oral communication to be intercepted is within the territorial jurisdiction of the court.
- For the purposes of an order entered pursuant to subsection B of § 19.2-68 for the interception of a wire or electronic communication, such communication shall be deemed to be intercepted in the jurisdiction where the order is entered, regardless of the physical location or the method by which the communication is captured or routed to the monitoring location. (Code 1950, § 19.1-89.6; 1973, c. 442; 1975, c. 495; 1976, c. 271; 1979, c. 602; 1982, cc. 40, 274; 1988, cc. 855, 889; 2002, cc. 588, 623; 2004, c. 122; 2005, c. 934; 2011, cc. 403, 414; 2013, cc. 448, 664.)
Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted "any felony violation of Article 2.2 ( § 18.2-46.4 et seq.) of Chapter 4 of Title 18.2" near the end of the first sentence.
The 2004 amendments. - The 2004 amendment by c. 122, in the first sentence, inserted "Article 2 ( § 18.2-38 et seq.), Article 2.1 ( § 18.2-46.1 et seq.)" following "any felony violation of" and "Article 5 ( § 18.2-58 et seq.), Article 6 ( § 18.2-59 et seq.) or any felonies that are not Class 6 felonies in Article 7 ( § 18.2-61 et seq.)" preceding "of Chapter 4."
The 2005 amendments. - The 2005 amendment by c. 934 inserted the A designation at the beginning of the first paragraph and in subsection A, deleted "for the jurisdiction where the proposed intercept is to be made" following "judge of competent jurisdiction" in the first sentence and deleted the last sentence, which formerly read: "Application for installation of a mobile interception device may be made to and granted by any court of competent jurisdiction in the Commonwealth"; added subsection B; and made a minor stylistic change.
The 2011 amendments. - The 2011 amendments by cc. 403 and 414 are identical, and rewrote the first paragraph in subsection B, which read: "The application for an order under subsection B of § 19.2-68 for the interception of a wire, electronic or oral communication shall be made in the jurisdiction where there is probable cause to believe that an offense listed in subsection A of this section was committed, is being committed, or will be committed"; in subsections B 1 and B 2, inserted "there is probable cause to believe that an offense was committed, is being committed, or will be committed or"; and redesignated former subdivision B 3 as subsection C.
The 2013 amendments. - The 2013 amendments by cc. 448 and 664 are identical, and inserted "by a sheriff's office" in the next-to-last sentence in subsection A.
Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).
CASE NOTES
Void-for-vagueness doctrine inapplicable. - The portions of the "Virginia Wiretap Statute" which prescribe the procedure for obtaining and conducting a wiretap are not penal in nature, and thus, the void-for-vagueness doctrine is not applicable to them. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
This section must be read with § 19.2-68 . - This section, which delineates the parties who may initiate an application for a wiretap and the crimes for which a wiretap can be obtained, is subordinate to and must be read with § 19.2-68 . Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Section 19.2-68 qualifies this section. - Section 19.2-68 outlines the procedural requirements of a wiretap application and clearly qualifies this section. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Definition of "intercept" in § 19.2-68 B 5 applies to both this section and § 19.2-68 . For purposes of these sections, "intercept" means the physical act (such as splicing) by which the interceptor gains the ability to exercise dominion and control over the communication. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed Nationwide Mut. Ins. Co. v. Scott, 234 Va. 573 , 363 S.E.2d 703 (1988).
Interception occurred when telephone line broken and splicing occurred. - Interception of telephone conversations occurred in Franklin County when telephone line was broken and splicing occurred, even though the intercepted conversations could not have been transcribed but for the listening post in Henry County where they were monitored. Thus, intercept order entered by a judge in Franklin County was valid. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Applied in Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224 (1984).
§ 19.2-67. Disclosure of information obtained by authorized means.
- Any investigative or law-enforcement officer, or police officer of a county or city, who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law-enforcement officer, or police officer of a county or city, to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
- Any investigative or law-enforcement officer or police officer of a county or city, who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
- Any person who has received, by any means authorized by this chapter, any information concerning a wire, electronic or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding for an offense specified in § 19.2-66 , or any conspiracy or attempt to commit the same, in any court of the United States or of any state or in any federal or state grand jury proceeding.
- No wire, electronic or oral communication which is a privileged communication between the parties to the conversation which is intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character, nor shall it be disclosed or used in any way.
- When an investigative or law-enforcement officer, or police officer of a county or city, while engaged in intercepting wire, electronic or oral communications in the manner authorized herein, or observing or monitoring such interception intercepts, observes or monitors wire, electronic or oral communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, shall not be disclosed or used as provided in subsections A, B and C of this section, unless such communications or derivative evidence relates to a felony, in which case use or disclosure may be made as provided in subsections A, B and C of this section. Such use and disclosure pursuant to subsection C of this section shall be permitted only when approved by a judge of competent jurisdiction where such judge finds, on subsequent application, that such communications were otherwise intercepted in accordance with the provisions of this chapter. Violations of this subsection E shall be punishable as provided in § 19.2-62 . (Code 1950, § 19.1-89.7; 1973, c. 442; 1975, c. 495; 1976, c. 231; 1979, c. 602; 1983, c. 536; 1988, c. 889.)
§ 19.2-68. Application for and issuance of order authorizing interception; contents of order; recording and retention of intercepted communications, applications and orders; notice to parties; introduction in evidence of information obtained.
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Each application for an order authorizing the interception of a wire, electronic or oral communication shall be made in writing upon oath or affirmation to the appropriate judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall be verified by the Attorney General to the best of his knowledge and belief and shall include the following information:
- The identity of the attorney for the Commonwealth and law-enforcement officer who requested the Attorney General to apply for such order;
- A full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being or is about to be committed, (ii) except as provided in subsection I, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
- A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
- A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
- A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application;
- Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results; and
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If authorization is requested for observation or monitoring by a police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States, a statement containing the name of the police department, sheriff's office, or United States agency and an explanation of the reasons such observation or monitoring is necessary.
The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.
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Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, electronic or oral communications if the judge determines on the basis of the facts submitted by the applicant that:
- There is probable cause for belief that an individual is committing, has committed or is about to commit an offense enumerated in § 19.2-66 of this chapter;
- There is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
- Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous; and interception under this chapter is the only alternative investigative procedure available;
- Except as provided in subsection I, there is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person;
- A wire, electronic or oral communication authorized to be intercepted pursuant to this section may be monitored at any location within the Commonwealth of Virginia.
-
Each order authorizing the interception of any wire, electronic or oral communication shall specify:
- The identity of the person, if known, whose communications are to be intercepted;
- The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
- A particular description of the type of communication sought to be intercepted, and a statement of the particular offense enumerated in § 19.2-66 to which it relates;
- That such interception is to be conducted only by the Department of State Police;
- If observation or monitoring by the police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States is authorized, only that police department, sheriff's office, or agency or the officers from any police department of a town which originated the investigation leading to the application shall observe or monitor the interception; and
- The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. An order authorizing the interception of a wire, electronic or oral communication shall, upon request of the applicant, direct that a provider of wire or electronic communications service, landlord, custodian or other person shall furnish the Department of State Police forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian or person is providing the person whose communications are to be intercepted. Any provider of wire or electronic communications service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the Commonwealth for reasonable and actual expenses incurred in providing such facilities or assistance, to be paid out of the criminal fund.
- No order entered under this section may authorize the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days which period begins to run on the earlier of the day on which the investigative or law-enforcement officer begins to conduct an interception under the order or 10 days after the date of entry of the order. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection A of this section and the court's making the findings required by subsection B of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.
- Whenever an order authorizing interception is entered pursuant to this chapter, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge shall require.
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- The contents of any wire, electronic or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. Should it not be possible to record the intercepted communication, a detailed resume of such communication shall forthwith be reduced to writing and filed with the court. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations and shall not be duplicated except upon order of the court as hereafter provided. Immediately upon the expiration of the period of the order, or extensions thereof, such recording or detailed resume shall be made available to the judge issuing such order and sealed under his directions. Custody of any recordings or detailed resumes shall be vested with the court and shall not be destroyed for a period of 10 years from the date of the order and then only by direction of the court; provided, however, should any interception fail to reveal any information related to the offense or offenses for which it was authorized, such recording or resume shall be destroyed after the expiration of 60 days after the notice required by subdivision 4 of this subsection is served. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections A and B of § 19.2-67 for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under subsection C of § 19.2-67 . F. 1. The contents of any wire, electronic or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. Should it not be possible to record the intercepted communication, a detailed resume of such communication shall forthwith be reduced to writing and filed with the court. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations and shall not be duplicated except upon order of the court as hereafter provided. Immediately upon the expiration of the period of the order, or extensions thereof, such recording or detailed resume shall be made available to the judge issuing such order and sealed under his directions. Custody of any recordings or detailed resumes shall be vested with the court and shall not be destroyed for a period of 10 years from the date of the order and then only by direction of the court; provided, however, should any interception fail to reveal any information related to the offense or offenses for which it was authorized, such recording or resume shall be destroyed after the expiration of 60 days after the notice required by subdivision 4 of this subsection is served. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections A and B of § 19.2-67 for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under subsection C of § 19.2-67.
- Applications made and orders granted or denied under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.
- Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying court.
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Within a reasonable time but not later than 90 days after the filing of an application for an order of authorization which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of:
- The fact of the entry of the order or the application;
- The date of the entry and the period of authorized interception, or the denial of the application;
- The fact that during the period wire, electronic or oral communications were or were not intercepted; and
- The fact that unless he files a motion with the court within 60 days after the service of notice upon him, the recordation or resume may be destroyed in accordance with subdivision 1 of this subsection. The judge, upon the filing of a motion, shall make available to such person or his counsel for inspection the intercepted communications, applications and orders. The serving of the inventory required by this subsection may be postponed for additional periods, not to exceed 30 days each, upon the ex parte showing of good cause to a judge of competent jurisdiction.
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The contents of any intercepted wire, electronic or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in a state court unless each party to the communication and to such proceeding, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the court order, accompanying application under which the interception was authorized and the contents of any intercepted wire, electronic or oral communication that is to be used in any trial, hearing or other proceeding in a state court. This 10-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving such information; provided that such information in any event shall be given prior to the day of the trial, and the inability to comply with such 10-day period shall be grounds for the granting of a continuance to either party.
The judge who considers an application for an interception under this chapter, whether issuing or denying the order, shall be disqualified from presiding at any trial resulting from or in any manner connected with such interception, regardless of whether the evidence acquired thereby is used in such trial.
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Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the Commonwealth, or a political subdivision thereof, may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:
- The communication was unlawfully intercepted, or was not intercepted in compliance with this chapter; or
- The order of the authorization or approval under which it was intercepted is insufficient on its face; or
- The interception was not made in conformity with the order of authorization or approval; or
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The interception is not admissible into evidence in any trial, proceeding or hearing in a state court under the applicable rules of evidence.
Such motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted pursuant to subdivision 1, 2 or 3 of this subsection, the contents of the intercepted wire, electronic or oral communication or evidence derived therefrom shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, shall make available to the aggrieved person, or his counsel, for inspection the intercepted communication.
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The requirements of subdivision 2 of subsection A and subdivision 4 of subsection B of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if:
-
In the case of an application with respect to the interception of an oral communication:
- The application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and
- The judge finds that such specification is not practical; or
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In the case of an application with respect to a wire or electronic communication:
(a) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and
(b) the judge finds that such purpose has been adequately shown.
The interception of a communication under an order issued pursuant to this subsection shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order issued pursuant to this subdivision 2 may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the Attorney General, shall decide the motion expeditiously.
(Code 1950, § 19.1-89.8; 1973, c. 442; 1975, c. 495; 1976, c. 163; 1977, c. 335; 1979, c. 602; 1980, c. 244; 1988, c. 889; 2002, c. 91; 2005, c. 934; 2013, cc. 448, 664.)
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In the case of an application with respect to the interception of an oral communication:
The 2002 amendments. - The 2002 amendment by c. 91 inserted "or the officers from any police department of a town which originated the investigation leading to the application" in subdivision C 5.
The 2005 amendments. - The 2005 amendment by c. 934, in subsection B, deleted "within the territorial jurisdiction of the court in which the judge is sitting, and outside that jurisdiction but within the Commonwealth in the case of a mobile interception device authorized by a court of competent jurisdiction within such jurisdiction" in the introductory paragraph and rewrote subdivision B 5; and made minor stylistic changes.
The 2013 amendments. - The 2013 amendments by cc. 448 and 664 are nearly identical, and inserted "by a sheriff's office" and "sheriff's office" in subdivisions A 7 and C 5.
Research References. - Virginia Forms (Matthew Bender). No. 9-1613. Motion for Disclosure of the Contents of Intercepted Wire and Oral Communications; No. 9-1614. Motion for Disclosure of Electronic Surveillance.
CASE NOTES
Void-for-vagueness doctrine inapplicable. - The portions of the "Virginia Wiretap Statute" which prescribe the procedure for obtaining and conducting a wiretap are not penal in nature, and thus, the void-for-vagueness doctrine is not applicable to them. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Section 19.2-66 must be read with this section. - Section 19.2-66 , which delineates the parties who may initiate an application for a wiretap and the crimes for which a wiretap can be obtained, is subordinate to and must be read with this section. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
This section qualifies § 19.2-66 . - This section outlines the procedural requirements of a wiretap application and clearly qualifies § 19.2-66 . Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Definitions of "intercept" in this section and § 19.2-61 compared. - Prior to the 1980 amendment of this section, adding subdivision B 5, "intercept" was defined in § 19.2-61 and meant an "aural acquisition." Under that definition, a wiretap order could only be entered by a judge sitting in the jurisdiction where the conversation would be heard. Thus, a wiretap order could be entered, for example, in Richmond, where the listening post would be located, while the actual conversation might occur in Franklin County. This would deprive the local authorities of knowledge of the investigation involving their jurisdiction. To avoid this result, the General Assembly enacted subdivision B 5 of this section, defining "intercept" as the physical act of acquiring the means to intercept the conversation. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Definition of "intercept" in subdivision B 5 of this section applies to both § 19.2-66 and this section. For purposes of these sections, "intercept" means the physical act (such as splicing) by which the interceptor gains the ability to exercise dominion and control over the communication. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Legislature intended in subdivision B 5 to distinguish between "intercept" and "monitor." Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
Interception occurred when telephone line was broken and splicing occurred. - Interception of telephone conversations occurred in Franklin County when telephone line was broken and splicing occurred, even though the intercepted conversations could not have been transcribed but for the listening post in Henry County where they were monitored. Thus, intercept order entered by a judge in Franklin County was valid. Smith v. Commonwealth, 3 Va. App. 650, 353 S.E.2d 159 (1987), appeal dismissed, 234 Va. 573 , 363 S.E.2d 703 (1988).
§ 19.2-69. Civil action for unlawful interception, disclosure, or use.
Any person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of this chapter shall (i) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, such communications and (ii) be entitled to recover from any such person:
- Actual damages but not less than liquidated damages computed at the rate of $400 a day for each day of violation or $4,000, whichever is higher, provided that liquidated damages shall be computed at the rate of $800 a day for each day of violation or $8,000, whichever is higher, if the wire, electronic, or oral communication intercepted, disclosed, or used is between (i) persons married to each other; (ii) an attorney and client; (iii) a licensed practitioner of the healing arts and patient; (iv) a licensed professional counselor, licensed clinical social worker, licensed psychologist, or licensed marriage and family therapist and client; or (v) a clergy member and person seeking spiritual counsel or advice;
- Punitive damages; and
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A reasonable attorney fee and other litigation costs reasonably incurred.
A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.
(Code 1950, § 19.1-89.9; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2010, c. 343; 2015, c. 672; 2020, c. 900.)
The 2010 amendments. - The 2010 amendment by c. 343 substituted "$400" for "$100" and "$4,000" for "$1,000."
The 2015 amendments. - The 2015 amendment by c. 672 added the proviso at the end of subdivision 1.
The 2020 amendments. - The 2020 amendment by c. 900, in subdivision 1, substituted "persons married to each other" for "a husband and wife" in clause (i); and in subdivision 3, substituted "attorney" for "attorney's."
§ 19.2-70. Reports to be filed by courts and Attorney General.
All courts of the Commonwealth and the Attorney General shall file all reports required by 18 U.S.C.A. § 2519. The Attorney General shall file a written report with the Clerks of the Senate and House of Delegates on or before December 31 of each year setting forth the number of applications made pursuant to this chapter, the number of interceptions authorized, the number of arrests resulting from each application, the number of convictions including a breakdown by offense, the cost of each application granted and the number of requests denied. Such information shall be made available by such Clerks to any member of the General Assembly upon request. However, notwithstanding the above requirements, no report shall be made concerning a granted application until after all inventories associated with such application are served pursuant to subdivision F 4 of § 19.2-68 .
(Code 1950, § 19.1-89.10; 1973, c. 442; 1975, c. 495; 2011, cc. 403, 414.)
The 2011 amendments. - The 2011 amendments by cc. 403 and 414 are identical, and added the last sentence.
Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).
§ 19.2-70.1. General prohibition on pen register and trap and trace device use; exceptions.
Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under § 19.2-70.2 .
However, a court order shall not be required for use of a pen register or trap and trace device by a provider of electronic or wire communication service (i) relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service; (ii) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or (iii) where the consent of the user of that service has been obtained.
Any person who knowingly violates this section shall be guilty of a Class 1 misdemeanor.
(1988, c. 889.)
Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .
§ 19.2-70.2. Application for and issuance of order for a pen register or trap and trace device; assistance in installation and use.
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An investigative or law-enforcement officer may make application for an order or an extension of an order authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a court of competent jurisdiction. The application shall include:
- The identity of the officer making the application and the identity of the law-enforcement agency conducting the investigation; and
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A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.
The application may include a request that the order require information, facilities and technical assistance necessary to accomplish the installation be furnished.
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An application for an ex parte order authorizing the installation and use of a pen register or trap and trace device may be filed in the jurisdiction where the ongoing criminal investigation is being conducted; where there is probable cause to believe that an offense was committed, is being committed, or will be committed; or where the person or persons who subscribe to the wire or electronic communication system live, work, or maintain an address or a post office box. For the purposes of an order entered pursuant to this section for the installation and use of a pen register or trap and trace device, such installation shall be deemed to occur in the jurisdiction where the order is entered, regardless of the physical location or the method by which the information is captured or routed to the law-enforcement officer that made the application. Upon application, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if the court finds that the investigative or law-enforcement officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.
The order shall specify:
- The identity, if known, of the person in whose name the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied is listed or to whom the line or other facility is leased;
- The identity, if known, of the person who is the subject of the criminal investigation;
- The attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied; and
- A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
- Installation and use of a pen register or a trap and trace device shall be authorized for a period not to exceed 60 days. Extensions of the order may be granted, but only upon application made and order issued in accordance with this section. The period of an extension shall not exceed 60 days.
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An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
- The order and application be sealed until otherwise ordered by the court;
- Information, facilities and technical assistance necessary to accomplish the installation be furnished if requested in the application; and
- The person owning or leasing the line or other facility to which the pen register or trap and trace device is attached or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
- Upon request of an investigative or a law-enforcement officer authorized by the court to install and use a pen register, a provider of wire or electronic communication service, a landlord, custodian or any other person so ordered by the court shall, as soon as practicable, furnish the officer with all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place.
- Upon request of an investigative or law-enforcement officer authorized by the court to receive the results of a trap and trace device under this section, a provider of wire or electronic communication service, a landlord, custodian or any other person so ordered by the court shall, as soon as practicable, install the device on the appropriate line and furnish the officer with all additional information, facilities and technical assistance, including installation and operation of the device, unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the investigative or law-enforcement officer designated by the court at reasonable intervals during regular business hours for the duration of the order. Where the law-enforcement agency implementing an ex parte order under this subsection seeks to do so by installing and using its own pen register or trap and trace device on a packet-switched data network of a provider of electronic communication service to the public, the agency shall ensure that a record will be maintained that will identify (i) any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network; (ii) the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information; (iii) the configuration of the device at the time of its installation and any subsequent modification thereof; and (iv) any information that has been collected by the device. To the extent that the pen register or trap and trace device can be set automatically to record this information electronically, the record shall be maintained electronically throughout the installation and use of such device. The record maintained hereunder shall be provided ex parte and under seal of the court that entered the ex parte order authorizing the installation and use of the device within 30 days after termination of the order, including any extensions thereof.
- A provider of a wire or electronic communication service, a landlord, custodian or other person who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for reasonable and actual expenses incurred in providing such facilities and assistance. The expenses shall be paid out of the criminal fund.
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When disclosure of real-time location data is not prohibited by federal law, an investigative or law-enforcement officer may obtain a pen register or trap and trace device installation without a court order, in addition to any real-time location data obtained pursuant to subsection E of §
19.2-70.3
, in the following circumstances:
- To respond to a user's call for emergency services;
- With the informed, affirmative consent of the owner or user of the electronic device concerned if (i) the device is in his possession, (ii) the owner or user knows or believes that the device is in the possession of an employee or agent of the owner or user with the owner's or user's consent, or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user;
- With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably believed to be deceased, is reported missing, or is unable to be contacted;
- To locate a child who is reasonably believed to have been abducted or to be missing and endangered; or
- If the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of pen register and trap and trace data, or real-time location data pursuant to subsection E of § 19.2-70.3 , concerning a specific person and that a court order cannot be obtained in time to prevent the identified danger. No later than three business days after seeking the installation of a pen register or trap and trace device pursuant to this subsection, the investigative or law-enforcement officer seeking the installation shall file with the appropriate court a written statement setting forth the facts giving rise to the emergency and the reasons why the installation of the pen register or trap and trace device was believed to be important in addressing the emergency.
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No cause of action shall lie in any court against a provider of a wire or electronic communication service, its officers, employees, agents or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order issued pursuant to this section. Good faith reliance on a court order, a legislative authorization or a statutory authorization is a complete defense against any civil or criminal action based upon a violation of this chapter.
(1988, c. 889; 2002, cc. 588, 623; 2005, c. 934; 2016, c. 231; 2018, c. 667.)
Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and in subdivision B 1, inserted "or other facility" twice and inserted "or applied"; rewrote subdivision B 3, which formerly read: "The number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order"; in subdivision D 3, inserted "or other facility" and substituted "or applied, or who is obligated by the order" for "or who has been ordered by the court"; and added the last three sentences in subsection F.
The 2005 amendments. - The 2005 amendment by c. 934, in the first paragraph of subsection B, added the first and second sentences and deleted "within the jurisdiction of the court" following "trap and trace device" in the last sentence; and made minor stylistic changes.
The 2016 amendments. - The 2016 amendment by c. 231 inserted "where the ongoing criminal investigation is being conducted; where there is probable cause to believe that an offense was committed, is being committed, or will be committed; or" in subsection B.
The 2018 amendments. - The 2018 amendment by c. 667 inserted subsection H and made related changes.
§ 19.2-70.3. Obtaining records concerning electronic communication service or remote computing service.
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A provider of electronic communication service or remote computing service, which, for purposes of subdivisions 2, 3, and 4, includes a foreign corporation that provides such services, shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications and real-time location data, to an investigative or law-enforcement officer only pursuant to:
- A subpoena issued by a grand jury of a court of the Commonwealth;
- A search warrant issued by a magistrate, general district court, or circuit court;
- A court order issued by a circuit court for such disclosure issued as provided in subsection B; or
- The consent of the subscriber or customer to such disclosure.
- A court shall issue an order for disclosure under this section only if the investigative or law-enforcement officer shows that there is reason to believe the records or other information sought are relevant and material to an ongoing criminal investigation, or the investigation of any missing child as defined in § 52-32 , missing senior adult as defined in § 52-34.4 , or an incapacitated person as defined in § 64.2-2000 who meets the definition of a missing senior adult except for the age requirement. Upon issuance of an order for disclosure under this section, the order and any written application or statement of facts may be sealed by the court for 90 days for good cause shown upon application of the attorney for the Commonwealth in an ex parte proceeding. The order and any written application or statement of facts may be sealed for additional 90-day periods for good cause shown upon subsequent application of the attorney for the Commonwealth in an ex parte proceeding. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify the order, if the information or records requested are unusually voluminous in nature or compliance with such order would otherwise cause an undue burden on such provider.
- Except as provided in subsection D or E, a provider of electronic communication service or remote computing service, including a foreign corporation that provides such services, shall disclose the contents of electronic communications or real-time location data to an investigative or law-enforcement officer only pursuant to a search warrant issued by a magistrate, a juvenile and domestic relations district court, a general district court, or a circuit court, based upon complaint on oath supported by an affidavit as required in § 19.2-54 , or judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection G. In the case of a search warrant directed to a foreign corporation, the affidavit shall state that the complainant believes that the records requested are actually or constructively possessed by a foreign corporation that provides electronic communication service or remote computing service within the Commonwealth of Virginia. If satisfied that probable cause has been established for such belief and as required by Chapter 5 (§ 19.2-52 et seq.), the magistrate, the juvenile and domestic relations district court, the general district court, or the circuit court shall issue a warrant identifying those records to be searched for and commanding the person seeking such warrant to properly serve the warrant upon the foreign corporation. A search warrant for real-time location data shall be issued if the magistrate, the juvenile and domestic relations district court, the general district court, or the circuit court is satisfied that probable cause has been established that the real-time location data sought is relevant to a crime that is being committed or has been committed or that an arrest warrant exists for the person whose real-time location data is sought.
- A provider of electronic communication service or remote computing service, including a foreign corporation that provides such services, shall disclose a record or other information pertaining to a subscriber to or customer of such service, including real-time location data but excluding the contents of electronic communications, to an investigative or law-enforcement officer pursuant to an administrative subpoena issued pursuant to § 19.2-10.2 concerning a violation of § 18.2-374.1 or 18.2-374.1:1 , former § 18.2-374.1:2 , or § 18.2-374.3 when the information sought is relevant and material to an ongoing criminal investigation.
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When disclosure of real-time location data is not prohibited by federal law, an investigative or law-enforcement officer may obtain real-time location data without a warrant in the following circumstances:
- To respond to the user's call for emergency services;
- With the informed, affirmative consent of the owner or user of the electronic device concerned if (i) the device is in his possession; (ii) the owner or user knows or believes that the device is in the possession of an employee or agent of the owner or user with the owner's or user's consent; or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user;
- With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably believed to be deceased, is reported missing, or is unable to be contacted;
- To locate a child who is reasonably believed to have been abducted or to be missing and endangered; or
-
If the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of real-time location data concerning a specific person and that a warrant cannot be obtained in time to prevent the identified danger.
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.
- In order to comply with the requirements of § 19.2-54 , any search of the records of a foreign corporation shall be deemed to have been made in the same place wherein the search warrant was issued.
- A Virginia corporation or other entity that provides electronic communication services or remote computing services to the general public, when properly served with a search warrant and affidavit in support of the warrant, issued by a judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia with jurisdiction over the matter, to produce a record or other information pertaining to a subscriber to or customer of such service, including real-time location data, or the contents of electronic communications, or both, shall produce the record or other information, including real-time location data, or the contents of electronic communications as if that warrant had been issued by a Virginia court. The provisions of this subsection shall only apply to a record or other information, including real-time location data, or contents of electronic communications relating to the commission of a criminal offense that is substantially similar to (i) a violent felony as defined in § 17.1-805 , (ii) an act of violence as defined in § 19.2-297.1 , (iii) any offense for which registration is required pursuant to § 9.1-902 , (iv) computer fraud pursuant to § 18.2-152.3 , or (v) identity theft pursuant to § 18.2-186.3 . The search warrant shall be enforced and executed in the Commonwealth as if it were a search warrant described in subsection C.
- The provider of electronic communication service or remote computing service may verify the authenticity of the written reports or records that it discloses pursuant to this section by providing an affidavit from the custodian of those written reports or records or from a person to whom said custodian reports certifying that they are true and complete copies of reports or records and that they are prepared in the regular course of business. When so authenticated, no other evidence of authenticity shall be necessary. The written reports and records, excluding the contents of electronic communications, shall be considered business records for purposes of the business records exception to the hearsay rule.
- No cause of action shall lie in any court against a provider of a wire or electronic communication service or remote computing service or such provider's officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, administrative subpoena, or subpoena under this section or the provisions of subsection E.
- A search warrant or administrative subpoena for the disclosure of real-time location data pursuant to this section shall require the provider to provide ongoing disclosure of such data for a reasonable period of time, not to exceed 30 days. A court may, for good cause shown, grant one or more extensions, not to exceed 30 days each.
- An investigative or law-enforcement officer shall not use any device to obtain electronic communications or collect real-time location data from an electronic device without first obtaining a search warrant authorizing the use of the device if, in order to obtain the contents of such electronic communications or such real-time location data from the provider of electronic communication service or remote computing service, such officer would be required to obtain a search warrant pursuant to this section. However, an investigative or law-enforcement officer may use such a device without first obtaining a search warrant under the circumstances set forth in subsection E. For purposes of subdivision E 5, the investigative or law-enforcement officer using such a device shall be considered to be the possessor of the real-time location data.
- Upon issuance of any subpoena, search warrant, or order for disclosure issued under this section, upon written certification by the attorney for the Commonwealth that there is a reason to believe that the victim is under the age of 18 and that notification or disclosure of the existence of the subpoena, search warrant, or order will endanger the life or physical safety of an individual, or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation, the court may in an ex parte proceeding order a provider of electronic communication service or remote computing service not to disclose for a period of 90 days the existence of the subpoena, search warrant, or order and written application or statement of facts to another person, other than an attorney to obtain legal advice. The nondisclosure order may be renewed for additional 90-day periods for good cause shown upon subsequent application of the attorney for the Commonwealth in an ex parte proceeding. A court issuing an order for disclosure pursuant to this section, on a motion made promptly by the service provider, may quash or modify the order if the information or records requested are unusually voluminous in nature or compliance with such order would otherwise cause an undue burden on such provider.
- For the purposes of this section: "Electronic device" means a device that enables access to, or use of, an electronic communication service, remote computing service, or location information service, including a global positioning service or other mapping, locational, or directional information service. "Foreign corporation" means any corporation or other entity, whose primary place of business is located outside of the boundaries of the Commonwealth, that makes a contract or engages in a terms of service agreement with a resident of the Commonwealth to be performed in whole or in part by either party in the Commonwealth, or a corporation that has been issued a certificate of authority pursuant to § 13.1-759 to transact business in the Commonwealth. The making of the contract or terms of service agreement or the issuance of a certificate of authority shall be considered to be the agreement of the foreign corporation or entity that a search warrant or subpoena, which has been properly served on it, has the same legal force and effect as if served personally within the Commonwealth. "Properly served" means delivery of a search warrant or subpoena by hand, by United States mail, by commercial delivery service, by facsimile or by any other manner to any officer of a corporation or its general manager in the Commonwealth, to any natural person designated by it as agent for the service of process, or if such corporation has designated a corporate agent, to any person named in the latest annual report filed pursuant to § 13.1-775 . "Real-time location data" means any data or information concerning the current location of an electronic device that, in whole or in part, is generated, derived from, or obtained by the operation of the device. (1988, c. 889; 2009, c. 378; 2010, cc. 319, 473, 582, 720, 721; 2011, c. 392; 2014, c. 388; 2015, cc. 43, 634; 2016, cc. 549, 576, 616; 2018, c. 667.)
Editor's note. - At the direction of the Virginia Code Commission, the reference to "37.2-1000" was changed to "64.2-2000" to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.
The 2009 amendments. - The 2009 amendment by c. 378 substituted "relevant and material to an ongoing criminal investigation" for "relevant to a legitimate law enforcement inquiry" in the first sentence in subsection B; and added subsections C, D, and F; and redesignated former subsection C as subsection E.
The 2010 amendments. - The 2010 amendment by c. 319 inserted "for judicial officer or court of another any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection E" at the end of the first sentence of subsection C; added subsection E; and redesignated former subsections C through F as subsections D through G.
The 2010 amendment by c. 473 are nearly the same as c. 319 amendments, but, inserted "or judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection E" in the first sentence of subsection C; inserted subsection E; and redesignated former subsections E and F as subsections F and G.
Subsection C is set out in the form above at the direction of the Virginia Code Commission.
The 2010 amendment by c. 582 added the language beginning "or the investigation of any missing child" at the end of the first sentence in subsection B.
The 2010 amendment by c. 720 inserted "which, for purposes of subdivisions A 2 through A 4, includes a foreign corporation that provides such services" in the introductory language of subsection A.
The 2010 amendment by c. 721 deleted "The foreign corporation may verify the authenticity of records that it produces by providing an affidavit from the person in custody of those records certifying that they are true and complete." at the end of subsection C; inserted subsection F and redesignated former subsections E and F as subsections G and H.
The 2011 amendments. - The 2011 amendment by c. 392 added the second and third sentences in subsection B.
The 2014 amendments. - The 2014 amendment by c. 388 in subsection A deleted "A" twice preceding "2" and "4," and inserted "and real-time location data"; in subdivision A 3 substituted "subsection B" for "this section"; in subsection C substituted "Except as provided in subsection D, a" for "A" and inserted "or real-time location data"; added subsections D, E, and J and redesignated the remaining subsections accordingly, and made related changes; in subsection G inserted "including real-time location data" throughout the subsection; in subsection I substituted "or remote computing service or such provider's" for "its" and inserted "administrative subpoena" and "or the provisions of subsection E"; and in subsection K added the definitions of "Electronic device" and "Real-time location data."'
The 2015 amendments. - The 2015 amendment by c. 43 added subsection K and redesignated former subsection K as subsection L.
The 2015 amendment by c. 634 added the fourth sentence in subsection C.
The 2016 amendments. - The 2016 amendment by c. 549, in subsection C, substituted "subsections" for "subsection" and inserted "and E"; and in subsection H, deleted "excluding the contents of electronic communications" following "pursuant to this section," inserted "copies of reports or records" and substituted "no other evidence of authenticity shall be necessary. The" for "the," and "excluding the contents of electronic communications, shall be considered business records for purposes of the" for "are admissible in evidence as a." Subsection C is set out in the form above at the direction of the Virginia Code Commission.
The 2016 amendment by c. 576, substituted "Subsection D or E" for "Subsection D" near the beginning of subsection C; and deleted "and the possessor of the real-time location data believes, in good faith, that an emergency involving danger to a person requires disclosure without delay" at the end of subdivision E 4.
The 2016 amendment by c. 616, inserted "issued by a circuit court" in subdivision A 3; added subsection L and redesignated former subsection L as subsection M.
The 2018 amendments. - The 2018 amendment by c. 667 inserted subdivision E 4 and made related changes.
CASE NOTES
Applicability. - Defendant's motion to suppress was properly denied because, in part, even if a detective violated 18 U.S.C.S. § 2703 and § 19.2-70.3 , those statutes did not provide suppression of the evidence in federal court as a remedy. United States v. Clenney, 631 F.3d 658, 2011 U.S. App. LEXIS 2117 (4th Cir. 2011).
Cell phone records were admissible under the business records exception, as a witness testified that they were prepared in the ordinary course of business for all customers with text messaging services and that she was the custodian of those records. Chewning v. Commonwealth, No. 2204-12-4, 2014 Va. App. LEXIS 82 (Mar. 11, 2014).
Obtaining cell-site data. - Since a circuit court judge found probable cause to issue the orders for the cell-site data, both of the subject orders met and exceeded the statutory standard and did not violate defendant's Fourth Amendment rights. Reynolds v. Commonwealth,, 2014 Va. App. LEXIS 213 (May 27, 2014).
Upon remand from the Supreme Court of the United States, the Court of Appeals of Virginia determined that while Virginia's statute contained the exact language as 18 U.S.C.S. § 2703(d) and the Supreme Court of the United States determined that § 2703(d) fell short of the probable cause required for a warrant, the exclusionary rule did not apply because there was no police or governmental conduct that needed to be deterred at the time it occurred where defendant did not contend that the statutes were invalid at the time the Commonwealth obtained his cell site location information in 2012 and 2015 and both the detectives and the Commonwealth's attorney had a reasonable, good faith belief that their actions were constitutional at the time. Reed v. Commonwealth, 69 Va. App. 332, 819 S.E.2d 446, 2018 Va. App. LEXIS 275 (2018).
Cell phone records. - Requested cell phone records were relevant and material to the criminal case against defendant because the records concerned a window of time during which defendant was allegedly involved in a drug buy with a known drug dealer and during which time defendant was alleged to have called the drug dealer. Moreover, the records corroborated a police detective's identification of defendant by placing defendant in the general area of the drug buy and connected defendant to the drug dealer through phone calls at the time relevant to the drug buy. Reed v. Commonwealth, No. 1305-15-4, 2016 Va. App. LEXIS 233 (Ct. of Appeals Aug. 30, 2016).
Chapter 7. Arrest.
Sec.
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.05 District Courts. Friend.
Virginia Forms (Matthew Bender). No. 9-401. Criminal Complaint, et seq.
§ 19.2-71. Who may issue process of arrest.
- Process for the arrest of a person charged with a criminal offense may be issued by the judge, or clerk of any circuit court, any general district court, any juvenile and domestic relations district court, or any magistrate as provided for in Chapter 3 (§ 19.2-26 et seq.). However, no magistrate may issue an arrest warrant for a felony offense upon the basis of a complaint by a person other than a law-enforcement officer or an animal control officer without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency having jurisdiction over the alleged offense.
- No law-enforcement officer shall seek issuance of process by any judicial officer, for the arrest of a person for an offense of aggravated murder as defined in § 18.2-31 , without prior authorization by the attorney for the Commonwealth. Failure to comply with the provisions of this subsection shall not be (i) a basis upon which a warrant may be quashed or deemed invalid, (ii) deemed error upon which a conviction or sentence may be reversed or vacated, or (iii) a basis upon which a court may prevent or delay execution of sentence. (Code 1950, § 19.1-90; 1960, c. 366; 1975, c. 495; 1999, c. 266; 2002, c. 310; 2009, cc. 291, 344; 2010, c. 240; 2011, cc. 205, 223; 2021, Sp. Sess. I, cc. 344, 345.)
Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 1999 amendment added the subsection A designator and added subsection B.
The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.)" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.)" in subsection A.
The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are nearly identical, and added the last sentence of subsection A. In addition, c. 291 added "having jurisdiction over the alleged offense" at the end of subsection A. The section is set out in the form above at the direction of the Virginia Code Commission.
The 2010 amendments. - The 2010 amendment by c. 240 inserted "or an animal control officer" following "law-enforcement officer" in the second sentence of subsection A.
The 2011 amendments. - The 2011 amendments by cc. 205 and 223 are identical, and substituted "without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency" for "without prior consultation by the magistrate with the attorney for the Commonwealth or, if no attorney for the Commonwealth is available, without prior consultation with a law-enforcement agency" in subsection A.
The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "of this title" from the end of the first sentence in subsection A; and substituted "an offense of aggravated murder" for "the offense of capital murder" in the first sentence of subsection B.
Law review. - For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 19; 11B M.J. Justices and Magistrates, §§ 33, 37.
Applied in Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977); Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004).
OPINIONS OF THE ATTORNEY GENERAL
Show cause summons. - Service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390 . See opinion of Attorney General to The Honorable Dennis S. Proffitt, Chesterfield County Sheriff, 09-070, 2009 Va. AG LEXIS 48 (10/26/09).
Prosecutorial discretion. - While a prosecutor is permitted to move to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department, any such an amendment is subject to judicial review and may be made only by an appropriate judicial officer. See opinion of Attorney General to The Honorable Richard K. Newman, Commonwealth Attorney for the City of Hopewell, 11-080, 2012 Va. AG LEXIS 8 (2/17/12).
§ 19.2-72. When it may issue; what to recite and require.
On complaint of a criminal offense to any officer authorized to issue criminal warrants he shall examine on oath the complainant and any other witnesses, or when such officer shall suspect that an offense punishable otherwise than by a fine has been committed he may, without formal complaint, issue a summons for witnesses and shall examine such witnesses. A written complaint shall be required if the complainant is not a law-enforcement officer; however, if no arrest warrant is issued in response to a written complaint made by such complainant, the written complaint shall be returned to the complainant. If upon such examination such officer finds that there is probable cause to believe the accused has committed an offense, such officer shall issue a warrant for his arrest, except that no magistrate may issue an arrest warrant for a felony offense upon the basis of a complaint by a person other than a law-enforcement officer or an animal control officer without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency having jurisdiction over the alleged offense. The warrant shall (i) be directed to an appropriate officer or officers, (ii) name the accused or, if his name is unknown, set forth a description by which he can be identified with reasonable certainty, (iii) describe the offense charged with reasonable certainty, (iv) command that the accused be arrested and brought before a court of appropriate jurisdiction in the county, city or town in which the offense was allegedly committed, and (v) be signed by the issuing officer. If a warrant is issued for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, the warrant shall reference the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code. The warrant shall require the officer to whom it is directed to summon such witnesses as shall be therein named to appear and give evidence on the examination. But in a city or town having a police force, the warrant shall be directed "To any policeman, sheriff or his deputy sheriff of such city (or town)," and shall be executed by the policeman, sheriff or his deputy sheriff into whose hands it shall come or be delivered. A sheriff or his deputy may execute an arrest warrant throughout the county in which he serves and in any city or town surrounded thereby and effect an arrest in any city or town surrounded thereby as a result of a criminal act committed during the execution of such warrant. A jail officer as defined in § 53.1-1 employed at a regional jail or jail farm is authorized to execute a warrant of arrest upon an accused in his jail. The venue for the prosecution of such criminal act shall be the jurisdiction in which the offense occurred.
(Code 1950, § 19.1-91; 1960, c. 366; 1975, c. 495; 1991, c. 420; 2000, c. 170; 2007, c. 412; 2009, cc. 291, 344; 2010, c. 240; 2011, cc. 205, 223; 2013, c. 207; 2016, c. 204; 2021, Sp. Sess. I, cc. 524, 542.)
Cross references. - As to issuance of summons instead of warrant in certain cases, see § 19.2-73 .
For constitutional provision as to general warrants, see Va. Const., Art. I, § 10.
Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
The 2000 amendments. - The 2000 amendment by c. 170 added the last sentence.
The 2007 amendments. - The 2007 amendment by c. 412, in the next-to-last sentence, inserted "or town" following "and in any city" and "and effect an arrest in any city or town surrounded thereby as a result of a criminal act committed during the execution of such warrant" at the end; and added the last sentence.
The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are nearly identical, and added the second sentence; and in the third sentence, added the exception at the end. In addition, c. 291 inserted "having jurisdiction over the alleged offense" at the end of the third sentence. The sentence has been set out in the form above at the direction of the Virginia Code Commission.
The 2010 amendments. - The 2010 amendment by c. 240 inserted "or an animal control officer" following "a law-enforcement officer" in the third sentence of the paragraph.
The 2011 amendments. - The 2011 amendments by cc. 205 and 223 are identical, and in the second sentence, deleted "whenever practicable" following "complaint shall be required," and in the third sentence, substituted "without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency" for "without prior consultation by the magistrate with the attorney for the Commonwealth or, if no attorney for the Commonwealth is available, without prior consultation with a law-enforcement agency."
The 2013 amendments. - The 2013 amendment by c. 207 inserted the next-to-last sentence.
The 2016 amendments. - The 2016 amendment by c. 204 inserted "however, if no arrest warrant is issued in response to a written complaint made by such complainant, the written complaint shall be returned to the complainant" in the second sentence.
The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical and inserted the fifth sentence.
Law review. - For note, "Using DNA Profiles to Obtain 'John Doe' Arrest Warrants and Indictments," see 58 Wash. & Lee L. Rev. 1585 (2001).
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 4; 5B M.J. Criminal Procedure, § 12; 19 M.J. Warrants, § 2.
CASE NOTES
Section mandatory. - This section leaves an officer into whose hands a warrant is delivered no choice. The warrant shall be executed by the officer into whose hands it is delivered. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).
Sufficiency of recitation of offense in warrant. - Warrants of arrest are required to recite the offense charged, but the same particularity is not expected or required as in indictments. Lacey v. Palmer, 93 Va. 159 , 24 S.E. 930 (1896). See also Satterfield v. Commonwealth, 105 Va. 867 , 52 S.E. 979 (1906).
Motion by defendants, company and debt collector, for sanctions, attorney's fees, and costs pursuant to Fed. R. Civ. P. 11 and § 1692k(a)(3) of the Fair Debt Collection Practices Act (FDCPA) was granted where plaintiff's contention that the debt collector lacked standing to seek a warrant for her arrest was meritless; Virginia law made clear that any person could lawfully seek to have a criminal warrant issued, and such warrant would issue if the officer investigating the complaint found that there was probable cause to believe that a criminal offense took place. Guidry v. Clare, 442 F. Supp. 2d 282, 2006 U.S. Dist. LEXIS 56447 (E.D. Va. 2006).
Arrest. - Where officers went to an arrestee's home to arrest the arrestee's son pursuant to a warrant, the arrestee allegedly closed the door on an officer's foot, and the arrestee was arrested for obstruction of justice pursuant to a warrant, the officers were entitled to summary judgment based on qualified immunity as to the arrestee's Fourth Amendment claim because their belief that there was probable cause was objectively reasonable; unlike federal law, Virginia law did not require officers seeking arrest warrants to do so by way of written declarations or sworn affidavits. Graham v. Gagnon, 104 F. Supp. 3d 753, 2015 U.S. Dist. LEXIS 61241 (E.D. Va. 2015), aff'd, 831 F.3d 176, 2016 U.S. App. LEXIS 13672 (4th Cir. 2016).
Probation violation. - Fourth Amendment and § 19.2-72 do not require sworn statements for the seizure of a probationer whose sentence to confinement has been suspended based on his failure to comply with specified terms and conditions of his probation. Unsworn written statements under § 53.1-149 , which showed that appellant had had only limited contact with probation authorities and that he still owed over $51,000 in restitution, and appellant's failure to comply with a show cause order were a sufficient basis for the trial court to issue a capias for appellant's arrest. Pierce v. Commonwealth, 48 Va. App. 660, 633 S.E.2d 755, 2006 Va. App. LEXIS 407 (2006).
Applied in Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977); Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).
CIRCUIT COURT OPINIONS
False arrest claim failed. - Students' false arrest and false imprisonment claims against a college president failed as there was no allegation implicating the president in any way in the students' arrests, and a magistrate issued warrants for the arrest of the students. Long v. Commonwealth,, 2007 Va. Cir. LEXIS 78 (Norfolk Apr. 13, 2007).
OPINIONS OF THE ATTORNEY GENERAL
Withdrawal or dismissal of warrant or summons. - Neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).
"Unarrest" of lawfully arrested person not authorized. - There is no authority or process by which a police officer or a Commonwealth's attorney may "unarrest" a person who is lawfully arrested on a warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).
§ 19.2-73. Issuance of summons instead of warrant in certain cases.
- In any misdemeanor case or in any class of misdemeanor cases, or in any case involving complaints made by any state or local governmental official or employee having responsibility for the enforcement of any statute, ordinance or administrative regulation, the magistrate or other issuing authority having jurisdiction may issue a summons instead of a warrant when there is reason to believe that the person charged will appear in the courts having jurisdiction over the trial of the offense charged.
- If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the officer at the medical facility may issue, on the premises of the medical facility, a summons for a violation of § 18.2-266 , 18.2-266 .1, 18.2-272 , or 46.2-341.24 and for refusal of tests in violation of subsection A or B of § 18.2-268.3 or subsection A of § 46.2-341.26:3 , in lieu of securing a warrant and without having to detain that person, provided that the officer has probable cause to place him under arrest. The issuance of such summons shall be deemed an arrest for purposes of Article 2 (§ 18.2-266 et seq.) of Chapter 7 of Title 18.2.
- Any person on whom such summons is served shall appear on the date set forth in same, and if such person fails to appear in such court at such time and on such date then he shall be treated in accordance with the provisions of § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested. (Code 1950, § 19.1-146; 1972, c. 461; 1975, c. 495; 1978, c. 500; 1981, c. 382; 2005, c. 425; 2010, c. 840; 2017, c. 623.)
The 2005 amendments. - The 2005 amendment by c. 425 redesignated the former subsection B as subsection C and inserted subsection B.
The 2010 amendments. - The 2010 amendment by c. 840, in subsection B, in the first sentence, deleted "arresting" preceding "officer" and added "and without having to detain that person, provided that the officer has probable cause to place him under arrest," and added the last sentence.
The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection B, inserted "or B" preceding "of § 18.2-268.3 ."
Law review. - For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 12; 11B M.J. Justices and Magistrates, § 33.
CASE NOTES
Constraint. - In a trial on the offense of driving under the influence, the circuit court properly admitted results of a blood test from a sample collected while defendant was in the hospital. Subsection B of § 19.2-73 authorized issuance of a summons, and an arrest followed by a release on a summons satisfied the requirement of "constraining" the arrestee's liberty under the implied consent statutes. Reading §§ 19.2-73 and 19.2-74 in pari materia with the implied consent statute, an arrest followed by a release on summons satisfies the requirement of "constraining" the arrestee's personal liberty, for purposes of implicating the statutory duty to provide a blood or breath sample. Young v. Commonwealth, 57 Va. App. 731, 706 S.E.2d 53, 2011 Va. App. LEXIS 77 (2011).
Applied in Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991).
OPINIONS OF THE ATTORNEY GENERAL
Withdrawal or dismissal of warrant or summons. - Neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).
"Unarrest" of lawfully arrested person not authorized. - There is no authority or process by which a police officer or a Commonwealth's attorney may "unarrest" a person who is lawfully arrested on a warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).
Proper procedure for officers obtaining blood samples. - Implied consent to a blood test is triggered by a valid arrest. If a common-law arrest is not feasible because a defendant is in a medical facility, the arrest may be made by the issuance of a summons pursuant to subsection B of § 19.2-73 , because that summons is deemed an arrest document. If a summons is issued, it must be based on probable cause, and it must be issued before obtaining the blood draw. The suspect should be advised of the requirements of the implied consent law, after which the blood test may be administered. The arresting officer should remain with the suspect until after the blood is drawn and then release him on the previously issued summons. If the suspect objects to the blood test, he should be charged with a violation of § 18.2-268.3 (refusal to take a blood or breath test). See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, No. 14-022, 2014 Va. AG LEXIS 66 (12/19/14).
§ 19.2-73.1. Notice of issuance of warrant or summons; appearance; failure to appear.
In any misdemeanor case or in any class of misdemeanor cases and in a Class 5 or Class 6 felony case, the chief of police of the city or county or his designee, or the sheriff or deputy sheriff of the county, if the county has no police department, in which the case is pending may notify the accused of the issuance of the warrant or summons and direct the accused to appear at the time and place directed for the purpose of the execution of the summons or warrant. However, the issuing judicial officer may direct the execution of such process prior to any such notification. If the accused does not appear, then the warrant or summons shall be executed and returned as provided by § 19.2-76 .
(1979, c. 335; 1991, c. 162; 1993, c. 350.)
§ 19.2-73.2. Law-enforcement officers to issue subpoenas; penalty.
Law-enforcement officers as defined in § 9.1-101 and state police officers, in the course of their duties, in the investigation of any Class 3 or Class 4 misdemeanor or any traffic infraction, may, within seventy-two hours of the time of the offense, issue a subpoena to any witness to appear in court and testify with respect to any such criminal charge or traffic infraction brought against any person as a result of such investigation. The return of service thereof shall be made within seventy-two hours after service to the appropriate court clerk. A subpoena so issued shall have the same force and effect as if issued by the court.
Any person failing to appear in response to a subpoena issued as provided in this section shall be punished as provided by law.
(1995, c. 335.)
§ 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special conservators of the peace.
-
- Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 , or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82 . A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 , or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82 .
- Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388 , the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.
- Unless otherwise authorized by law, any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.). Reports to the Central Criminal Records Exchange concerning such persons shall be made pursuant to subdivision A 2 of § 19.2-390 and subsection C of § 19.2-390 . Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82. Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested. Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.
- Conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) may issue summonses pursuant to this section, if such officers are in uniform or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.
- The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2-388 . If the summons is issued for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, the summons shall reference the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code. (Code 1950, § 19.1-92.1; 1973, c. 98; 1974, c. 481; 1975, c. 495; 1976, c. 753; 1978, c. 500; 1979, cc. 679, 680; 1980, c. 492; 1981, c. 382; 1982, cc. 485, 500; 1984, c. 24; 1988, c. 455; 1995, c. 471; 2010, c. 840; 2014, c. 543; 2019, cc. 782, 783; 2021, Sp. Sess. I, cc. 524, 542.)
Cross references. - As to limitation on powers of registered armed security officers, see § 9.1-146 .
As to punishment for Class 1, Class 2, Class 3, and Class 4 misdemeanors, see § 18.2-11 .
Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
2021 Acts, Sp. Sess. I, cc. 524 and 542, cl. 3 provides: "That the Attorney General, after consultation with the Committee on District Courts, the Superintendent of State Police, and the Commissioner of the Department of Motor Vehicles, shall amend the uniform summons described in § 46.2-388 of the Code of Virginia to reflect the amendments to the provisions of subsection C of § 19.2-74 of the Code of Virginia, as amended by this act, by July 1, 2021.
2021 Acts, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
The 2010 amendments. - The 2010 amendment by c. 840 substituted "as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 " for "as otherwise provided in Title 46.2, or § 18.2-266 " in the first sentence in subdivision A 1.
The 2014 amendments. - The 2014 amendment by c. 543 in subsection B substituted "Conservators" for "Special policemen of the counties as provided in § 15.2-1737 , special policemen or conservators," deleted "of this title and special policemen appointed by authority of a city's charter" following "( § 19.2-12 et seq.)," and made a minor stylistic change.
The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and rewrote subdivision A 3, which read: "Any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 ( § 19.2-387 et seq.) of this title. Reports to the Central Criminal Records Exchange concerning such persons shall be made after a disposition of guilt is entered as provided for in § 19.2-390 ."
The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical and added the second sentence in subsection C.
Law review. - For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).
For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).
For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).
For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 12; 8B M.J. Forgery, §§ 9, 24.
CASE NOTES
Section does not require arresting officers to issue plaintiff a summons instead of executing the warrant by arresting him. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).
Objective standard applied to determine whether statutory circumstances obtain. - Although § 19.2-74 refers to a predictive estimation of the accused person's future conduct, the standard for determining satisfaction of the statute is objective, whether evidence supports a reasonable belief that the statutory circumstances obtain. Fox v. Commonwealth, 43 Va. App. 446, 598 S.E.2d 770, 2004 Va. App. LEXIS 306 (2004).
A police officer is entitled to detain briefly an individual who has committed an offense, in order to obtain information required for the issuance of a summons; the arresting officer had probable cause to charge defendant with violating a city ordinance, "pedestrian in the roadway," and after informing defendant that he intended to issue him a summons, the officer legally detained him. Beale v. Commonwealth, No. 1412-96-1 (Ct. of Appeals Apr. 1, 1997).
This statute does not contemplate a custodial situation equivalent to an actual custodial arrest, and under it, a suspect is detained, or in the custody of the police officer, only long enough for the officer to take down the name and address of the person and issue a summons. Lovelace v. Commonwealth, 258 Va. 588 , 522 S.E.2d 856 (1999).
Custodial arrest authorized in certain cases. - Although this section provides that, in misdemeanor cases, an arresting officer shall issue the offender a summons and shall thereafter release the offender from custody, this section in conjunction with § 19.2-82 also permits such an officer to effect a warrantless custodial arrest if the offender fails or refuses to discontinue the unlawful act or refuses to give a written promise to appear or if the officer reasonably believes the offender will likely disregard the summons or do harm to himself or others. Commonwealth v. Dickson, No. 2503-00-1, 2001 Va. App. LEXIS 221 (Ct. of Appeals Apr. 23, 2001).
Defendant's custodial arrest complied with § 19.2-74 and a search incident to defendant's arrest complied with the Fourth Amendment as the circumstances supported a belief that defendant was likely to disregard the summons for a Class 1 misdemeanor or that he was a danger to himself or others where defendant fled when the officer exited his vehicle and discarded a concealed handgun as he ran, from which the serial number had been obliterated; whether the arresting officer actually held that belief was immaterial. Fox v. Commonwealth, 43 Va. App. 446, 598 S.E.2d 770, 2004 Va. App. LEXIS 306 (2004).
Custodial arrest authorized where defendant failed to comply with prior court order. - Officer had ample reason to arrest defendant rather than issue summons and release him based on defendant's failure to comply with prior court order that he stay away from certain property; thus, defendant's motion to suppress was properly denied since the subject evidence was found during a search incident to a valid arrest. Ross v. Commonwealth, No. 0342-04-2, 2004 Va. App. LEXIS 637 (Ct. of Appeals Dec. 28, 2004).
Constraint. - In a trial on the offense of driving under the influence, the circuit court properly admitted results of a blood test from a sample collected while defendant was in the hospital. Subsection B of § 19.2-73 authorized issuance of a summons, and an arrest followed by a release on a summons satisfied the requirement of "constraining" the arrestee's liberty under the implied consent statutes. Reading §§ 19.2-73 and 19.2-74 in pari materia with the implied consent statute, an arrest followed by a release on summons satisfies the requirement of "constraining" the arrestee's personal liberty, for purposes of implicating the statutory duty to provide a blood or breath sample. Young v. Commonwealth, 57 Va. App. 731, 706 S.E.2d 53, 2011 Va. App. LEXIS 77 (2011).
Search pursuant to issuance of citation or summons. - Class 3 and 4 misdemeanors are similar in nature and duration to a traffic stop and do not contemplate a custodial situation equivalent to an actual custodial arrest. Thus, an "arrest" that is effected by issuing a citation or summons rather than taking the suspect into custody does not, by itself, justify a full field-type search. However, such an encounter between police and an individual may involve some degree of danger to the officer or need to preserve or discover evidence sufficient to warrant an additional intrusion. Farrow v. Commonwealth, 31 Va. App. 517, 525 S.E.2d 11 (2000).
When an officer "arrested" defendant for trespass he did not use the correct procedure, under § 19.2-74 , when he placed her in custody, rather than issuing her a summons, because trespass was a class 1 misdemeanor, but, if there was a statutory violation, it did not require that evidence seized from defendant in a search incident to her arrest be suppressed, because exclusion of evidence was not an available remedy for a statutory violation, where no constitutional violation occurred. Coppedge v. Commonwealth, No. 2920-03-1, 2005 Va. App. LEXIS 23 (Ct. of Appeals Jan. 18, 2005).
Search incident to an arrest. - Warrantless arrest for driving with a suspended license was reasonable under the Fourth Amendment, even if it was not permitted under § 19.2-74 . Therefore, the crack cocaine and cash that the arrestee was carrying and that was discovered in a search incidental to the arrest did not need to be suppressed. Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559, 2008 U.S. LEXIS 3674 (2008).
Denial of defendant's motion to suppress was proper as defendant was arrested for trespassing under § 18.2-119 , and the Fourth Amendment's exclusionary rule did not require the exclusion of the evidence seized from defendant during a search incident to a valid seizure for a misdemeanor violation for which § 19.2-74 required release on a summons. Simmons v. Commonwealth,, 2008 Va. App. LEXIS 360 (July 29, 2008).
Issuance of summons to appear. - Traffic summons was one type of public record as an officer took the name and address of a person who had committed a crime and issued a summons to appear at a time and place to be specified in such summons, under § 19.2-74 A. 1. and 2., and the person then gave his written promise to appear at such time and place before the officer released him from custody, and any person refusing to give such written promise to appear under the provisions of § 19.2-74 was to be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, under § 19.2-74 A. 3. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).
Failure to raise argument in the trial court. - Ends of justice exception to Va. Sup. Ct. R. 5A:18 did not excuse defendant's failure to raise in the trial court the argument that defendant could not be convicted of obstructing justice because defendant was authorized to resist an unlawful arrest as the claimed error was not clear, substantial, and material. The trial court made an express finding that defendant's attempt to flee gave officers reason to believe, for purposes of § 19.2-74 , that defendant was a flight risk. Coleman v. Commonwealth,, 2008 Va. App. LEXIS 463 (Oct. 14, 2008).
Applied in Fisher v. Washington Metro. Area Transit Auth., 690 F.2d 1133 (4th Cir. 1982); Addison v. Commonwealth, 224 Va. 713 , 299 S.E.2d 521 (1983); Coston v. Commonwealth, 29 Va. App. 350, 512 S.E.2d 158 (1999); West v. Commonwealth, 36 Va. App. 237, 549 S.E.2d 605, 2001 Va. App. LEXIS 432 (2001).
CIRCUIT COURT OPINIONS
Custodial arrest authorized in certain cases. - Petitioner's custodial arrest for the misdemeanor offense of public drunkenness complied with this section and the Fourth Amendment because this section specifically excludes the offense of public drunkenness from its release from custody requirement and permits police to make custodial arrests of intoxicated persons and to search or question those persons incident to that arrest. Petitioner was taken into custody "for his safety" and officers could not release him where he was extremely intoxicated, his father had requested that he be removed from the father's home, and they had probable cause to arrest him for the murder of his wife. Hudson v. Dir. of the Dep't of Corr., 67 Va. Cir. 319, 2005 Va. Cir. LEXIS 147 (Clarke County May 16, 2005).
Where, after stopping defendant for speeding, an officer learned that defendant had committed his third driving under suspension violation, subdivision A 1 of this section applied; since defendant had repeatedly refused to cease his unlawful activity, the officer appropriately exercised his discretion in arresting defendant, and a subsequent search of the passenger compartment of the vehicle was constitutional. Commonwealth v. Williams, 68 Va. Cir. 265, 2005 Va. Cir. LEXIS 198 (Charlottesville July 19, 2005).
No probable cause for arrest. - As an officer did not and could not arrest defendant for the misdemeanor offense of possession of marijuana based on the marijuana found in defendant's car pursuant to a consent search, and as defendant withdrew his consent to a search of his person (including his wallet) before the officer found any incriminating evidence, the officer's search of defendant's wallet violated defendant's rights under U.S. Const., Amend. IV, and the methampetamine tablets found in the wallet were suppressed. Commonwealth v. Johnson, 84 Va. Cir. 518, 2012 Va. Cir. LEXIS 108 (Augusta County June 15, 2012).
Defendant not in custody. - Defendant's motion to suppress was overruled as he was not in a custodial situation before he was Mirandized because defendant could not have been arrested for the possession of marijuana offense alone. Commonwealth v. Clemmer, 101 Va. Cir. 467, 2018 Va. Cir. LEXIS 719 (Augusta County Mar. 22, 2018).
Suspended statements from illegal detention. - After a summons was issued, the defendant should have been free to leave a traffic stop and, where police lacked reasonable suspicion that he was acting illegally, his detention was an illegal seizure and any statements had to be suppressed. Commonwealth v. Hooks, 61 Va. Cir. 720, 2002 Va. Cir. LEXIS 312 (Fairfax County 2002).
§ 19.2-74.1.
Repealed by Acts 1981, c. 382.
§ 19.2-75. Copy of process to be left with accused; exception.
Except as provided in § 46.2-936 , any process issued against a person charged with a criminal offense shall be in duplicate and the officer serving such process shall leave a copy with the person charged.
(Code 1950, § 19.1-92; 1960, c. 366; 1975, c. 495.)
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 23; 19 M.J. Warrants, § 4.
CASE NOTES
Purpose of section. - The purpose of requiring a copy of a criminal process to be left with a defendant is to inform him of the specific charge made against him so that he may intelligently prepare his defense. Dorchincoz v. Commonwealth, 191 Va. 33 , 59 S.E.2d 863 (1950); Gooch v. City of Lynchburg, 201 Va. 172 , 110 S.E.2d 236 (1959); Hammer v. Commonwealth, 207 Va. 135 , 148 S.E.2d 878 (1966).
This section merely provides for the service of process against a person charged with a criminal offense once process is actually issued. It is not directed to or intended to be determinative of whether or not written notice or warrant must be issued before an accused may be tried for a misdemeanor. Gooch v. City of Lynchburg, 201 Va. 172 , 110 S.E.2d 236 (1959).
This section does not apply to an indictment. Rose v. Commonwealth, 189 Va. 771 , 55 S.E.2d 33 (1949).
Compliance with the section is not jurisdictional, and objection to noncompliance is waived if not taken advantage of at the trial. Rose v. Commonwealth, 189 Va. 771 , 55 S.E.2d 33 (1949).
But is presumed. - Where there is no showing that the accused did not receive a copy of the original process under which he was apprehended, the presumption is that this section was complied with. Rose v. Commonwealth, 189 Va. 771 , 55 S.E.2d 33 (1949).
Failure to comply is not necessarily reversible error. - While it is the duty of the arresting officer to comply with this section, his failure to do so does not constitute reversible error unless it affirmatively appears that defendant was prejudiced thereby. Dorchincoz v. Commonwealth, 191 Va. 33 , 59 S.E.2d 863 (1950); Hammer v. Commonwealth, 207 Va. 135 , 148 S.E.2d 878 (1966).
Failure to leave duplicate copy of process was not reversible under the facts of the case. Dorchincoz v. Commonwealth, 191 Va. 33 , 59 S.E.2d 863 (1950).
Formal warrant unnecessary when summons is issued under former § 46.1-178 (now § 46.2-936 ). - The clear and necessary implication to be drawn from this section, when read along with former § 46.1-178 (now § 46.2-936 ), which provides for the issuance of a summons for misdemeanors under former Title 46.1 (now Title 46.2), is that when a summons is issued under former § 46.1-178 (now § 46.2-936) there is no need for the issuance or service of a formal warrant. Tate v. Lamb, 195 Va. 1005 , 81 S.E.2d 743 (1954).
§ 19.2-76. Execution and return of warrant, capias or summons; arrest outside county or city where charge is to be tried.
A law-enforcement officer may execute within his jurisdiction a warrant, capias or summons issued anywhere in the Commonwealth. A jail officer as defined in § 53.1-1 employed at a regional jail or jail farm may execute upon a person being held in his jail a warrant, capias or summons issued anywhere in the Commonwealth. A warrant or capias shall be executed by the arrest of the accused, and a summons shall be executed by delivering a copy to the accused personally.
If the accused is a corporation, partnership, unincorporated association or legal entity other than an individual, a summons may be executed by service on the entity in the same manner as provided in Title 8.01 for service of process on that entity in a civil proceeding. However, if the summons is served on the entity by delivery to a registered agent or to any other agent who is not an officer, director, managing agent or employee of the entity, such agent shall not be personally subject to penalty for failure to appear as provided in § 19.2-128 , nor shall the agent be subject to punishment for contempt for failure to appear under his summons as provided in § 19.2-129 .
The law-enforcement officer or jail officer executing a warrant or capias shall endorse the date of execution thereon and make return thereof to a judicial officer. The law-enforcement officer executing a summons shall endorse the date of execution thereon and make return thereof to the court to which the summons is returnable.
Whenever a person is arrested upon a warrant or capias in a county or city other than that in which the charge is to be tried, the law-enforcement officer or jail officer making the arrest shall either (i) bring the accused forthwith before a judicial officer in the locality where the arrest was made or where the charge is to be tried or (ii) commit the accused to the custody of an officer from the county or city where the charge is to be tried who shall bring the accused forthwith before a judicial officer in the county or city in which the charge is to be tried. The judicial officer before whom the accused is brought shall immediately conduct a bail hearing and either admit the accused to bail or commit him to jail for transfer forthwith to the county or city where the charge is to be tried.
(Code 1950, §§ 19.1-98, 19.1-99; 1960, c. 366; 1975, c. 495; 1979, c. 661; 1993, c. 431; 1994, c. 933; 1997, c. 10; 1998, c. 615; 2013, c. 207.)
Cross references. - As to summons for use of toll facility without payment of toll, see § 46.2-819.3 .
The 2013 amendments. - The 2013 amendment by c. 207 inserted the second sentence in the first paragraph; and inserted "or jail officer" in the first sentence of the third and fourth paragraphs.
Research References. - Virginia Forms (Matthew Bender). No. 9-407. Warrant of Arrest (Bad Check); No. 9-410. Summons of Corporation--Misdemeanor/Felony; No. 9-602. Recall of Process.
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 13, 17, 19; 19 M.J. Warrants, § 4.
CASE NOTES
Section is absolutely unambiguous on how the officer is to execute the warrant. Hearn v. Hudson, 549 F. Supp. 949 (W.D. Va. 1982).
An accused may waive irregularities in the warrant of his arrest, and where he has done so, and the justice has jurisdiction of his person and of the offense with which he is charged, and hears the charge on its merits, the judgment of the justice is final and conclusive, and the guilt or innocence of the accused of that charge can never again be called in question. Jones v. Morris, 97 Va. 43 , 33 S.E. 377 (1899).
Arresting officer's failure to take defendant before a magistrate in the county or corporation in which the accused was arrested, as required by this section, was a mere procedural violation of this section which did not prejudice defendant and which did not involve an error of constitutional dimension giving rise to an application of the exclusionary rule. Tharp v. Commonwealth, 221 Va. 487 , 270 S.E.2d 752 (1980).
Effect of delay in taking defendant before magistrate. - Where defendant was legally seized and constitutionally detained, delay in taking him before a magistrate did not mean that the probable cause to hold him for the crimes stated in the warrants somehow evaporated, so as to require exclusion of the evidence developed during his detention. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).
In the Commonwealth, not every violation of the requirement that a suspect be taken before a magistrate without unnecessary delay results in the exclusion of evidence. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).
Where defendant was unlawfully arrested in Berryville, subsequently held in custody on Fairfax County warrants and ultimately transported to Fairfax County where he was admitted to bail, the failure of Berryville or Fairfax County officers to take him before a magistrate in Clarke County violated the clear directive in this section. However, the failure to abide by the statute was a mere procedural violation which did not involve an error of constitutional dimension giving rise to an application of the exclusionary rule. The delay in taking defendant before a magistrate, although a patent violation of statute, did not abridge his Eighth Amendment rights. Terrell v. Commonwealth, No. 0230-85 (Ct. of Appeals Oct. 10, 1986).
The clear legislative mandate in this section was not followed, where from the time Berryville officers took defendant into custody, at some time after 1:00 p.m., until the Fairfax County officers arrived at approximately 5:15 p.m., defendant was not taken before a magistrate. Given the affirmative obligation on law-enforcement officers imposed by this section, the Commonwealth bore the burden of showing the unavailability of such official. Therefore, Berryville officers violated this section. The Fairfax County officers also violated this section when they took custody of defendant and transported him back to their jurisdiction without first taking him before a magistrate in Clarke County. Terrell v. Commonwealth, No. 0230-85 (Ct. of Appeals Oct. 10, 1986).
Applied in Rowe v. Grizzard, 591 F. Supp. 389 (E.D. Va. 1984).
CIRCUIT COURT OPINIONS
Procedural error. - Arresting officer's failure to take defendant before a magistrate in the county or corporation in which the accused was arrested as required by this section was a mere procedural error and suppression of evidence and statements was not warranted as a result. Commonwealth v. Arava, 56 Va. Cir. 240, 2001 Va. Cir. LEXIS 133 (Arlington County 2001).
OPINIONS OF THE ATTORNEY GENERAL
Absent consent of a dwelling owner, a law-enforcement officer must obtain a warrant before entering a dwelling for the purpose of serving a summons for a misdemeanor. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 03-064 (9/16/03).
Execution of criminal warrants. - Officers of a regional jail do not have the authority to execute criminal warrants in the jail. See opinion of Attorney General to The Honorable Roy F. Evans, Jr., Commonwealth's Attorney for Smyth County, 06-005 (3/22/06).
Show cause summons. - Service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390 . See opinion of Attorney General to The Honorable Dennis S. Proffitt, Chesterfield County Sheriff, 09-070, 2009 Va. AG LEXIS 48 (10/26/09).
Execution of summons. - A prosecution for violating § 46.2-844 (passing a stopped school bus), which is based on a video monitoring system, may not be initiated by mailing a summons, but must be instituted by a law enforcement officer issuing a summons to the alleged violator See opinion of Attorney General to Larry W. Davis, Esquire, County Attorney for Albemarle County, No. 15-047, 2015 Va. AG LEXIS 29 (10/2/15).
§ 19.2-76.1. Submission of quarterly reports concerning unexecuted felony and misdemeanor warrants and other criminal process; destruction; dismissal.
It shall be the duty of the chief law-enforcement officer of the police department or sheriff's office, whichever is responsible for such service, in each county, town or city of the Commonwealth to submit quarterly reports to the attorney for the Commonwealth for the county, town or city concerning unexecuted felony and misdemeanor arrest warrants, summonses, capiases or other unexecuted criminal processes as hereinafter provided. The reports shall list those existing felony arrest warrants in his possession that have not been executed within seven years of the date of issuance, those misdemeanor arrest warrants, summonses and capiases and other criminal processes in his possession that have not been executed within three years from the date of issuance, and those unexecuted misdemeanor arrest warrants, summonses and capiases in his possession that were issued for a now deceased person, based on mistaken identity or as a result of any other technical or legal error. The reports shall be submitted in writing no later than the tenth day of April, July, October, and January of each year, together with the unexecuted felony and misdemeanor warrants, or other unexecuted criminal processes listed therein. Upon receipt of the report and the warrants listed therein, the attorney for the Commonwealth shall petition the circuit court of the county or city for the destruction of such unexecuted felony and misdemeanor warrants, summonses, capiases or other unexecuted criminal processes. The attorney for the Commonwealth may petition that certain of the unexecuted warrants, summonses, capiases and other unexecuted criminal processes not be destroyed based upon justifiable continuing, active investigation of the cases. The circuit court shall order the destruction of each such unexecuted felony warrant and each unexecuted misdemeanor warrant, summons, capias and other criminal process except (i) any warrant that charges aggravated murder and (ii) any unexecuted criminal process whose preservation is deemed justifiable by the court. No arrest shall be made under the authority of any warrant or other process which has been ordered destroyed pursuant to this section. Nothing in this section shall be construed to relate to or affect the time within which a prosecution for a felony or a misdemeanor shall be commenced.
Notwithstanding the foregoing, an attorney for the Commonwealth may at any time move for the dismissal and destruction of any unexecuted warrant or summons issued by a magistrate upon presentation of such warrant or summons to the court in which the warrant or summons would otherwise be returnable. The court shall not order the dismissal and destruction of any warrant that charges aggravated murder and shall not order the dismissal and destruction of an unexecuted criminal process whose preservation is deemed justifiable by the court. Dismissal of such a warrant or summons shall be without prejudice.
As used herein, the term "chief law-enforcement officer" refers to the chiefs of police of cities, counties and towns and sheriffs of cities and counties, unless a political subdivision has otherwise designated its chief law-enforcement officer by appropriate resolution or ordinance, in which case the local designation shall be controlling.
(1976, c. 252; 1979, c. 34; 1982, c. 608; 1985, c. 199; 1990, c. 626; 1991, c. 542; 1993, c. 550; 2003, c. 147; 2010, c. 652; 2011, cc. 336, 347; 2021, Sp. Sess. I, cc. 344, 345.)
Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2003 amendments. - The 2003 amendment by c. 147, in the second sentence of the first paragraph, twice substituted "that" for "which," deleted "and" following the first occurrence of "issuance," and inserted "and those unexecuted misdemeanor arrest warrants, summonses and capiases in his possession that were issued for a now deceased person, based on mistaken identity or as a result of any other technical or legal error" at the end of the sentence.
The 2010 amendments. - The 2010 amendment by c. 652 inserted the second paragraph.
The 2011 amendments. - The 2011 amendments by cc. 336 and 347 are identical, and in the second paragraph, inserted "and destruction" in the first sentence and added the second sentence.
The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "that charges aggravated murder" for "which charges capital murder" in clause (i) of the first paragraph and in the second sentence of the second paragraph.
Law review. - For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).
Research References. - Virginia Forms (Matthew Bender). No. 9-602. Recall of Process.
CASE NOTES
Validity of capias. - Even if the capias at issue was subject to being destroyed under § 19.2-76.1 as more than three years old, because it had not in fact been ordered destroyed, it remained valid for purposes of providing the authority to arrest defendant for a probation violation. Boone v. Commonwealth, 60 Va. App. 419, 728 S.E.2d 517, 2012 Va. App. LEXIS 241 (2012).
Authority to move for dismissal of warrant. - Police officer was entitled to qualified immunity with respect to plaintiffs' Fourth Amendment claims because regardless of whether a duty existed to withdraw arrest warrants after learning that the charges were erroneous, that proposed duty was certainly not clearly established. Moreover, under Virginia law, only an attorney for Commonwealth could move a court for dismissal of a lawfully issued arrest warrant. Safar v. Tingle, 859 F.3d 241 (4th Cir. 2017).
Commonwealth's attorney was entitled to absolute prosecutorial immunity with respect to plaintiffs' Fourth Amendment claims, as the choice of whether to move a court for withdrawal of a warrant was an extension of a prosecutor's fundamental judgment of whether and when to prosecute. Moreover, under Virginia law, a prosecutor did not have unilateral authority to withdraw an arrest warrant and had to first file a motion to dismiss with the appropriate court, and filing and arguing motions in court was garden-variety trial work that fell within the prosecutor's core advocacy duties. Safar v. Tingle, 859 F.3d 241 (4th Cir. 2017).
OPINIONS OF THE ATTORNEY GENERAL
"Unarrest" of lawfully arrested person not authorized. - There is no authority or process by which a police officer or a Commonwealth's attorney may "unarrest" a person who is lawfully arrested on a warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).
§ 19.2-76.2. Mailing of summons in certain cases.
Notwithstanding the provisions of § 19.2-76 , whenever a summons for a violation of a county, city or town parking ordinance is served in any county, city or town it may be executed by mailing by first-class mail a copy thereof to the address of the owner of the vehicle as shown on the records of the Department of Motor Vehicles. In addition, whenever a summons for a violation of a county, city or town trash ordinance punishable as a misdemeanor under § 15.2-901 is served in any county, city or town, it may be executed by mailing a copy by first-class mail to the person who occupies the subject premises. If the person fail to appear on the date of return set out in the summons mailed pursuant to this section, the summons shall be executed in the manner set out in § 19.2-76.3 of this Code.
No proceedings for contempt or arrest of a person summoned by mailing shall be instituted for his failure to appear on the return date of the summons.
(1977, c. 233; 1978, c. 781; 1983, c. 254; 1984, c. 119.)
OPINIONS OF THE ATTORNEY GENERAL
Withdrawal or dismissal of warrant or summons. - Neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).
Execution of summons. - A prosecution for violating § 46.2-844 (passing a stopped school bus), which is based on a video monitoring system, may not be initiated by mailing a summons, but must be instituted by a law enforcement officer issuing a summons to the alleged violator See opinion of Attorney General to Larry W. Davis, Esquire, County Attorney for Albemarle County, No. 15-047, 2015 Va. AG LEXIS 29 (10/2/15).
§ 19.2-76.3. Failure to appear on return date for summons issued under § 19.2-76.2.
- If any person fails to appear on the date of the return contained in the summons issued in accordance with § 19.2-76.2 , then a summons shall be delivered to the sheriff of the county, city, or town or to another authorized process server for service on that person as set out in § 8.01-296 .
- If such person then fails to appear on the date of return as contained in the summons so issued, a summons shall be executed in the manner set out in § 19.2-76 .
-
No proceedings for contempt or arrest of any person summoned under the provisions of this section shall be instituted unless such person has been personally served with a summons and has failed to appear on the return date contained therein.
(1983, c. 254; 1994, c. 642; 2016, cc. 242, 354.)
The 2016 amendments. - The 2016 amendments by cc. 242 and 354 are identical, and inserted "or to another authorized process server" in subsection A.
§ 19.2-77. Escape, flight and pursuit; arrest anywhere in Commonwealth.
Whenever a person in the custody of an officer shall escape or whenever a person shall flee from an officer attempting to arrest him, such officer, with or without a warrant, may pursue such person anywhere in the Commonwealth and, when actually in close pursuit, may arrest him wherever he is found. If the arrest is made in a county or city adjoining that from which the accused fled, or in any area of the Commonwealth within one mile of the boundary of the county or city from which he fled, the officer may forthwith return the accused before the proper official of the county or city from which he fled. If the arrest is made beyond the foregoing limits, the officer shall proceed according to the provisions of § 19.2-76 , and if such arrest is made without a warrant, the officer shall procure a warrant from the magistrate serving the county or city wherein the arrest was made, charging the accused with the offense committed in the county or city from which he fled.
(Code 1950, § 19.1-94; 1960, c. 366; 1975, c. 495; 1992, c. 881; 2008, cc. 551, 691.)
Cross references. - As to warrants for escaped patients of state hospital, see §§ 37.2-834 and 37.2-835 .
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "magistrate serving the county" for "magistrate of the county" in the last sentence.
Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 4, 7; 16 M.J. Searches and Seizures, § 7.
CASE NOTES
"Close pursuit" is a relative term and has reference to time or distance, or both, depending on the facts of the case. Callands v. Commonwealth, 208 Va. 340 , 157 S.E.2d 198 (1967); Reyes v. Slayton, 331 F. Supp. 325 (W.D. Va. 1971).
Close pursuit is pursuit instituted immediately and with intent to recapture or reclaim, as where a thief is fleeing with stolen goods. Reyes v. Slayton, 331 F. Supp. 325 (W.D. Va. 1971).
Officer was in "close pursuit" where he was directly behind defendant the entire time he followed him, and he activated his lights as soon as it was safe to pull defendant over. Hamm v. City of Norton, No. 1607-98-3 (Ct. of Appeals Sept. 28, 1999).
Circuit court properly overruled defendant's motion to suppress because, assuming without deciding that a Virginia Military Institute police officer arrested defendant outside of his territorial jurisdiction, the issuance of an arrest warrant by a judicial officer cured any defect in the arrest, defendant never challenged the magistrate's finding of probable cause or the validity of the warrant upon which he was tried, and there was no legal basis for defendant's assertion that he was denied procedural due process and that the circuit court erred in denying his motion to suppress inasmuch as he had a full and fair opportunity to attempt to prove or disprove any prejudicial effect of the violation. Martin v. Commonwealth, No. 1219-17-3, 2018 Va. App. LEXIS 128 (May 8, 2018).
Failure to heed officer's lights and siren constituted flight. - Under the facts, where defendant disregarded the officer's pursuit and his emergency lights and siren and attempted to find refuge beyond the officer's jurisdiction, his failure to heed the officer's lights and siren constituted flight from an attempt to arrest; the fact that defendant was not speeding or was not driving so as to elude officer did not mean that he was not fleeing from officer. Neiss v. Commonwealth, 16 Va. App. 807, 433 S.E.2d 262 (1993).
OPINIONS OF THE ATTORNEY GENERAL
Absent consent of a dwelling owner, a law-enforcement officer must obtain a warrant before entering a dwelling for the purpose of serving a summons for a misdemeanor. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 03-064 (9/16/03).
§ 19.2-78. Uniform of officer making arrest.
All officers whose duties are to make arrests acting under the authority of any law of this Commonwealth or any subdivision thereof, who shall make any arrest, search or seizure on any public road or highway of this Commonwealth shall be dressed at the time of making any such arrest, search or seizure in such uniform as he may customarily wear in the performance of his duties which will clearly show him to casual observation to be an officer.
Nothing in this section shall render unlawful any arrest, search or seizure by an officer who is not in such customary uniform.
(Code 1950, §§ 19.1-95, 19.1-96; 1960, c. 366; 1975, c. 495.)
Cross references. - As to unlawful wearing of officer's uniform, see § 18.2-175 .
For provisions concerning adoption of uniforms for State Police, see §§ 52-9.1 and 52-9.2 .
§ 19.2-79. Arrest by officers of other states of United States.
Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this Commonwealth in close pursuit, and continues within this Commonwealth in such close pursuit, of a person in order to arrest him on the ground that he has committed a felony in such other state shall have the same authority to arrest and hold in custody such person as members of a duly organized state, county or municipal peace unit of this Commonwealth have to arrest and hold in custody a person on the ground that he has committed a felony in this Commonwealth, if the state from which such person has fled extends similar privileges to any member of a duly organized state, county or municipal peace unit of this Commonwealth.
If an arrest is made in this Commonwealth by an officer of another state in accordance with the provisions of the first paragraph of this section, he shall without unnecessary delay take the person arrested before a judge of a general district court, or of the circuit court, of the county or city in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor. If the judge determines that the arrest was unlawful he shall discharge the person arrested.
The first paragraph of this section shall not be construed so as to make unlawful any arrest in this Commonwealth which would otherwise be lawful.
For the purpose of this section the word "State" shall include the District of Columbia.
(Code 1950, § 19.1-97; 1960, c. 366; 1975, c. 495.)
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 7; 5B M.J. Criminal Procedure, §§ 13, 17.
§ 19.2-80. Duty of arresting officer; bail.
In any case in which an officer does not issue a summons pursuant to § 19.2-74 or § 46.2-936 , a law-enforcement officer making an arrest under a warrant or capias shall bring the arrested person without unnecessary delay before a judicial officer. The judicial officer shall immediately conduct a bail hearing and either admit the accused to bail or commit him to jail. However, if (i) the accused is charged with a misdemeanor and is brought before a judge of the court having jurisdiction to try the case and (ii) both the accused and the Commonwealth consent, the judge may proceed to trial instead of conducting a bail hearing.
(Code 1950, § 19.1-98; 1960, c. 366; 1975, c. 495; 1979, c. 679; 1986, c. 327; 1997, c. 10.)
Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 13, 14, 17, 19.
CASE NOTES
Term "forthwith," as used in § 19.2-82 , is synonymous with standard used in this section, and the same remedies for a violation of this section should apply to a violation of § 19.2-82 . Slade v. Commonwealth, No. 0786-85 (Ct. of Appeals Feb. 4, 1987).
Officer cannot hold prisoner unreasonable time before making return. - Under this section there must be a reasonable time allowed for making return of the warrant of arrest, and some latitude must be given the officers in keeping a prisoner in custody after he has been arrested and before he is taken to the justice. But it is not permissible to trifle with him, and detain and interrogate him, for the ulterior purpose of extracting a confession as to his own guilt, or getting information from him as to the guilt of others, and it matters not at all that the process of arrest was in its inception regular and valid, and that it was obtained on probable cause. Sands & Co. v. Norvell, 126 Va. 384 , 101 S.E. 569 (1919).
False imprisonment may result not only from the arrest of a person without any valid warrant, but also from the unlawful detention of a prisoner who has been lawfully arrested. Unreasonable delay in presenting a prisoner for examination or trial, and a fortiori mistreatment after arrest followed by release without any hearing before the magistrate, are instances in point. Sands & Co. v. Norvell, 126 Va. 384 , 101 S.E. 569 (1919).
Statement admissible despite delay. - Failure promptly to present a defendant as required by this section is a mere procedural violation where it involves no constitutional error, thus, a statement obtained without infringing constitutional safeguards is admissible. Alatishe v. Commonwealth, 12 Va. App. 376, 404 S.E.2d 81 (1991).
Even where appeals court assumed without deciding that the delay in bringing a defendant before the magistrate violated § 19.2-80 , such violation did not require exclusion of his statements. Lewis v. Commonwealth, No. 3064-01-1, 2002 Va. App. LEXIS 640 (Ct. of Appeals Oct. 22, 2002).
Where defendant was taken before a magistrate only 15 minutes after his arrest, evidence obtained pertaining to the case should not have been suppressed as the product of a violation of this section. Pearson v. Commonwealth, 221 Va. 936 , 275 S.E.2d 893 (1981).
Appearance before magistrate did not constitute hearing contemplated by this section. - Where plaintiff who had served sentence was arrested under bench warrant mistakenly issued for failure to serve such sentence, appearance before night magistrate who did nothing beyond signing a form committing the plaintiff to jail, did not constitute the advertisement hearing contemplated by this section. McDonald v. Dunning, 760 F. Supp. 1156 (E.D. Va. 1991).
CIRCUIT COURT OPINIONS
Delay. - Five hour and 47 minute delay in presenting defendant to a magistrate did not constitute unnecessary delay proscribed by this section because the bulk of the delay was due to defendant's medical treatment by emergency personnel at the scene and at a hospital, caused by defendant's strange and erratic behavior. Commonwealth v. Long, 88 Va. Cir. 335, 2014 Va. Cir. LEXIS 24 (Roanoke County June 18, 2014).
OPINIONS OF THE ATTORNEY GENERAL
Bringing arrestee to magistrate's office. - There is no requirement that law-enforcement officer bring arrestee to nearest magistrate's office. See opinion of Attorney General to The Honorable Danny R. Fox, Sheriff for Mecklenburg County, 04-015 (4/13/04).
§ 19.2-80.1. When arrested person operating motor vehicle; how vehicle removed from scene of arrest.
In any case in which a police officer arrests the operator of a motor vehicle and there is no legal cause for the retention of the motor vehicle by the officer, the officer shall allow the person arrested to designate another person who is present at the scene of the arrest and a licensed driver to drive the motor vehicle from the scene to a place designated by the person arrested. If such a designation is not made, the officer may cause the vehicle to be taken to the nearest appropriate place for safekeeping.
(1981, c. 306.)
CASE NOTES
Police had legitimate reason to impound and inventory vehicle where there was no other licensed driver present at the scene who could have been designated by the defendant to drive the vehicle. Butler v. Commonwealth, 31 Va. App. 614, 525 S.E.2d 58 (2000).
§ 19.2-80.2. Duty of arresting officer; providing magistrate or court with criminal history information.
In any case in which an officer proceeds under §§ 19.2-76 , 19.2-80 and 19.2-82 , such officer shall, to the extent possible, obtain and provide the magistrate or court with the arrested person's criminal history information prior to any proceeding under Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. A pretrial services agency established pursuant to § 19.2-152.2 may, in lieu of the arresting officer, provide the criminal history to the magistrate or court.
(1999, cc. 829, 846; 2007, c. 133.)
The 2007 amendments. - The 2007 amendment by c. 133, in the last sentence, substituted "pretrial services agency" for "pretrial services program" and " § 19.2-152.2 " for " § 19.2-152.4 ."
§ 19.2-81. Arrest without warrant authorized in certain cases.
-
The following officers shall have the powers of arrest as provided in this section:
- Members of the State Police force of the Commonwealth;
- Sheriffs of the various counties and cities, and their deputies;
- Members of any county police force or any duly constituted police force of any city or town of the Commonwealth;
- The Commissioner, members and employees of the Marine Resources Commission granted the power of arrest pursuant to § 28.2-900 ;
- Regular conservation police officers appointed pursuant to § 29.1-200 ;
- United States Coast Guard and United States Coast Guard Reserve commissioned, warrant, and petty officers authorized under § 29.1-205 to make arrests;
- Conservation officers appointed pursuant to § 10.1-115 ;
- Full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 ;
- Special agents of the Virginia Alcoholic Beverage Control Authority;
- Campus police officers appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1; and
- Members of the Division of Capitol Police.
- Such officers may arrest without a warrant any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence. Such officers may arrest without a warrant any person whom the officer has probable cause to suspect of operating any watercraft or motorboat while (i) intoxicated in violation of subsection B of § 29.1-738 or a substantially similar ordinance of any county, city, or town in the Commonwealth or (ii) in violation of an order issued pursuant to § 29.1-738.4 and may thereafter transfer custody of the person arrested to another officer, who may obtain a warrant based upon statements made to him by the arresting officer.
- Any such officer may, at the scene of any accident involving a motor vehicle, watercraft as defined in § 29.1-733.2 or motorboat, or at any hospital or medical facility to which any person involved in such accident has been transported, or in the apprehension of any person charged with the theft of any motor vehicle, on any of the highways or waters of the Commonwealth, upon reasonable grounds to believe, based upon personal investigation, including information obtained from eyewitnesses, that a crime has been committed by any person then and there present, apprehend such person without a warrant of arrest. For purposes of this section, "the scene of any accident" shall include a reasonable location where a vehicle or person involved in an accident has been moved at the direction of a law-enforcement officer to facilitate the clearing of the highway or to ensure the safety of the motoring public.
- Such officers may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of driving or operating a motor vehicle, watercraft or motorboat while intoxicated in violation of § 18.2-266 , 18.2-266 .1, 46.2-341.24 , or subsection B of § 29.1-738 ; or a substantially similar ordinance of any county, city, or town in the Commonwealth, whether or not the offense was committed in such officer's presence. Such officers may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of operating a watercraft or motorboat in violation of an order issued pursuant to § 29.1-738.4 , whether or not the offense was committed in such officer's presence.
- Such officers may arrest, without a warrant or a capias, persons duly charged with a crime in another jurisdiction upon receipt of a photocopy of a warrant or a capias, telegram, computer printout, facsimile printout, a radio, telephone or teletype message, in which photocopy of a warrant, telegram, computer printout, facsimile printout, radio, telephone or teletype message shall be given the name or a reasonably accurate description of such person wanted and the crime alleged.
- Such officers may arrest, without a warrant or a capias, for an alleged misdemeanor not committed in his presence when the officer receives a radio message from his department or other law-enforcement agency within the Commonwealth that a warrant or capias for such offense is on file.
- Such officers may also arrest without a warrant for an alleged misdemeanor not committed in their presence involving (i) shoplifting in violation of § 18.2-96 or 18.2-103 or a similar local ordinance, (ii) carrying a weapon on school property in violation of § 18.2-308.1 , (iii) assault and battery, (iv) brandishing a firearm in violation of § 18.2-282 , or (v) destruction of property in violation of § 18.2-137 , when such property is located on premises used for business or commercial purposes, or a similar local ordinance, when any such arrest is based on probable cause upon reasonable complaint of the person who observed the alleged offense. The arresting officer may issue a summons to any person arrested under this section for a misdemeanor violation involving shoplifting. (Code 1950, § 19.1-100; 1960, c. 366; 1974, c. 241; 1975, c. 495; 1976, cc. 515, 570; 1977, c. 97; 1979, c. 268; 1982, c. 272; 1983, c. 206; 1984, c. 534; 1985, c. 507; 1988, cc. 353, 744, 752, 853; 1989, c. 726; 1990, cc. 635, 744, 784; 1995, c. 465; 1996, cc. 866, 929, 1015; 1998, c. 684; 2004, c. 949; 2005, cc. 88, 435; 2008, cc. 460, 737; 2010, c. 840; 2011, cc. 510, 643; 2012, c. 776; 2013, c. 787; 2014, c. 543; 2015, cc. 38, 730; 2017, c. 208.)
Cross references. - For arrests without warrants in cases of flight and pursuit, see § 19.2-77 .
For statute authorizing arrests without warrants in connection with the extradition of criminals, see § 19.2-100 .
Editor's note. - Acts 2013, c. 787, cl. 3 provides: "That the provisions of this act shall become effective on July 1, 2014."
Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."
At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subdivision A 10 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.
The 2004 amendments. - The 2004 amendment by c. 949, in subdivision 7, added the last sentence in the fourth paragraph.
The 2005 amendments. - The 2005 amendment by c. 88 added subdivision 8 and made related changes.
The 2005 amendment by c. 435 inserted "or a capias" in the fifth and sixth paragraphs.
The 2008 amendments. - The 2008 amendment by c. 460 added subdivision 9; and made related changes.
The 2008 amendment by c. 737 inserted the present second sentence in the third paragraph following subdivision 8 [now subdivision 9].
The 2010 amendments. - The 2010 amendment by c. 840 added the subsection designations; deleted the last paragraph in subsection B, which dealt with an officer's power to arrest without a warrant persons intoxicated while in violation of subsection B of § 29.1-738 or of an order issued pursuant to § 29.1-738.4 ; and rewrote subsection D, in part by adding the last sentence.
The 2011 amendments. - The 2011 amendment by c. 510 added the last paragraph in subsection B.
The 2011 amendment by c. 643 added subdivision A 10 and made a related change.
The 2012 amendments. - The 2012 amendment by c. 776 inserted subdivision A 11 and made a related change.
The 2013 amendments. - The 2013 amendment by c. 787, effective July 1, 2014, substituted " § 29.1-733.2 " for " § 29.1-712 " in subsection C.
The 2014 amendments. - The 2014 amendment by c. 543 deleted subdivision A 7 and redesignated the remaining subdivisions accordingly.
The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Virginia Alcoholic Beverage Control Authority" for "Department of Alcoholic Beverage Control" in subdivision A 9.
The 2017 amendments. - The 2017 amendment by c. 208 added subdivision A 11, and made related changes.
Law review. - For comment on the presence requirement and the "police-team" rule in arrest for misdemeanors, see 26 Wash. & Lee L. Rev. 119 (1969). For survey of recent legislation on criminal procedure - authority of police to question and search suspicious persons, see 5 U. Rich. L. Rev. 191 (1970). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For note comparing Virginia law with a model implied consent statute for drunken drivers, see 12 Wm. & Mary L. Rev. 654 (1971). For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia law on criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For note on the constitutionality of an identification requirement for lawfully stopped persons, see 37 Wash. & Lee L. Rev. 253 (1980). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981). For article, "State Court Activism and Searches Incident to Arrest," see 68 Va. L. Rev. 1085 (1982). For note on stop and frisk based upon anonymous telephone tips, see 39 Wash. & Lee L. Rev. 1437 (1982). For comment on spouse abuse in Virginia, see 17 U. Rich. L. Rev. 633 (1983). For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985). For comment on what standard governs investigative stops in Virginia, see 9 G.M.U. L. Rev. 313 (1987).
For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).
For note, "New Theories of Guilt on Appeal in Virginia Criminal Cases," see 50 Wm. and Mary L. Rev. 2177 (2009).
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 4, 6, 8-10, 12; 16 M.J. Right of Privacy, § 1.
CASE NOTES
I. IN GENERAL.
Editor's note. - Some of the cases annotated below were decided under former § 19.2-83 .
The test of constitutional validity is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable man in believing that an offense has been committed. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).
Section violation does not necessarily result in Fourth Amendment violation. - Violation of this section did not necessarily result in a Fourth Amendment violation or warrant application of the exclusionary rule, where a police officer had probable cause to arrest defendant on a "peeping tom" charge and anything seized as a result of that arrest was subject to being used against him. Lovelace v. Commonwealth, No. 0822-88-4 (Ct. of Appeals Apr. 24, 1990).
There is no Fourth Amendment violation for misdemeanor arrests committed outside the presence of the arresting state officer. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
There is no constitutional violation where state police officers make warrantless arrests for misdemeanors not committed in their presence. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
Purpose of provision for arrest at scene of accident. - The legislature intended for the provisions of this section, inter alia, to facilitate the timely arrest of persons in motor vehicle accidents involving alcohol or other intoxicants so that they may be tested under the implied consent law to determine their blood alcohol content. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).
The term "accident" means an event occurring by chance or from unknown causes or an unfortunate event; there is nothing inherent in the meaning of the word that suggests that it applies only when a vehicle strikes or collides with a person or property. Leveroni v. County of Arlington, 18 Va. App. 626, 445 S.E.2d 723 (1994).
Trial court did not err in ruling that an "accident" occurred sufficient to authorize warrantless arrest, where defendant's vehicle went far enough off paved roadway to become mired in mud up to its axles. Ferrufino v. Commonwealth, No. 1930-98-4, 1999 Va. App. LEXIS 626 (Nov. 9, 1999).
Lineal and temporal criteria for arrest at scene of accident. - The time and place elements of the res gestae doctrine are applicable by analogy to a court's determination of whether a warrantless arrest occurred "at the scene of any accident," and whether an arrest occurred at the scene of an accident depends upon whether the relevant factors are linked by time and place or by any reasonable temporal and/or lineal criteria. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).
Arrest at scene of accident shown. - A defendant was arrested at the scene of an accident within the meaning of this section where the evidence established that the arresting officer arrived at the intersection at which the accident occurred within minutes of its occurrence, and that from that intersection he could see the tow truck and the house where defendant's vehicle was parked and that he then proceeded directly to that location, which was about 100 yards away, arriving twenty to thirty seconds later; under a res gestae analysis of time and place, the officer's arrest of the defendant, at this location and so close in time to the accident, met the lineal and temporal requirements necessary to constitute an arrest at the scene of the accident. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).
Surveillance and legitimate inquiry. - This section does not deny to the police the authority to discharge their proper and expected function of maintaining public order through surveillance and legitimate inquiry. Troncoso v. Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991).
Departure from misdemeanor presence rule contrary to legislative intent. - A careful reading of the statute indicates that any departure from the misdemeanor presence rule, except as specified by the statute, is contrary to the legislative intent. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
Protective search of area of suspect's immediate control. - Police officers may, whenever they possess an articulable and objectively reasonable belief that a suspect is presently or potentially dangerous, conduct a protective search of the area within the suspect's immediate control. If the suspect moves about, an officer is justified in staying with the individual during the course of the stop and conducting a protective search of the areas which come within the suspect's immediate control, even if this action necessitates entry into the suspect's home. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).
It makes no difference that the object removed from subject's person is not a weapon. To justify removal, it is only necessary that the officer reasonably believes the object could be a weapon. Lansdown v. Commonwealth, 226 Va. 204 , 308 S.E.2d 106 (1983), cert. denied, 465 U.S. 1104, 104 S. Ct. 1604, 80 L. Ed. 2d 134 (1984).
When pat-down search authorized. - The authority to conduct a pat-down search does not automatically accompany an investigative detention. Only where the officer can point to particular facts from which he reasonably inferred that the individual was armed and dangerous is he justified in searching for weapons. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).
To justify removal of item from pocket of defendant during pat-down search, it was not necessary that the item actually be a weapon. Officer was entitled to remove the item if he reasonably believed that it could be a weapon. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).
Pat-down search for weapons held reasonable. - Even though the officers who detained defendant had no information that he was armed or that he had a past history of violence, they acted reasonably when conducting a protective pat-down search for weapons in light of the fact that they had a reasonable suspicion that defendant was presently engaged in narcotics distribution. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).
Search of passenger compartment subsequent to arrest authorized. - Once defendant was lawfully arrested for reckless driving, police officer was authorized to undertake a related search of the vehicle's passenger compartment. Joe v. Commonwealth, No. 1996-93-1, 1995 Va. App. LEXIS 33 (Ct. of Appeals Jan. 10, 1995).
Good faith. - Under this section the good faith of the arresting officer is not a factor. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).
Arrest upon knowledge of existence of unexecuted felony warrant. - An officer has probable cause, and indeed the legal duty, to arrest upon knowledge of the existence of an unexecuted felony warrant for the suspect. Crowder v. Commonwealth, 213 Va. 151 , 191 S.E.2d 239 (1972).
Where the arresting officer was acting on personal knowledge of the existence of felony warrants commanding the arrest of defendant, it would be a strained construction of the law to vitiate an arrest made under such circumstances, notwithstanding a statute which permits the arrest had the required information and allegation come to him by radio, telegram or teletype. Crowder v. Commonwealth, 213 Va. 151 , 191 S.E.2d 239 (1972).
Arrest resulting from mistake of law should be judged by same test as one stemming from mistake of fact, viz., whether the arresting officer acted "in good faith and with probable cause." This test "has been consistently read as meaning good faith and 'reasonable belief' in the validity of the arrest." DeChene v. Smallwood, 226 Va. 475 , 311 S.E.2d 749, cert. denied, 469 U.S. 857, 105 S. Ct. 184, 83 L. Ed. 2d 118 (1984).
Where conduct which prompted arrest occurred in officer's presence, the legality of the arrest will turn on whether the officer acted in good faith and with reasonable belief in the validity of the arrest. DeChene v. Smallwood, 226 Va. 475 , 311 S.E.2d 749, cert. denied, 469 U.S. 857, 105 S. Ct. 184, 83 L. Ed. 2d 118 (1984).
An offense is committed within the presence of an officer, within the meaning of the misdemeanor presence rule, when he has direct personal knowledge, through his sight, hearing, or other senses that it is then and there being committed. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
When an officer came upon defendant's vehicle with its hazard lights operating, while defendant went into a building to make a delivery, defendant had not terminated the operation of the vehicle and he committed the crime of operating the vehicle without a license in the officer's presence, authorizing the officer to arrest him without a warrant. Harris v. Commonwealth, No. 1615-01-2, 2002 Va. App. LEXIS 365 (Ct. of Appeals July 2, 2002).
Eyewitness testimony of sexual assault sufficiently independent of evidence obtained by GPS device. - Exclusionary rule under Va. Const., Art. I, § 10, did not bar the eyewitness testimony of the officers who saw defendant commit a sexual assault, which was a new and distinct offense, and sufficiently independent of any information obtained by them from the GPS that they had placed on a van driven by defendant without a warrant. Foltz v. Commonwealth, 58 Va. App. 107, 706 S.E.2d 914, 2011 Va. App. LEXIS 165 (2011).
Officer's personal knowledge of offense. - Unless the arrest is one within the various statutory exceptions to the general rule, a police officer may not arrest a misdemeanant without a warrant except when an officer has personal knowledge acquired by his personal senses that an offense was committed in his presence. Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987).
A legal warrantless arrest cannot be effectuated based upon the officer having information from others which leads him to believe an offense is being committed in his presence. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
Information received from a third party, even a fellow law-enforcement officer, is an inadequate substitute for the arresting officer's own observations and perceptions. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
Misdemeanor committed, but not in officer's presence. - If the officer has information that a misdemeanor has been committed, but not in his presence, he must obtain a warrant and make the arrest pursuant to that warrant. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
Suspicion of narcotics possession and distribution gives rise to inference of dangerousness. - Suspicion of narcotics possession and distribution is a circumstance which, standing alone, gives rise to an inference of dangerousness, so as to confer authority to conduct a pat-down search. Williams v. Commonwealth, 4 Va. App. 53, 354 S.E.2d 79 (1987).
Commonwealth's interlocutory appeal not allowed based on this section. - Where the trial court's suppressing order was not based on a violation of a provision of the Virginia or federal Constitutions, but was based on this section, which limits the authority of a police officer to stop, question and search a suspicious person, the interlocutory appeal by the Commonwealth from the order suppressing evidence of cocaine found on the defendant when law-enforcement officers searched him was not one which the Commonwealth is permitted to appeal. Commonwealth v. Brown, 8 Va. App. 41, 378 S.E.2d 623 (1989).
Third sentence of section applies to defendant charged with offense in another jurisdiction. - Where defendant is charged with an offense in another jurisdiction, it is the third sentence of this section, and not the first sentence, by which the lawfulness of defendant's arrest is to be judged. Grajales v. Commonwealth, No. 0508-85 (Ct. of Appeals Nov. 12, 1986).
Warrantless arrest of a person charged with a crime in another jurisdiction. - Three conditions are necessary to empower a police officer to effectuate a warrantless arrest of a person charged with a crime in another jurisdiction: an officer must be given the name or a description of the person wanted, a description of the crime, and an allegation that such person is likely to flee the Commonwealth. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).
A reasonably accurate description should address gender, race, age, height, weight, hair color, and any unique characteristics. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).
Where radio transmission informed a deputy sheriff that the driver of a suspicious truck was wanted, that the deputy should use caution, and that the driver was a "Rambo-type" suspect, this transmission did not meet the statutory requirements authorizing a warrantless arrest of a person charged with a crime in another jurisdiction. Foote v. Commonwealth, 11 Va. App. 61, 396 S.E.2d 851 (1990).
Applied in Lowe v. Commonwealth, 218 Va. 670 , 239 S.E.2d 112 (1977); Thompson v. Commonwealth, 10 Va. App. 117, 390 S.E.2d 198 (1990); Poindexter v. Commonwealth, 16 Va. App. 730, 432 S.E.2d 527 (1993); Harris v. Commonwealth, 39 Va. App. 670, 576 S.E.2d 228, 2003 Va. App. LEXIS 39 (2003); United States v. Day, 591 F.3d 679, 2010 U.S. App. LEXIS 429 (4th Cir. 2010).
II. ILLUSTRATIVE CASES.
Probable cause to make warrantless arrest. - The events witnessed by the police officer during his surveillance provided him with a suspicion of criminal activity, but not probable cause, where he did not observe suspected narcotics change hands, nor did he observe the exchange of any object which in his experience suggested narcotics, and there was no evidence that the area under surveillance was noted for heroin transactions or that the transactions observed were furtive in nature. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).
Where the defendant and codefendant were stopped and patted down for weapons but not subjected to further investigation until another police officer arrived, the initial stop did not constitute an arrest; the defendant was not actually arrested until the other officer arrived on the scene and found a substance he suspected was heroin in the pocket of codefendant, and the discovery of this substance, along with the other officer's prior observations, provided probable cause to arrest defendant. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).
Arrest was supported by probable cause. - Where police articulated facts supporting reasonable suspicion that appellant was the person they sought for leaving the scene of an accident without filing a report, and it was appellant's action that produced in plain view the cocaine that gave them probable cause to arrest him, notwithstanding that the police described their actions as an investigatory detention, not an arrest, arrest of the appellant which was supported by probable cause occurred when the cocaine was discovered as a result of Terry stop and appellant was placed in handcuffs, and police did not violate this section which prohibits warrantless arrest for a misdemeanor. Mazza v. Commonwealth, 16 Va. App. 907, 434 S.E.2d 339 (1993).
Officer had probable cause to arrest defendant for driving under the influence of alcohol, in violation of § 18.2-266 , because a reasonable person could have properly inferred from the totality of the circumstances that defendant had drunk enough alcohol, at the time of the accident, to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior, since: (1) the officer knew that defendant had been in a bar until nearly closing time; (2) the officer knew that defendant struck the victim while driving his motorcycle; (3) the officer observed at the hospital that defendant had a quite strong odor of alcohol about his person; and (4) the officer saw that, although defendant's only apparent injuries were scrapes and bruises, defendant's speech was slurred. Bristol v. Commonwealth, 47 Va. App. 584, 625 S.E.2d 676, 2006 Va. App. LEXIS 53 (2006), reversed, remanded, 272 Va. 568 , 636 S.E.2d 460 (2006), as to validity of arrest.
Because a police officer heard a judge orally order that a capias be issued for defendant's failure to appear, the officer had sufficient probable cause and authority to arrest defendant under § 19.2-81 . Jones v. Commonwealth,, 2007 Va. App. LEXIS 29 (Jan. 30, 2007).
Because defendant's post-entry assaults on police officers were outside the scope of the exclusionary rule, and because police officers had probable cause under § 19.2-81 to make a warrantless arrest for public intoxication, the Fourth Amendment was irrelevant; since defendant had no right to resist the arrest, defendant's motion to suppress was properly denied and defendant was properly convicted of assault and battery on a police officer and obstruction of justice. Messier v. Commonwealth,, 2007 Va. App. LEXIS 201 (May 15, 2007).
Trial court did not err in denying defendant's motion to suppress cocaine the police discovered in defendant's vehicle incident to an arrest on a separate charge because the police had probable cause to arrest defendant since a reasonable officer could conclude that there was probable cause to believe that defendant committed the crime of possession of cocaine, either solely or jointly; it was an entirely reasonable inference from the facts that either defendant or a passenger had knowledge of, and exercised dominion and control over, the cocaine. Jones v. Commonwealth,, 2011 Va. App. LEXIS 98 (Mar. 22, 2011).
Where, at night, an officer observed a van operating in a grossly reckless manner under circumstances suggesting that its occupants were engaged in "possibly criminal behavior" or that they were fleeing from the scene of a crime; the situation appeared sufficiently aggravated that he felt it necessary to radio for assistance; after attempting unsuccessfully to elude arrest, the driver brought the van to a halt in an unlit area; with "no rear windows or side windows" in the van, the actions of the occupants were hidden from the officer; none of the occupants could produce any personal identification or any registration for the van; and the officer stated that he was concerned about the occupants possibly having weapons to make an assault on him regarding the traffic stop, the intrusion that occurred when the officer ordered the defendant from the van and detained him until he was frisked by another officer was reasonably warranted. Lansdown v. Commonwealth, 226 Va. 204 , 308 S.E.2d 106 (1983), cert. denied, 465 U.S. 1104, 104 S. Ct. 1604, 80 L. Ed. 2d 134 (1984).
Arrest on reasonable belief is valid. - In United States v. Gearhart, 326 F.2d 412 (4th Cir. 1964)the court said that an arrest was in order, because, in the aggregate, the sheriff had "reasonable grounds to believe" that a crime had been committed by the defendant,.
A police officer may arrest, without a warrant, one whom he has reasonable grounds or probable cause to suspect of having committed a felony even though the crime is not committed in his presence. Crowder v. Commonwealth, 213 Va. 151 , 191 S.E.2d 239 (1972).
Protective search held reasonable. - Police officer had an articulable and objectively reasonable basis for suspecting that the defendant was potentially dangerous, where the hour was late and the area was rural, the police had been called to the scene to investigate a possible break-in to the motel room in which the defendant was found, the defendant appeared nervous, highly upset, and under the influence of some intoxicant, twice he gave false answers to the police about to whom the rooms were registered, chairs were piled against the door to block entry, and when asked for his identification, the defendant quickly retreated into the room without responding. Based on the totality of the circumstances, the officer could reasonably suspect that the defendant was the reported burglar who might be armed and potentially dangerous. Accordingly, he was justified in conducting a pat-down of the defendant's outer clothing and a protective search of the area within the defendant's immediate control, as well as monitoring the defendant's movements during the course of the stop. Therefore, his warrantless entry into the motel room was reasonable. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).
Warrantless arrests at hospital of any person involved in accident. - This section authorizes law-enforcement officers to make warrantless arrests at a hospital of any person involved in a motor vehicle accident even though the crime was not committed in the officer's presence, provided the officer is in uniform or displaying a badge of office and has reasonable grounds to believe based upon personal investigation that a crime arising from the accident was committed by that person. Paige v. City of Lynchburg, 10 Va. App. 162, 390 S.E.2d 524 (1990).
Warrantless arrest of defendant in the hospital at 4:35 p.m. was invalid, where the motor vehicle accident occurred at 3:00 p.m. The officer had no authority without a warrant to arrest the accused except at the scene of the motor vehicle accident for driving under the influence and after his driver's license had been revoked, offenses which were committed not in his presence. Thomas v. Town of Marion, 226 Va. 251 , 308 S.E.2d 120 (1983).
After-the-fact appraisal does not lessen cause to stop, question, and search. - An officer's concessions on the witness stand that he had no reason to stop the vehicle other than the actions of the vehicle itself and that the defendant individually did nothing to indicate he possessed a concealed weapon, posed any danger to the officer, or had committed any crime, obviously were the result of an after-the-fact appraisal of the situation. They neither lessen the fact that he did have ample cause to stop the vehicle nor take away from his on-the-scene concern for his safety and his fear that the vehicle's occupants might have weapons to make an assault on him. In determining whether to detain the defendant, the officer was entitled to rely upon the totality of the circumstances - the whole picture. Lansdown v. Commonwealth, 226 Va. 204 , 308 S.E.2d 106 (1983), cert. denied, 465 U.S. 1104, 104 S. Ct. 1604, 80 L. Ed. 2d 134 (1984).
Defendant's identification. - Police officers were authorized to seek defendant's identification, where they saw him and others engaged in a drug transaction and stopped the vehicle he was driving. Smith v. Commonwealth, No. 0138-89-2 (Ct. of Appeals Oct. 16, 1990).
Suppression of evidence not appropriate for noncompliance with section. - Where officers who arrested defendant were wearing plain clothes at the time they placed defendant under arrest, and in addition, the trial court specifically found that the officers had no chance to display their badges prior to arresting defendant, suppression of evidence was not the appropriate remedy for the officers' failure to comply with this section. Graves v. Commonwealth, No. 1113-88-2 (Ct. of Appeals July 17, 1990).
Although defendant's warrantless arrest for littering violated this section because the misdemeanor offense was not committed in the presence of the arresting officer, such a violation of state law did not warrant application of the exclusionary rule to suppress the cocaine discovered in the search. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
Suppression of evidence. - Not every violation of this section necessarily results in the exclusion of evidence; where an illegal arrest under this section does not violate any constitutional rights, the defendant is not entitled to have evidence seized pursuant to that arrest excluded. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
The exclusionary rule adopted in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), does not operate to exclude evidence where the defendant claims that rights provided to him under state statute have been violated, but fails to allege a deprivation of constitutional rights. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
In the absence of any deprivation of constitutional rights, an arrest in violation of state statute does not require exclusion of any evidence obtained as a result of the arrest. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
Under Virginia law, no suppression of evidence is required when evidence is obtained in violation of state law but no constitutional violation has occurred. Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff'd, 244 Va. 218 , 420 S.E.2d 713 (1992).
A violation of this section does not require the exclusion of evidence absent a constitutional violation. Hailey v. Commonwealth, No. 0627-99-3, 2000 Va. App. LEXIS 593 (Ct. of Appeals Aug. 15, 2000).
Cocaine found in defendant's vehicle was admissible because a police officer had probable cause under subsection B of § 19.2-81 to arrest defendant for public intoxication, in violation of § 18.2-388 , as the officer testified that as the officer approached defendant's parked vehicle and spoke with defendant there was a very strong odor of alcohol coming from defendant's breath, defendant's speech was slurred, and defendant's eyes were very bloodshot. Furthermore, the officer's search of defendant's vehicle was a proper search incident to arrest under then existing law, as defendant was in custody and an occupant of the vehicle. McGhee v. Commonwealth, 280 Va. 620 , 701 S.E.2d 58, 2010 Va. LEXIS 260 (2010).
Section 52-21 , relating to procedure after arrest without warrant, held not applicable where the record showed that the accident occurred in Stafford County and defendant was taken directly from the scene to a Fredericksburg hospital and arrested at the hospital and upon his release, officer took the accused to a Stafford County magistrate and obtained a warrant since the warrantless arrest at the hospital following the accident was made pursuant to this section. Walter v. Commonwealth, 8 Va. App. 485, 382 S.E.2d 484 (1989).
The defendant's warrantless arrest for driving under the influence of alcohol was unlawful where the police officer had not observed the defendant driving, and the police officer's only source of knowledge that the defendant drove in that city was the radio call for assistance. Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987).
Warrantless arrest was lawful where defendant was asked whether he would accompany police officer in the police car to speak to another officer and he agreed and was arrested by the other officer after the other officer identified defendant as the person he had seen trespassing. James v. Commonwealth, 8 Va. App. 98, 379 S.E.2d 378 (1989).
Petit larceny is a continuing offense, and where two police officers observed the defendant and the radio in question in his car, a misdemeanor was being committed in their presence which permitted them to arrest the defendant without a warrant pursuant to this section. Ford v. Commonwealth, No. 0885-89-4 (Ct. of Appeals Nov. 6, 1990).
Warrantless arrest invalid. - Officer made an invalid warrantless arrest for a misdemeanor not committed in his presence as the single-vehicle accident occurred on or beside a private road in a gated, guarded residential complex; thus, the exceptions to the warrant requirement in § 19.2-81 did not apply. Therefore, the implied consent law did not apply to permit the certificate of analysis of defendant's breath test to be admitted into evidence. Roseborough v. Commonwealth, 281 Va. 233 , 704 S.E.2d 414, 2011 Va. LEXIS 13 (2011).
"Accident" found. - Where defendant's car came in contact with sign 20 feet from the hard surface, which resulted from her admitted failure to pay attention, this event was an accident within the meaning of the statute. Leveroni v. County of Arlington, 18 Va. App. 626, 445 S.E.2d 723 (1994).
CIRCUIT COURT OPINIONS
Authority to arrest. - Defendant's motion to dismiss was granted because, while a county police officer had authority to arrest him as a private citizen for an alleged felony hit and run that occurred in the county, the county police lacked authority to arrest defendant where no emergency existed in the city of which they were on notice that required their presence, the city police had not requested their assistance, and neither a mutual aid agreement nor an executive agreement gave them authority to arrest defendant. Commonwealth v. Valdez, 87 Va. Cir. 386, 2014 Va. Cir. LEXIS 29 (Charlottesville Jan. 28, 2014).
In a case in which a Chesapeake detective arrested defendant for actions that occurred in Norfolk, the circuit court, in the absence of express statutory directive, declined to restrain the officer in a manner inapplicable to a private citizen engaging in the same conduct. Commonwealth v. Creekmore, 94 Va. Cir. 19, 2016 Va. Cir. LEXIS 93 (Chesapeake July 7, 2016).
Lack of signature on warrant. - Defendant was not entitled to have evidence seized during an arrest and statements made in course of and following the arrest suppressed because the lack of a magistrate's signature on an otherwise valid warrant did not render defendant's arrest unlawful under § 19.2-81 , where the facts otherwise failed to set forth a violation of defendant's rights under the Fourth Amendment. Commonwealth v. Osborne, 72 Va. Cir. 601, 2005 Va. Cir. LEXIS 376 (Scott County 2005).
"In the presence" requirement. - Court rejected "police team" argument to satisfy the "in the presence" requirement for misdemeanor arrests under § 19.2-81 . Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).
Trial court did not violate petitioner's Fourth Amendment rights by denying his motion to suppress, despite his claim that the police officers lacked probable cause to arrest him for being drunk in public where he was inside his parents' home when he was arrested, because there was evidence that petitioner was extremely intoxicated and had been in public when he left his home where his wife's dead body was found and went to his parents' home. The officers' failure to observe petitioner's intoxication "in public," prior to arresting him, may have constituted a violation of § 19.2-81 , which authorized a warrantless arrest of any person who committed a crime in the presence of an officer, but it did not strip the officers of probable cause to arrest him and did not warrant exclusion of evidence or statements obtained as a result of the arrest. Hudson v. Dir. of the Dep't of Corr., 67 Va. Cir. 319, 2005 Va. Cir. LEXIS 147 (Clarke County May 16, 2005).
Park ranger's arrest of defendant not improper. - Park rangers were permitted to exercise the powers of a conservator of the peace when engaged in the performance of their official duties; as a conservator of the peace, a ranger was permitted to make an arrest for a misdemeanor committed in his presence. A ranger's arrest of defendant for driving under the influence based on the ranger's observations of defendant was proper. Commonwealth v. Stickle, 72 Va. Cir. 494, 2007 Va. Cir. LEXIS 154 (Loudoun County 2007).
Objective standard. - Correct inquiry is whether, based on an objective standard, a deputy had sufficient information to support probable cause for an arrest for a crime. Commonwealth v. May, 63 Va. Cir. 474, 2003 Va. Cir. LEXIS 339 (Loudoun County 2003).
While defendant argued that the arrest was illegal because a deputy did not have probable cause to arrest defendant for the felony of grand larceny for which defendant was subsequently charged, the deputy did have probable cause to believe that defendant committed the crime of petit larceny in the deputy's presence because: (1) the victim of the grand larceny told the deputy that the victim's purse had been stolen and described two individuals that the victim suspected of taking the purse; (2) because the deputy had no information that the purse had been recovered, the deputy had reason to believe that the asportation of the stolen purse continued; (3) the deputy had reason to believe that the purse the deputy saw near defendant was the one that the victim reported as being stolen; and (4) because the purse had some value, it was the subject of, at least, petit larceny. Commonwealth v. May, 63 Va. Cir. 474, 2003 Va. Cir. LEXIS 339 (Loudoun County 2003).
Court stated that §§ 18.2-266 , 19.2-81 , and 46.2-100 , read together, require that an individual drive or operate, or be in actual physical control of a motor vehicle in the presence of the arresting officer for an arrest to be valid. Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).
Information obtained from National Criminal Information Center sufficient to support arrest under a warrant from a foreign jurisdiction. - Determination that there was an outstanding warrant for defendant through a check using the National Criminal Information Center enabled officers to arrest defendant despite the fact that the officers did not have an actual copy of the warrant. Commonwealth v. Makeen, 62 Va. Cir. 269, 2003 Va. Cir. LEXIS 293 (Norfolk 2003).
Defendant's refusal to submit not unlawful in absence of valid arrest. - Court found the driving under the influence (DUI) defendant was improperly charged under § 18.2-268 [see now § 18.2-268 .1 et seq.] with refusing to submit to a breath or blood test since the defendant was not legally under arrest for DUI, as the defendant's arrest was in violation of former § 19.2-81 ; therefore, when the defendant was read his implied consent rights under former § 18.2-268 (requiring the defendant to have been lawfully arrested in order to be subject to former § 18.2-268's mandate to submit) the defendant's refusal to submit did not constitute a violation of former § 18.2-268, and his refusal to submit was not admissible since the test itself, even if he had consented to the test, was inadmissible. Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).
Arrest was supported by probable cause. - Officer had probable cause to arrest defendant under this section where he had reasonably trustworthy information about her erratic driving, including her rear-ending another vehicle and attempting to leave the scene, the officer detected an odor of alcohol emanating from defendant, defendant admitted having consumed a few beers, and the officer observed defendant's slurred speech, her dazed demeanor, and her strange conduct. Commonwealth v. Long, 88 Va. Cir. 335, 2014 Va. Cir. LEXIS 24 (Roanoke County June 18, 2014).
OPINIONS OF THE ATTORNEY GENERAL
Execution of misdemeanor capias not in officer's possession. - A law-enforcement officer has the authority to execute a misdemeanor capias, not in his possession, based upon an official dispatch from another county, provided the officer informs the accused of the existence of, and the charges contained in, the capias and delivers the capias to the accused as soon thereafter as is practicable. See opinion of Attorney General to Mr. George S. Webb, III, Commonwealth's Attorney for Madison County, 05-017 (4/26/05).
Law-enforcement officers may inquire into immigration status. - Virginia law-enforcement officers, including conservation officers, may inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 10-047, 2010 Va. AG LEXIS 37 (7/30/10).
§ 19.2-81.1. Arrest without warrant by correctional officers in certain cases.
Any correctional officer, as defined in § 53.1-1 , may arrest, in the same manner as provided in § 19.2-81 , persons for crimes involving:
- The escape of an inmate from a correctional institution, as defined in § 53.1-1 ;
- Assisting an inmate to escape from a correctional institution, as defined in § 53.1-1 ;
- The delivery of contraband to an inmate in violation of § 18.2-474 or § 18.2-474.1 ; and
-
Any other criminal offense which may contribute to the disruption of the safety, welfare, or security of the population of a correctional institution.
(1976, c. 752.)
§ 19.2-81.2. Power of correctional officers and designated noncustodial employees to detain.
- A correctional officer, as defined in § 53.1-1 , who has completed the minimum training standards established by the Department of Criminal Justice Services, or other noncustodial employee of the Department of Corrections who has been designated to carry a weapon by the Director of the Department of Corrections pursuant to § 53.1-29 of the Code and who has completed the basic course in detention training as approved by the Department of Criminal Justice Services, may, while on duty in or on the grounds of a correctional institution, or with custody of prisoners without the confines of a correctional institution, detain any person whom he has reasonable suspicion to believe has committed a violation of §§ 18.2-473 through 18.2-475 , or of aiding or abetting a prisoner in violating the provisions of § 53.1-203 . Such detention shall be for the purpose of summoning a law-enforcement officer in order that the law-enforcement officer can arrest the person who is alleged to have violated any of the above sections.
- Any employee of the Department of Corrections having the authority to detain any person pursuant to subsection A hereof shall not be held civilly liable for unlawful detention, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so detained, whether such detention takes place within or without the grounds of a correctional institution, provided that, in causing the detention of such person, the employee had at the time of the detention reasonable suspicion to believe that the person committed a violation for which the detention was undertaken.
-
It is the purpose and intent of this section to ensure that the safety, stability, welfare and security of correctional institutions be preserved insofar as possible.
(1976, c. 740; 1979, c. 642; 1984, cc. 720, 779.)
The number of this section was assigned by the Virginia Code Commission, the number in the 1976 act having been 19.2-81.1 .
§ 19.2-81.3. Arrest without a warrant authorized in cases of assault and battery against a family or household member and stalking and for violations of protective orders; procedure, etc.
- Any law-enforcement officer with the powers of arrest may arrest without a warrant for an alleged violation of § 18.2-57.2 , 18.2-60.4 , or 16.1-253.2 regardless of whether such violation was committed in his presence, if such arrest is based on probable cause or upon personal observations or the reasonable complaint of a person who observed the alleged offense or upon personal investigation.
- A law-enforcement officer having probable cause to believe that a violation of § 18.2-57.2 or 16.1-253.2 has occurred shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of family and household members, (iii) prior complaints of family abuse by the allegedly abusing person involving the family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
- A law-enforcement officer having probable cause to believe that a violation of § 18.2-60.4 has occurred that involves physical aggression shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of the person to whom the protective order was issued and the person's family and household members, (iii) prior acts of violence, force, or threat, as defined in § 19.2-152.7:1 , by the person against whom the protective order was issued against the person protected by the order or the protected person's family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
- Regardless of whether an arrest is made, the officer shall file a written report with his department, which shall state whether any arrests were made, and if so, the number of arrests, specifically including any incident in which he has probable cause to believe family abuse has occurred, and, where required, including a complete statement in writing that there are special circumstances that would dictate a course of action other than an arrest. The officer shall provide the allegedly abused person or the person protected by an order issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 , both orally and in writing, information regarding the legal and community resources available to the allegedly abused person or person protected by the order. Upon request of the allegedly abused person or person protected by the order, the department shall make a summary of the report available to the allegedly abused person or person protected by the order.
- In every case in which a law-enforcement officer makes an arrest under this section for a violation of § 18.2-57.2 , he shall petition for an emergency protective order as authorized in § 16.1-253.4 when the person arrested and taken into custody is brought before the magistrate, except if the person arrested is a minor, a petition for an emergency protective order shall not be required. Regardless of whether an arrest is made, if the officer has probable cause to believe that a danger of acts of family abuse exists, the law-enforcement officer shall seek an emergency protective order under § 16.1-253.4, except if the suspected abuser is a minor, a petition for an emergency protective order shall not be required.
- A law-enforcement officer investigating any complaint of family abuse, including but not limited to assault and battery against a family or household member shall, upon request, transport, or arrange for the transportation of an abused person to a hospital or safe shelter, or to appear before a magistrate. Any local law-enforcement agency may adopt a policy requiring an officer to transport or arrange for transportation of an abused person as provided in this subsection.
- The definition of "family or household member" in § 16.1-228 applies to this section.
- As used in this section, "law-enforcement officer" means (i) any full-time or part-time employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof, and any campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth; (ii) any member of an auxiliary police force established pursuant to § 15.2-1731 ; and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 . Part-time employees are compensated officers who are not full-time employees as defined by the employing police department or sheriff's office. (1991, c. 715; 1992, c. 886; 1995, cc. 413, 433; 1996, c. 866; 1997, c. 603; 1998, c. 569; 1999, cc. 697, 721, 807; 2002, cc. 810, 818; 2004, c. 1016; 2008, cc. 551, 691; 2011, cc. 445, 480; 2012, cc. 776, 827; 2014, cc. 779, 797.)
Cross references. - As to arrest policies and procedures in domestic violence and family abuse cases, see § 9.1-1300 .
Editor's note. - At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection H to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.
The 1999 amendments. - The 1999 amendments by cc. 697 and 721, are identical, and rewrote subsection F, which formerly read: "As used in this section, "family or household member" means (i) the person's spouse, whether or not he or she resides in the same home with the person; (ii) the person's former spouse, whether or not he or she resides in the same home with the person; (iii) the person's parents, stepparents, children, stepchildren, brothers and sisters, grandparents and grandchildren who reside in the same home with the person; (iv) the person's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person; (v) any person who has a child in common with the defendant, whether or not the person and that person have been married or have resided together at any time; or (vi) any individual who cohabits or who, within the previous twelve months, cohabited with the person, and any children of either of them then residing in the same home with the defendant."
The 1999 amendment by c. 807, in subsection D, inserted "except if the person arrested is a minor, a petition for an emergency protective order shall not be required" in the first sentence, and added "except if the suspected abuser is a minor, a petition for an emergency protective order shall not be required" in the second sentence.
The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and rewrote subsection C; and substituted "member shall" for "member may" in the first sentence in subsection E.
The 2004 amendments. - The 2004 amendment by c. 1016, in subsection B, substituted "predominant" for "primary" in the first sentence and added the last sentence.
The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted one of the section symbols preceding "18.2-87.2" in subsection A; and substituted "a hospital or safe shelter, or to appear before a magistrate" for "a hospital, safe shelter, or magistrate" in subsection E.
The 2011 amendments. - The 2011 amendments by cc. 245 and 480 are identical, and added present subsection C and redesignated former subsections C through G as subsections D through H; in subsection D, inserted "or the person protected by an order issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 " and "or person protected by the order" in the second sentence, and inserted "or person protected by the order" two times in the last sentence; and inserted "for a violation of § 18.2-57.2 ," in the first sentence of subsection E.
The 2012 amendments. - The 2012 amendment by c. 776 substituted "with the powers of arrest under subsection A of § 19.2-81 " for "as defined in § 19.2-81 " and inserted "and any campus police officers appointed under Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection H.
The 2012 amendment by c. 827, effective April 18, 2012, deleted "subsection B of" preceding " § 15.2-1731 " at the end of H (ii).
The 2014 amendments. - The 2014 amendments by cc. 779 and 797 are identical, and deleted "under subsection A of § 19.2-81 " following "powers of arrest" in subsection A; and in subsection H inserted "and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 " and made stylistic changes.
Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).
Research References. - Virginia Forms (Matthew Bender). No. 5-155. Petition for Protective Order--Family Abuse, et seq.; No. 9-203. Emergency Protective Order--Family Abuse; No. 9-208. Protective Order--Family Abuse (District Court).
Michie's Jurisprudence. - For related discussion, see 9B M.J. Husband and Wife, § 87.
CASE NOTES
Applicability. - Virginia statutory law provided support for officers' actions when they entered a bathroom in plaintiff's home because the officers' actions were justified by the exigent circumstances in responding to a domestic situation where there may have been a gun in the residence. Trull v. Smolka,, 2011 U.S. App. LEXIS 3404 (4th Cir. Feb. 18, 2011), cert. denied, 2011 U.S. LEXIS 6760, 132 S. Ct. 106, 181 L. Ed. 2d 33 (U.S. 2011).
Probable cause. - Where an officer arrested an arrestee after questioning the arrestee's daughter about alleged domestic violence, summary judgment was inappropriate as to the false arrest claim because (1) the application of de minimus force by a parent did not automatically create probable cause for arrest under Virginia law, and (2) the arrestee pled a plausible claim that the officer lacked probable cause to arrest the arrestee. Pleasants v. Town of Louisa,, 2013 U.S. App. LEXIS 9267 (4th Cir. May 7, 2013).
OPINIONS OF THE ATTORNEY GENERAL
Attorney General declined to render opinion on matter delegated to Department of Criminal Justice Services. - The Attorney General declined to render an opinion on what constitutes "special circumstances which would dictate a course of action other than an arrest" under subsection B as the Department of Criminal Justice Services was the appropriate agency to make such a determination. See opinion of Attorney General to The Honorable Matthew J. Britton, Commonwealth's Attorney for King George County, 01-001 (6/27/01).
§ 19.2-81.4.
Repealed by Acts 2008, cc. 600 and 771, cl. 2.
Cross references. - For current provisions as to arrest policies and procedures in domestic violence and family abuse cases, see § 9.1-1300 .
§ 19.2-81.5. Cooperation with a law-enforcement officer.
Upon receipt of a request and documentation of an indictment or issuance of a warrant from a law-enforcement agency, any public agency within the Commonwealth may disclose to the requesting law-enforcement agency from agency records, to the extent permitted by federal law, the address of an individual who has been indicted or for whom a warrant for arrest for a crime punishable by incarceration has been issued.
(1998, c. 436.)
§ 19.2-81.6. Authority of law-enforcement officers to arrest illegal aliens.
All law-enforcement officers enumerated in § 19.2-81 shall have the authority to enforce immigration laws of the United States, pursuant to the provisions of this section. Any law-enforcement officer enumerated in § 19.2-81 may, in the course of acting upon reasonable suspicion that an individual has committed or is committing a crime, arrest the individual without a warrant upon receiving confirmation from the Bureau of Immigration and Customs Enforcement of the United States Department of Homeland Security that the individual (i) is an alien illegally present in the United States, and (ii) has previously been convicted of a felony in the United States and deported or left the United States after such conviction. Upon receiving such confirmation, the officer shall take the individual forthwith before a magistrate or other issuing authority and proceed pursuant to § 19.2-82 .
(2004, cc. 360, 412.)
OPINIONS OF THE ATTORNEY GENERAL
Virginia law-enforcement officers have authority to detain and arrest individuals who have committed violations of the laws of the United States and other states, and such authority extends to violations of federal criminal immigration law. It would not be advisable to enforce such violations outside of the scope of an agreement with federal authorities. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Member, Senate of Virginia, and The Honorable David B. Albo, Member, House of Delegates, 07-086 (10/15/07).
Law-enforcement officers may inquire into immigration status. - Virginia law-enforcement officers, including conservation officers, may inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 10-047, 2010 Va. AG LEXIS 37 (7/30/10).
Authority of state and local law-enforcement officers to arrest for immigration violations. - Prior Attorney General opinions concluding that state and local law-enforcement officers may not arrest individuals for civil violations of immigration law absent express federal authorization or direction remain valid. Virginia statutes do not preclude the implementation of agreements between the United States Attorney General and state or local law-enforcement agencies entered pursuant to 8 U.S.C. § 1357(g). See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, and the Honorable Alfonso Lopez, Member of the Virginia House of Delegates, 16-045, 2019 Va. AG LEXIS 9 (4/12/19).
§ 19.2-82. Procedure upon arrest without warrant.
- A person arrested without a warrant shall be brought forthwith before a magistrate or other issuing authority having jurisdiction who shall proceed to examine the officer making the arrest under oath. If the magistrate or other issuing authority having jurisdiction has lawful probable cause upon which to believe that a criminal offense has been committed, and that the person arrested has committed such offense, he shall issue either a warrant under the provisions of § 19.2-72 or a summons under the provisions of § 19.2-73 . As used in this section the term "brought before a magistrate or other issuing authority having jurisdiction" shall include a personal appearance before such authority or any two-way electronic video and audio communication meeting the requirements of § 19.2-3.1 , in order that the accused and the arresting officer may simultaneously see and speak to such magistrate or authority. If electronic means are used, any documents filed may be transmitted in accordance with § 19.2-3.1 . If a warrant is issued the case shall thereafter be disposed of under the provisions of §§ 19.2-183 through 19.2-190 , if the issuing officer is a judge; under the provisions of §§ 19.2-119 through 19.2-134 , if the issuing officer is a magistrate or other issuing officer having jurisdiction. If such warrant or summons is not issued, the person so arrested shall be released.
- A warrant may be issued pursuant to this section, where the person has been arrested in accordance with § 19.2-81.6 , and the magistrate or other issuing authority examines the officer making the arrest under oath, and finds lawful probable cause to believe the arrested individual meets the conditions of clauses (i) and (ii) of § 19.2-81.6 . If such warrant is issued, it shall recite § 19.2-81.6 and the applicable violation of federal criminal law previously confirmed with Immigration and Customs Enforcement. Upon the person being taken into federal custody, such state warrant shall be dismissed. Any warrant issued under this subsection shall expire within 72 hours, or when the person is taken into federal custody, whichever occurs first. Recurrent applications for a warrant under this subsection shall not be permitted within a six-month period except where confirmation has been received from Immigration and Customs Enforcement that the arrested person will be taken into federal custody. (Code 1950, § 19.1-100.1; 1968, c. 639; 1975, c. 495; 1981, c. 382; 1983, c. 564; 1984, c. 766; 1991, c. 41; 2002, c. 310; 2004, cc. 360, 412; 2009, c. 669.)
The 2002 amendments. - The 2002 amendment by c. 310 deleted "however, this section shall not bar a judge of a district court from proceeding in accord with the provisions of § 16.1-129.1" at the end of the last sentence of the last paragraph.
The 2004 amendments. - The 2004 amendments by cc. 360 and 412 are identical, and inserted the A designation at the beginning of the first paragraph and added subsection B.
The 2009 amendments. - The 2009 amendment by c. 669, in subsection B, deleted "the Bureau" preceding "Immigration and Customs" in the second sentence and added "except where confirmation has been received from Immigration and Customs Enforcement that the arrested person will be taken into federal custody" in the last sentence.
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 8, 12; 5B M.J. Criminal Procedure, §§ 13, 17, 19, 21; 19 M.J. Warrants, § 2.
CASE NOTES
Term "forthwith," as used in this section, is synonymous with standard used in § 19.2-80 , and the same remedies for a violation of § 19.2-80 should apply to a violation of this section. Slade v. Commonwealth, No. 0786-85 (Ct. of Appeals Feb. 4, 1987).
Failure promptly to present defendant as required by this section is a mere procedural violation where it involves no constitutional error. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).
Delay in presentment violates constitution only if exculpatory evidence thereby lost. - While, under Virginia law, an arresting officer must take an accused before a judicial officer with reasonable promptness and without unreasonable delay, violation of this requirement reaches constitutional dimension only if it results in the defendant's loss of exculpatory evidence. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).
And evidence need not be excluded unless loss of exculpatory evidence results. - A violation of the prompt presentment provision of this section does not require the exclusion of evidence unless the violation caused a loss of exculpatory evidence. Jumper v. Commonwealth, No. 0497-85 (Ct. of Appeals Oct. 10, 1986).
Failure to have accused appear before magistrate. - Where the officer who had arrested the defendant for driving while intoxicated had appeared before a magistrate and obtained a warrant for the defendant's arrest without the defendant being present, it was undeniable that the probable cause determination did not adhere to the procedure set forth in this section but this violation alone did not constitute reversible error where it did not infringe any constitutional right of the defendant. Jones v. Town of Marion, 28 Va. App. 791, 508 S.E.2d 921 (1999), aff'd, 259 Va. 7 , 524 S.E.2d 866 (2000).
Effect of delay in taking defendant before magistrate. - Where defendant was legally seized and constitutionally detained, delay in taking him before a magistrate did not mean that the probable cause to hold him for the crimes stated in the warrants somehow evaporated, so as to require exclusion of the evidence developed during his detention. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).
In the Commonwealth, not every violation of the requirement that a suspect be taken before a magistrate without unnecessary delay results in the exclusion of evidence. Horne v. Commonwealth, 230 Va. 512 , 339 S.E.2d 186 (1986).
Confessions held not excludable despite unreasonable delay. - Assuming, without deciding, that the arresting officers failed to present defendant to the magistrate before an unreasonable period of time had elapsed, thereby violating this section, this violation does not result in exclusion of the confession obtained from him in the interim interrogation. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).
Warrant issued after arrest irrelevant in false arrest action. - In an action under 42 U.S.C. § 1983 alleging that defendant officer denied plaintiff due process by subjecting him to a false arrest for being drunk in public, the arrest warrant issued by the magistrate subsequent to the arrest did not establish as a matter of law that probable cause existed for the defendant to arrest the plaintiff. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).
When a defendant officer in a civil action relies upon probable cause as a defense to a charge of illegal arrest under 42 U.S.C. § 1983, he must establish that probable cause existed at the time the arrest was made. A warrant, subsequently issued by a magistrate, is irrelevant to the determination of whether the officer arresting an individual without a warrant had probable cause to arrest. Robinson v. Goff, 517 F. Supp. 350 (W.D. Va. 1981).
Search incident to illegal arrest. - Warrantless arrest for driving with a suspended license was reasonable under the Fourth Amendment, even if it was not permitted under § 19.2-74 . Therefore, the crack cocaine and cash that the arrestee was carrying and that was discovered in a search incidental to the arrest did not need to be suppressed. Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559, 2008 U.S. LEXIS 3674 (2008).
CIRCUIT COURT OPINIONS
Delay. - Even assuming that the delay in taking defendant to the magistrate was unnecessary, there was only a procedural violation that did not amount to a constitutional error and, suppression of evidence and statements was not warranted as a result. Commonwealth v. Arava, 56 Va. Cir. 240, 2001 Va. Cir. LEXIS 133 (Arlington County 2001).
Five hour and 47 minute delay in presenting defendant to a magistrate did not constitute unnecessary delay proscribed by this section because the bulk of the delay was due to defendant's medical treatment by emergency personnel at the scene and at a hospital, caused by defendant's strange and erratic behavior. Commonwealth v. Long, 88 Va. Cir. 335, 2014 Va. Cir. LEXIS 24 (Roanoke County June 18, 2014).
No cautionary instruction necessary. - Code does not require the magistrate to give any particularly cautionary instruction to defendant during the course of a hearing under the statute. Commonwealth v. McDowell, 101 Va. Cir. 125, 2019 Va. Cir. LEXIS 14 (Norfolk Jan. 29, 2019).
Motion to supress denied. - It was proper for the detective to summarize the evidence of probable cause to the magistrate with defendant present, and although not required by statute, the magistrate reminded defendant that anything he said in response could be used against him, and thus his statement was not obtained in violation of his rights and his motion to suppress was denied. Commonwealth v. McDowell, 101 Va. Cir. 125, 2019 Va. Cir. LEXIS 14 (Norfolk Jan. 29, 2019).
OPINIONS OF THE ATTORNEY GENERAL
Virginia law-enforcement officers have authority to detain and arrest individuals who have committed violations of the laws of the United States and other states, and such authority extends to violations of federal criminal immigration law. It would not be advisable to enforce such violations outside of the scope of an agreement with federal authorities. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Member, Senate of Virginia, and The Honorable David B. Albo, Member, House of Delegates, 07-086 (10/15/07).
Authority of state and local law-enforcement officers to arrest for immigration violations. - Prior Attorney General opinions concluding that state and local law-enforcement officers may not arrest individuals for civil violations of immigration law absent express federal authorization or direction remain valid. Virginia statutes do not preclude the implementation of agreements between the United States Attorney General and state or local law-enforcement agencies entered pursuant to 8 U.S.C. § 1357(g). See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, and the Honorable Alfonso Lopez, Member of the Virginia House of Delegates, 16-045, 2019 Va. AG LEXIS 9 (4/12/19).
§ 19.2-82.1. Giving false identity to law-enforcement officer; penalty.
Any person who falsely identifies himself to a law-enforcement officer with the intent to deceive the law-enforcement officer as to his real identity after having been lawfully detained and after being requested to identify himself by a law-enforcement officer, is guilty of a Class 1 misdemeanor.
(2006, c. 387.)
Cross references. - As to punishment for Class 1 misdemeanor, see § 18.2-11 .
Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).
CASE NOTES
Double jeopardy. - Defendant was properly convicted of felony identity theft, second offense and falsely identifying himself to a law-enforcement officer because while the statutes were similar in nature, they did not violate defendant's double jeopardy rights inasmuch as one required the use of "identification documents or identifying information," such as name and date of birth, with the intent "to avoid summons, arrest, prosecution, or to impede a criminal investigation" and the other required only the intent to deceive a law-enforcement officer as to one's "real identity" after having been detained and asked to identify oneself. Garcia v. Commonwealth, No. 0831-17-2, 2018 Va. App. LEXIS 162 (June 19, 2018).
§ 19.2-83.
Repealed by Acts 1994, c. 273.
§ 19.2-83.1. Report of arrest of school employees and adult students for certain offenses.
- Every state official or agency and every sheriff, police officer, or other local law-enforcement officer or conservator of the peace having the power to arrest for a felony, upon arresting a person who is known or discovered by the arresting official to be a full-time, part-time, permanent, or temporary teacher or other employee in any public school division in this Commonwealth for a felony or a Class 1 misdemeanor or an equivalent offense in another state shall file a report of such arrest with the division superintendent of the employing division as soon as practicable. The contents of the report required pursuant to this section shall be utilized by the local school division solely to implement the provisions of subsection B of § 22.1-296.2 and § 22.1-315.
-
Every state official or agency and every sheriff, police officer, or other local law-enforcement officer or conservator of the peace having the power to arrest for a felony, shall file a report, as soon as practicable, with the division superintendent of the school division in which the student is enrolled upon arresting a person who is known or discovered by the arresting official to be a student age 18 or older in any public school division in this Commonwealth for:
- A firearm offense pursuant to Article 4 (§ 18.2-279 et seq.), 5 (§ 18.2-288 et seq.), 6 (§ 18.2-299 et seq.), 6.1 (§ 18.2-307.1 et seq.), or 7 (§ 18.2-308.1 et seq.) of Chapter 7 of Title 18.2;
- Homicide, pursuant to Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2;
- Felonious assault and bodily wounding, pursuant to Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2;
- Criminal sexual assault, pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
- Manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances, pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
- Manufacture, sale or distribution of marijuana pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
- Arson and related crimes, pursuant to Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2;
- Burglary and related offenses, pursuant to §§ 18.2-89 through 18.2-93 ;
- Robbery pursuant to § 18.2-58 ;
- Prohibited criminal street gang activity pursuant to § 18.2-46.2 ;
- Recruitment of juveniles for criminal street gang pursuant to § 18.2-46.3 ;
- An act of violence by a mob pursuant to § 18.2-42.1 ; or
- Abduction of any person pursuant to § 18.2-47 or 18.2-48 . (1991, c. 2; 1996, cc. 958, 960; 1997, c. 721; 2001, c. 591; 2004, c. 517; 2011, cc. 384, 410; 2013, c. 746; 2014, cc. 674, 719; 2018, c. 281.)
Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."
Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."
The 2001 amendments. - The 2001 amendment by c. 591 substituted "or a Class 1 misdemeanor" for "a misdemeanor involving (i) sexual assault as established in Article 7 ( § 18.2-61 et seq.) of Chapter 4 of Title 18.2, (ii) obscenity and related offenses as established in Article 5 ( § 18.2-372 et seq.) of Chapter 8 of Title 18.2, (iii) drugs as established in Article 1 ( § 18.2-247 et seq.) of Chapter 7 of Title 18.2, (iv) moral turpitude, or (v) the physical or sexual abuse or neglect of a child."
The 2004 amendments. - The 2004 amendment by c. 517 added the subsection A designation; in subsection A, substituted "as practicable" for "as reasonably practical" at the end of the first sentence, and "subsection B of § 22.1-296.2 and § 22.1-315" for " §§ 22.1-296.2 B and 22.1-315" at the end of the last sentence; and added subsection B.
The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and, inserted "or synthetic cannabinoids" in subdivision B 6.
The 2013 amendments. - The 2013 amendment by c. 746 inserted "6.1 ( § 18.2-307.1 et seq.)," and substituted "18.2-308.1" for "18.2-308" in subdivision B 1.
The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" in subdivision B 6.
The 2018 amendments. - The 2018 amendment by c. 281 added subdivisions B 12 and B 13 and made related changes.
Michie's Jurisprudence. - For related discussion, see 16 M.J. Schools, § 14.
§ 19.2-83.2. Jail officer to ascertain citizenship of inmate.
Whenever any person is taken into custody at any jail for a felony offense, the sheriff or other officer in charge of such facility shall inquire as to whether the person (i) was born in a country other than the United States and (ii) is a citizen of a country other than the United States. The sheriff or other officer in charge of such facility shall make an immigration alien query to the Law Enforcement Support Center of the U.S. Immigration and Customs Enforcement for any person taken into custody for a felony who (i) was born in a country other than the United States and (ii) is a citizen of a country other than the United States, or for whom the answer to clause (i) or (ii) is unknown. The sheriff or other officer in charge shall communicate the results of any immigration alien query to the Local Inmate Data System of the State Compensation Board. The State Compensation Board shall communicate, on a monthly basis, the results of any immigration alien query that results in a confirmation that the person is illegally present in the United States to the Central Criminal Records Exchange of the Department of State Police in a format approved by the Exchange. The information received by the Central Criminal Records Exchange concerning the person's immigration status shall be recorded in the person's criminal history record.
(2008, cc. 180, 415; 2020, cc. 995, 996.)
Editor's note. - Acts 2008, cc. 180 and 415, cl. 2 provides: "That the State Compensation Board shall maintain in the Local Inmate Data System, and the Department of Corrections shall maintain in its offender management system, a specific data field for the entry of the response received from the Law Enforcement Support Center of the United States Immigration and Customs Enforcement pursuant to the request made in accordance with § 19.2-83.2 or 53.1-218 of the Code of Virginia for information on an inmate's immigration status."
Acts 2008, cc. 180 and 415, cl. 3 provides: "That the Department of Corrections shall confirm the validity of the social security numbers given by inmates and omit from its database those social security numbers determined to be fictitious."
The 2020 amendments. - The 2020 amendments by cc. 995 and 996 are identical, and in the first sentence, inserted "for a felony offense"; in the second sentence, substituted "U.S. Immigration and Customs Enforcement for any person taken into custody for a felony" for "United States Immigration and Customs Enforcement for any person" and "to clause (i) or (ii) is unknown" for "to (i) or (ii) is unknown" and made stylistic changes.
Chapter 7.1. Law-Enforcement Officer Conduct During an Arrest or Detention.
Sec.
§ 19.2-83.3. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Deadly force" means any force that is likely or intended to cause serious bodily injury or death.
"Deadly weapon" means any object, other than a body part or stationary object, that in the manner of its actual, attempted, or threatened use is likely to cause serious bodily injury or death.
"Excessive force" means any force that is objectively unreasonable given the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
"Kinetic impact munitions" includes impact rounds and baton rounds, such as rubber batons, bean bag rounds, foam baton rounds, and plastic, wax, wood, or rubber-coated projectiles.
"Neck restraint" means the use of any body part or object to attempt to control or disable a person by applying pressure against the neck, including the trachea or carotid artery, with the purpose, intent, or effect of controlling or restricting the person's movement or restricting the person's blood flow or breathing, including chokeholds, carotid restraints, and lateral vascular neck restraints.
(2020, Sp. Sess. I, cc. 25, 35, 37, 55.)
Editor's note. - Acts 2020 Sp. Sess. I, c. 37, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."
Acts 2020 Sp. Sess. I, c. 55, cl. 2, effective March 1, 2021, provides: "That the Department of Criminal Justice Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."
Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.
§ 19.2-83.4. Prohibited practices for law-enforcement officers during an arrest or detention.
- The use of a neck restraint by a law-enforcement officer is prohibited unless the use of a neck restraint is immediately necessary to protect the law-enforcement officer or another person from death or serious bodily injury.
- The willful discharge of a firearm by a law-enforcement officer into or at a moving vehicle is prohibited unless the discharge of a firearm is immediately necessary to protect the law-enforcement officer or another person from death or serious bodily injury.
-
The use of kinetic impact munitions by a law-enforcement officer is prohibited unless the use of kinetic impact munitions is necessary to protect the law-enforcement officer or another person from bodily injury.
(2020, Sp. Sess. I, cc. 35, 37, 55.)
Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.
§ 19.2-83.5. Use of deadly force by a law-enforcement officer during an arrest or detention.
-
A law-enforcement officer shall not use deadly force against a person unless:
- The law-enforcement officer reasonably believes that deadly force is immediately necessary to protect the law-enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death;
- If feasible, the law-enforcement officer has provided a warning to the subject of the deadly force that he will use deadly force;
- The law-enforcement officer's actions are reasonable, given the totality of the circumstances; and
- All other options have been exhausted or do not reasonably lend themselves to the circumstances.
-
In determining if a law-enforcement officer's use of deadly force is proper, the following factors shall be considered:
- The reasonableness of the law-enforcement officer's belief and actions from the perspective of a reasonable law-enforcement officer on the scene at the time of the incident; and
-
The totality of the circumstances, including (i) the amount of time available to the law-enforcement officer to make a decision; (ii) whether the subject of the use of deadly force (a) possessed or appeared to possess a deadly weapon and (b) refused to comply with the law-enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law-enforcement officer using deadly force; (iii) whether the law-enforcement officer engaged in de-escalation measures prior to the use of deadly force, including taking cover, waiting for backup, trying to calm the subject prior to the use of force, or using non-deadly force prior to the use of deadly force; (iv) whether any conduct by the law-enforcement officer prior to the use of deadly force intentionally increased the risk of a confrontation resulting in deadly force being used; and (v) the seriousness of the suspected crime.
(2020, Sp. Sess. I, c. 37.)
Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.
§ 19.2-83.6. Failure of a law-enforcement officer to intervene in use of excessive force.
- Any law-enforcement officer who, while in the performance of his official duties, witnesses another law-enforcement officer engaging or attempting to engage in the use of excessive force against another person shall intervene, when such intervention is feasible, to end the use of excessive force or attempted use of excessive force, or to prevent the further use of excessive force. A law-enforcement officer shall also render aid, as circumstances reasonably permit, to any person injured as the result of the use of excessive force.
-
Any law-enforcement officer who intervenes pursuant to subsection A or who witnesses another law-enforcement officer engaging or attempting to engage in the use of excessive force against another person shall report such intervention or use of excessive force in accordance with the law-enforcement officer's employing agency's policies and procedures for reporting misconduct committed by a law-enforcement officer. No employing agency shall retaliate, threaten to retaliate, or take or threaten to take any disciplinary action against a law-enforcement officer who intervenes pursuant to subsection A or makes a report pursuant to this subsection.
(2020, Sp. Sess. I, cc. 25, 37.)
The number of this section was assigned by Acts 2020, Sp. Sess. 1, c. 37, and the Virginia Code Commission; the number in Acts 2020, c. 25 was § 19.2-83.4 .
Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.
§ 19.2-83.7. Penalties for violations of this chapter.
In addition to any other penalty authorized by law, any law-enforcement officer who knowingly violates the provisions of this chapter shall be subject to disciplinary action, including dismissal, demotion, suspension, or transfer of the law-enforcement officer or decertification as provided in subsection D of § 15.2-1707 .
(2020, Sp. Sess. I, cc. 25, 35, 37, 55.)
The number of this section was assigned by Acts 2020, Sp. Sess. 1, c. 37, and the Virginia Code Commission; the number in Acts 2020, cc. 25, 35, and 55 was § 19.2-83.5 .
Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.
Chapter 8. Extradition of Criminals.
Fugitives From Foreign Nations.
Uniform Criminal Extradition Act.
Michie's Jurisprudence. - For related discussion, see 8A M.J. Extradition, § 2.
Article 1. Fugitives From Foreign Nations.
§ 19.2-84. Governor to surrender on requisition of President.
The Governor shall whenever required by the executive authority of the United States, pursuant to the Constitution and laws thereof, deliver over to justice any person found within the Commonwealth, who is charged with having committed any crime without the jurisdiction of the United States.
(Code 1950, § 19.1-47; 1960, c. 366; 1975, c. 495.)
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).
Article 2. Uniform Criminal Extradition Act.
Research References. - Virginia Forms (Matthew Bender). No. 9-415. Warrant of Arrest for Extradition, et seq.
§ 19.2-85. Definitions.
When appearing in this chapter:
- The term "Governor" includes any person performing the functions of Governor by authority of the law of this Commonwealth;
- The term "executive authority" includes the Governor, and any person performing the functions of Governor in a state other than this Commonwealth;
- The term "State," referring to a state other than this Commonwealth, includes any other state or territory, organized or unorganized, of the United States of America, and the District of Columbia; and
-
The term "judge" means a judge of a court of record having criminal jurisdiction.
(Code 1950, § 19.1-49; 1960, c. 366; 1975, c. 495.)
Uniform law cross references. - For other signatory state provisions, see:
Alaska: Alaska Stat. §§ 12.70.010 to 12.70.290.
Arizona: A.R.S. §§ 13-3841 to 13-3870.01.
Arkansas: A.C.A. §§ 16-94-201 to 16-94-231.
California: Cal. Pen. Code, § 1548 et seq.
Colorado: C.R.S. §§ 16-19-101 through 16-19-134.
Connecticut: Conn. Gen. Stat. §§ 54-157 to 54-185.
Delaware: 11 Del. Ch. § 2501 et seq.
Florida: Fla. Stat. § 941.01 et seq.
Georgia: O.C.G.A. §§ 17-13-20 to 17-13-49.
Hawaii: H.R.S. §§ 832-1 to 832-27.
Idaho: Idaho Code § 19-4501 et seq.
Illinois: 725 I.L.C.S. 225/1 to 225/32.
Indiana: Burns Ind. Code Ann., IC 35-33-10-3.
Iowa: Iowa Code §§ 820.1 to 820.29.
Kansas: K.S.A. §§ 22-2701 to 22-2730.
Kentucky: K.R.S. §§ 440.150 to 440.420.
Maine: 15 M.R.S. §§ 201 to 229.
Maryland: Md. Criminal Procedure Code Ann. §§ 9-101 through 9-128.
Michigan: M.C.L.S. §§ 780.1 to 780.31.
Minnesota: Minn. Stat. §§ 629.01 to 629.29.
Missouri: §§ 548.011 through 548.300 R.S. Mo.
Montana: Mont. Code Anno. §§ 46-30-101 to 46-30-413.
Nebraska: R.R.S. Neb. §§ 29-729 to 29-758.
Nevada: N.R.S. §§ 179.177 to 179.235.
New Hampshire: R.S.A. §§ 612:1 to 612:30.
New Jersey: N.J. Stat. § 2A-160-1 et seq.
New Mexico: N.M. Stat. Ann. §§ 31-4-1 to 31-4-30.
New York: NY CLS CPL §§ 570.02 to 570.66.
North Carolina: N.C. Gen. Stat. §§ 15A-721 to 15A-751.
Ohio: ORC Ann. 2963.01 et seq.
Oklahoma: 22 Okl. St. §§ 1141.1 to 1141.30.
Oregon: O.R.S. §§ 133.743 to 133.857.
Pennsylvania: 42 Pa. C.S. § 9121 et seq.
Puerto Rico: 34 L.P.R.A. § 1881 et seq.
Rhode Island: R.I. Gen. Laws § 12-9-1 et seq.
South Dakota: S.D. Codified Laws §§ 23-24-1 through 23-24-39.
Tennessee: Tenn. Code Ann. § 40-9-101 et seq.
Texas: Tex. Code Crim. Proc., art. 51.13.
Utah: Utah Code Ann. § 77-30-1 et seq.
Vermont: 13 V.S.A. §§ 4941 to 4969.
Virgin Islands: 5 V.I.C. §§ 3801 through 3829.
Washington: Rev. Code Wash. §§ 10.88.200 to 10.88.930.
West Virginia: W. Va. Code § 5-1-7 et seq.
Wisconsin: Wis. Stat. § 976.03.
Wyoming: Wyo. Stat. §§ 7-3-201 through 7-3-227.
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).
CASE NOTES
Matters of extradition are constitutionally controlled by U.S. Const., Art. IV, § 2, cl. 2. They are statutorily controlled by the Uniform Criminal Extradition Act (this article) and the Interstate Agreement on Detainers ( § 53.1-210 et seq.). Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Governor of asylum state must make findings and conclusions. - While the Constitution mandates that a fugitive in one state "shall" be returned to the demanding state, the Governor of the asylum state must make factual findings and legal conclusions following specific inquiries prior to granting extradition. First, he must determine whether the accused has been charged with a crime under the laws of the demanding state, and second, whether the accused was within the demanding state at the time of the offense. The former is generally a question of law but it may be a question of fact. The latter is generally a question of fact. The Governor's factual determination may not be set aside unless it appears conclusively that the accused could not be a fugitive. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Governor's determination of probable cause precludes further judicial inquiry in asylum state. - Once the Governor of the asylum state has acted on a requisition for extradition based on the demanding state's judicial determination that probable cause existed, no further judicial inquiry may be had on that issue in the asylum state. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Habeas court in asylum state cannot discharge person arrested on merely contradictory evidence. - A habeas court in an asylum state cannot discharge one who has been arrested under a governor's warrant where there is merely contradictory evidence on the subject of presence in or absence from the State, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused. Only when it is conclusively proved that no question can be made that the person was not within the demanding state when the crime is said to have been committed is he to be released. Manning v. Commonwealth, 1 Va. App. 60, 334 S.E.2d 151 (1985).
Only function of an Attorney General, in extradition proceedings, is to assist the Governor in determining whether extradition ought to be granted. In this sense, he is entitled to absolute immunity because of the quasi-judicial function he is performing. If it be deemed that his duty in this connection be that of an advocate, he is entitled to the absolute immunity accorded public prosecutors. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Immunity of Governor and Attorney General where statutory duty breached. - If the Governor and Attorney General, in acting on an extradition request, breach some statutory duty or are derelict in their statutory duties, they are, nevertheless, entitled to absolute immunity from damages. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Governor immune since he acts in judicial capacity. - When the Governor of an asylum state acts on an extradition request he performs a judicial function. Accordingly, he would be entitled to absolute immunity in carrying out this function. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Judicial immunity of magistrate ordering temporary confinement of extradited prisoner. - Even if, as prison inmate contended, state magistrates have no authority under the Virginia Uniform Criminal Extradition Act (UCEA) (this article) to order temporary confinement of extradited prisoners, judicial immunity would still be appropriate. The very applicability of the UCEA with regard to the inmate's transfer represented an unsettled and disputed point of law. In contrast, the general authority of magistrates to commit persons accused of crimes to jail is well established in Virginia by statute. Pressly v. Gregory, 831 F.2d 514 (4th Cir. 1987).
§ 19.2-86. Fugitives from justice; duty of Governor.
Subject to the provisions of this chapter, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, the Governor shall have arrested and delivered up to the executive authority of any other of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this Commonwealth.
(Code 1950, § 19.1-50; 1960, c. 366; 1975, c. 495.)
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).
CASE NOTES
A charge of crime is not merged in the conviction and sentence, for the purpose of extradition, but the criminal is still charged with the crime until completion of the sentence imposed upon him. United States ex rel. Faris v. McClain, 42 F. Supp. 429 (M.D. Pa. 1942).
Inapplicable to non-fleers. - Since this section addresses the extradition only of persons who have "fled from justice," and defendant was clearly not such a person, defendant's contentions with respect to the Uniform Criminal Extradition Act were without merit. Stewart v. Bailey, 7 F.3d 384 (4th Cir. 1993).
§ 19.2-87. Form of demand.
No demand for the extradition of a person charged with, or convicted of, crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under § 19.2-91 , that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from such state, and accompanied: (1) by a copy of an indictment found, (2) by a copy or an information supported by an affidavit filed in the state having jurisdiction of the crime, (3) by a copy of an affidavit made before a magistrate in such state together with a copy of any warrant which was issued thereupon, or (4) by a copy of a judgment of conviction or of a sentence imposed in execution thereof together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.
(Code 1950, § 19.1-51; 1960, c. 366; 1975, c. 495.)
CIRCUIT COURT OPINIONS
Request for extradition and affidavit incorrect. - Because the Florida extradition warrant signed by the Governor of Florida and its underlying request for extradition and probable cause affidavit were incorrect on their face, and because the office of the Secretary of the Commonwealth failed to provide a resident 10 days in which to respond to Florida's extradition warrant, the resident was entitled to have the petition for writ of habeas corpus be granted. Cole v. Commonwealth, 84 Va. Cir. 367, 2012 Va. Cir. LEXIS 38 (Fairfax County Mar. 14, 2012).
Petition for writ of habeas corpus. - Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).
§ 19.2-88. Governor may investigate case.
When a demand shall be made upon the Governor by the executive authority of another state for the surrender of a person so charged with, or convicted of, crime, the Governor may call upon the Attorney General or any other officer of this Commonwealth to investigate or assist in investigating the demand and to report to him the situation and circumstances of the person so demanded and whether he ought to be surrendered.
(Code 1950, § 19.1-52; 1960, c. 366; 1975, c. 495.)
CASE NOTES
Only function of an Attorney General, in extradition proceedings, is to assist the Governor in determining whether extradition ought to be granted. In this sense, he is entitled to absolute immunity because of the quasi-judicial function he is performing. If it be deemed that his duty in this connection be that of an advocate, he is entitled to the absolute immunity accorded public prosecutors. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Immunity of Governor and Attorney General where statutory duty breached. - If the Governor and Attorney General, in acting on an extradition request, breach some statutory duty or are derelict in their statutory duties, they are, nevertheless, entitled to absolute immunity from damages. Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
§ 19.2-89. Extradition of persons imprisoned or awaiting trial in another state.
When it is desired to have returned to this Commonwealth a person charged in this Commonwealth with a crime and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this Commonwealth as soon as the prosecution in this Commonwealth is terminated.
(Code 1950, § 19.1-53; 1960, c. 366; 1975, c. 495.)
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).
§ 19.2-90. Extradition of persons who have left demanding state involuntarily.
The Governor may also surrender on demand of the executive authority of any other state any person in this Commonwealth who is charged in the manner provided in §§ 19.2-109 to 19.2-111 , with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.
(Code 1950, § 19.1-54; 1960, c. 366; 1975, c. 495.)
§ 19.2-91. Extradition of persons not in demanding state at time of commission of crime.
The Governor may also surrender, on demand of the executive authority of any other state, any person in this Commonwealth charged in such other state in the manner provided in § 19.2-87 with committing an act in this Commonwealth, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand. The provisions of this chapter not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.
(Code 1950, § 19.1-55; 1960, c. 366; 1975, c. 495.)
CIRCUIT COURT OPINIONS
Request for extradition and affidavit incorrect. - Because the Florida extradition warrant signed by the Governor of Florida and its underlying request for extradition and probable cause affidavit were incorrect on their face, and because the office of the Secretary of the Commonwealth failed to provide a resident 10 days in which to respond to Florida's extradition warrant, the resident was entitled to have the petition for writ of habeas corpus be granted. Cole v. Commonwealth, 84 Va. Cir. 367, 2012 Va. Cir. LEXIS 38 (Fairfax County Mar. 14, 2012).
§ 19.2-92. Issuance of Governor's warrant of arrest; its recitals.
If the Governor decides that a demand for the extradition of a person, charged with, or convicted of, crime in another state should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to the sheriff or sergeant of any county or city or to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance. Any electronically transmitted facsimile of a Governor's warrant shall be treated as an original document, provided the original is received within four working days of receipt of the facsimile.
(Code 1950, § 19.1-56; 1960, c. 366; 1975, c. 495; 2001, cc. 214, 226; 2011, c. 59.)
The 2001 amendments. - The 2001 amendment by cc. 214 and 226 are identical, and added the last sentence.
The 2011 amendments. - The 2011 amendment by c. 59 inserted "working" in the last sentence.
§ 19.2-93. Manner and place of execution of warrant.
Such warrant shall authorize the officer or other person to whom it is directed to arrest the accused at any time and at any place where he may be found within the Commonwealth and to command the aid of all peace officers or other persons in the execution of the warrant and to deliver the accused, subject to the provisions of this chapter, to the duly authorized agent of the demanding state.
(Code 1950, § 19.1-57; 1960, c. 366; 1975, c. 495.)
§ 19.2-94. Assistance to arresting officer.
Every officer or other person empowered to make the arrest, as provided in the preceding section, shall have the same authority, in arresting the accused, to command assistance therein as the sheriffs and sergeants of the several counties and cities of this Commonwealth have by law in the execution of any criminal process directed to them, with like penalties against those who refuse to render their assistance.
(Code 1950, § 19.1-58; 1960, c. 366; 1975, c. 495.)
§ 19.2-95. Rights of accused persons; application for writ of habeas corpus.
No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a circuit or general district court in the Commonwealth, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof and of the time and place of hearing thereon shall be given to the attorney for the Commonwealth of the county or city in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.
(Code 1950, § 19.1-59; 1960, c. 366; 1975, c. 495; 2005, c. 839.)
The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, substituted "the Commonwealth" for "this Commonwealth"; and deleted "or trial justice" preceding "shall fix."
Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.01 Writs. Friend.
Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 16.
CASE NOTES
A petitioner is required to exhaust his state remedies as a prerequisite to seeking habeas corpus in a federal court to avoid extradition. Tickle v. Summers, 270 F.2d 848 (4th Cir. 1959).
CIRCUIT COURT OPINIONS
Petition for writ of habeas corpus. - Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).
Mental competency. - In an extradition proceeding where the mental competency of the detainee is placed in issue, due process compels the court to first determine whether the detainee is sufficiently irrational to compel a mental health evaluation; if such threshold is met, the detainee is entitled to a limited mental health evaluation, to determine whether he or she can assist counsel with the narrow inquiry of whether he or she is the person sought by the demanding jurisdiction and was present at the offense. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).
If the detainee possesses requisite capacity to assist his or her counsel, then the extradition process may proceed; if he or she lacks such cognition, he or she is instead entitled to be sufficiently restored to a level commensurate with the degree of assistance required. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).
Petitioner was entitled to a mental health evaluation limited to whether he could assist counsel to determine whether he was the person wanted by New Jersey and was present in that state at the time of the alleged offense because he exhibited sufficient irrationality; petitioner displayed consistent indicia of irrational thought and behavior sufficient to compel the circuit court to direct a limited competency evaluation. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).
"Middle of the road approach" fulfilled the constitutional right to due process in extradition proceedings applicable in Virginia, affording petitioner, having met an initial threshold test of irrationality, a right to a limited evaluation to determine whether he was sufficiently competent to consult meaningfully with his counsel with regard to his identity and presence in New Jersey at the time of the alleged offense. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).
Petitioner was entitled to a mental health evaluation, and if he was shown to possess limited required competence, he could be extradited based on the unrebutted evidence already adduced that he is the person sought; if, conversely, petitioner was found to lack the necessary fitness of mind, he could be ordered restored to the limited mental competence called for in the context of extradition proceedings, and the circuit court may revisit the extradition evidence anew at a future hearing. Solomon v. Kincaid, 105 Va. Cir. 166, 2020 Va. Cir. LEXIS 68 (Fairfax County Apr. 30, 2020).
§ 19.2-96. Penalty for noncompliance with preceding section.
Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor's warrant in willful disobedience to the last preceding section shall be guilty of a Class 1 misdemeanor.
(Code 1950, § 19.1-60; 1960, c. 366; 1975, c. 495.)
Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .
§ 19.2-97. Confinement in jail when necessary.
The officer or persons executing the Governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail shall receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.
(Code 1950, § 19.1-61; 1960, c. 366; 1975, c. 495.)
§ 19.2-98. Same; for prisoners being taken through Commonwealth.
The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this Commonwealth with such prisoner for the purpose of returning immediately such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail shall receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping, provided, however, that such officer or agent shall deliver to the jailer the warrant or legal order authorizing custody of the prisoner. Such prisoner shall not be entitled to demand a new requisition while in this Commonwealth.
(Code 1950, § 19.1-62; 1960, c. 366; 1975, c. 495.)
§ 19.2-99. Arrest prior to requisition.
Whenever: (1) any person within this Commonwealth shall be charged on the oath of any credible person before any judge, magistrate or other officer authorized to issue criminal warrants in this Commonwealth with the commission of any crime in any other state and, except in cases arising under § 19.2-91 , (a) with having fled from justice, (b) with having been convicted of a crime in that state and of having escaped from confinement, or (c) of having broken the terms of his bail, probation, or parole, or (2) complaint shall have been made before any such judge, magistrate or other officer in this Commonwealth setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under § 19.2-91 , (a) has fled from justice, (b) having been convicted of a crime in that state has escaped from confinement, or (c) broken the terms of his bail, probation or parole, and that the accused is believed to be in this Commonwealth, such judge, magistrate or other officer shall issue a warrant directed to any sheriff or to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this Commonwealth, and to bring him before any judge who may be available in or convenient of access to the place where the arrest may be made, to answer the charge of complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
(Code 1950, § 19.1-63; 1960, c. 366; 1975, c. 495.)
§ 19.2-100. Arrest without warrant.
The arrest of a person may be lawfully made also by any peace officer or private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by imprisonment for a term exceeding one year. But when so arrested the accused shall be taken before a judge, magistrate or other officer authorized to issue criminal warrants in the Commonwealth with all practicable speed and complaint made against him under oath setting forth the ground for the arrest as in § 19.2-99 , and thereafter his answer shall be heard as if he had been arrested on a warrant.
(Code 1950, § 19.1-64; 1960, c. 366; 1975, c. 495; 2021, Sp. Sess. I, cc. 344, 345.)
Cross references. - For arrest without warrant in cases of flight and pursuit, see § 19.2-77 .
For other statutes authorizing arrests without warrants, see §§ 19.2-81 and 52-20 .
Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "imprisonment" in the first sentence; substituted " § 19.2-99 " for "the preceding section" in the last sentence; and made stylistic changes.
Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 5, 12.
CASE NOTES
Reasonable information that accused stands charged with crime. - Where a Kentucky warrant on its face charged accused with the commission of a felony, it constituted "reasonable information" to a deputy sheriff of Virginia that accused stood charged in the courts of another state with a crime, punishable by "imprisonment for a term exceeding one year," and justified the local officer in arresting him without a warrant within the meaning of this section. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).
The person arrested must be taken before a judicial officer within a reasonable time, or without unnecessary delay, in order that a charge may be formulated against him. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).
Unreasonable delay constitutes false imprisonment. - Unreasonable delay in failing to comply with such statutory mandate constitutes false imprisonment. Moreover, any person who causes, induces, aids, assists or encourages an officer to delay unreasonably in bringing the arrested person before the committing judicial officer is likewise liable for such unlawful imprisonment. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).
Question for jury. - Whether an arrested person has been brought before a magistrate "with all practicable speed," as is required by this section, or without unnecessary delay, depends upon the circumstances of the particular case. Ordinarily, this is a question for the jury unless the facts are undisputed. Mullins v. Sanders, 189 Va. 624 , 54 S.E.2d 116 (1949).
§ 19.2-101. Confinement to await requisition; bail.
If from the examination before the judge it appears that the person held pursuant to either of the two preceding sections is the person charged with having committed the crime alleged and, except in cases arising under § 19.2-91 , that he has fled from justice, the judge shall, by a warrant reciting the accusation, commit him to jail for such a time, not exceeding thirty days, specified in the warrant as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in the next section, or until he shall be legally discharged.
(Code 1950, § 19.1-65; 1960, c. 366; 1975, c. 495.)
CASE NOTES
The impact of this section and § 19.2-103 is that an individual arrested in this State as a fugitive from justice in another state cannot be confined in jail upon the warrant of the judge or trial justice for longer than ninety days, sixty days of which must be on a recommitment order of a judge or trial justice. At the end of this time period, if no governor's warrant has been issued, it appears that the accused must be released. Speaks v. Pittsylvania County, 355 F. Supp. 1129 (W.D. Va. 1973).
The time period specified in this section begins to run from the date of execution of the warrant. Unless recommitted under § 19.2-103 , the Commonwealth is required to release defendant on this warrant at the end of thirty days. Speaks v. Pittsylvania County, 355 F. Supp. 1129 (W.D. Va. 1973).
§ 19.2-102. In what cases bail allowed; conditions of bond.
Unless the offense with which the prisoner is charged is shown to be an offense punishable by life imprisonment under the laws of the state in which it was committed, any judge, magistrate or other person authorized by law to admit persons to bail in the Commonwealth may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned upon his appearance before a judge at a time specified in such bond and upon his surrender for arrest upon the warrant of the Governor of the Commonwealth.
(Code 1950, § 19.1-66; 1960, c. 366; 1975, c. 495; 2021, Sp. Sess. I, cc. 344, 345.)
Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."
Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."
The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "life"; and made stylistic changes.
Research References. - Virginia Forms (Matthew Bender). No. 9-1111. Motion to Set Bail for Defendant Under Detainer.
§ 19.2-103. Discharge, recommitment or renewal of bail.
If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, any judge in this Commonwealth may discharge him or may recommit him for a further period not to exceed sixty days, or such judge may again take bail for his appearance and surrender, as provided in the preceding section, but within a period not to exceed sixty days after the date of such new bond.
(Code 1950, § 19.1-67; 1960, c. 366; 1975, c. 495.)
CASE NOTES
The impact of this section and § 19.2-101 is that an individual arrested in this State as a fugitive from justice in another state cannot be confined in jail upon the warrant of the judge, trial justice, or justice of the peace for longer than ninety days, sixty days of which must be on a recommitment order of a judge or trial justice. At the end of this time period, if no governor's warrant has been issued, it appears that the accused must be released. Speaks v. Pittsylvania County, 355 F. Supp. 1129 (W.D. Va. 1973).
§ 19.2-104. Forfeiture of bail.
If the prisoner is admitted to bail and fails to appear and surrender himself according to the conditions of his bond, any judge of a circuit or general district court by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this Commonwealth. Recovery may be had on such bond in the name of the Commonwealth as in the case of other bonds given by the accused in criminal proceedings within this Commonwealth.
(Code 1950, § 19.1-68; 1960, c. 366; 1975, c. 495.)
§ 19.2-105. Persons under criminal prosecution in this Commonwealth at time of requisition.
If a criminal prosecution has been instituted against such person under the laws of this Commonwealth and is still pending, the Governor, in his discretion, either may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this Commonwealth.
(Code 1950, § 19.1-69; 1960, c. 366; 1975, c. 495.)
§ 19.2-106. When guilt or innocence of accused inquired into.
The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.
(Code 1950, § 19.1-70; 1960, c. 366; 1975, c. 495.)
§ 19.2-107. Governor may recall warrant or issue alias.
The Governor may recall his warrant of arrest or may issue another warrant whenever he deems it proper.
(Code 1950, § 19.1-71; 1960, c. 366; 1975, c. 495.)
§ 19.2-108. Fugitives from this Commonwealth; duty of Governor.
Whenever the Governor shall demand a person charged with crime or with escaping from confinement or breaking the terms of his bail, probation or parole in this Commonwealth, from the executive authority of any other state, or from the chief justice or an associate justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this Commonwealth to some agent commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county or city in this Commonwealth in which the offense was committed. Nothing herein shall prevent the sheriff or police chief of a county or city who has been directed to execute such warrant from authorizing a private prisoner transportation company meeting the minimum qualifications set by the Department of Criminal Justice Services to receive and return the person to the Commonwealth.
(Code 1950, § 19.1-72; 1960, c. 366; 1975, c. 495; 2009, c. 848.)
The 2009 amendments. - The 2009 amendment by c. 848 added the last sentence.
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).
OPINIONS OF THE ATTORNEY GENERAL
Governor may appoint any agent he chooses to retrieve and return to court a fugitive located in another state. See opinion of Attorney General to The Honorable H. S. Caudill, Sheriff for Tazewell County, 02-096 (12/20/02).
§ 19.2-109. Application for requisition for return of person charged with crime.
When the return to this Commonwealth of a person charged with crime in this Commonwealth is required, the attorney for the Commonwealth shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made, and certifying that, in the opinion of the attorney for the Commonwealth, the ends of justice require the arrest and return of the accused to this Commonwealth for trial and that the proceeding is not instituted to enforce a private claim.
(Code 1950, § 19.1-73; 1960, c. 366; 1975, c. 495.)
§ 19.2-110. Application for requisition for return of escaped convict, etc.
When the return to this Commonwealth is required of a person who has been convicted of a crime in this Commonwealth and has escaped from confinement or broken the terms of his bail, probation or parole, the attorney for the Commonwealth, of the county or city in which the offense was committed, or the warden of the institution or sheriff of the county or city from which the escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole and the state in which he is believed to be, including the location of the person therein at the time application is made.
(Code 1950, § 19.1-74; 1960, c. 366; 1975, c. 495.)
§ 19.2-111. Form of such applications; copies, etc.
The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge of a circuit or general district court or other officer issuing the warrant stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The attorney for the Commonwealth, warden or sheriff may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the Secretary of the Commonwealth, to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.
(Code 1950, § 19.1-75; 1960, c. 366; 1975, c. 495.)
§ 19.2-112. Costs and expenses of extradition.
- The expenses incident to the extradition of any person under the four preceding sections may be paid out of the state treasury, on warrants of the Comptroller issued upon vouchers signed by the Governor, or such other person as may be designated by him for such purpose.
-
If the person extradited is found guilty, or if the person was extradited after illegally leaving the Commonwealth while on parole or on probation, the person extradited, and not the Commonwealth, shall be responsible for the costs and expenses of extradition. The state treasury shall continue to reimburse local jurisdictions for the costs and expenses of extradition. The fugitive shall pay the costs and expenses of his extradition into the state treasury.
(Code 1950, § 19.1-76; 1960, c. 366; 1975, c. 495; 1999, c. 322; 2002, c. 622.)
The 1999 amendment, added the subsection A designation, substituted "may" for "shall" in subsection A, and added subsection B.
The 2002 amendments. - The 2002 amendment by c. 622 inserted "extradited is found guilty, or if the person" in the first sentence of subsection B.
§ 19.2-113. Immunity from service of process in certain civil actions.
A person brought into this Commonwealth by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.
(Code 1950, § 19.1-77; 1960, c. 366; 1975, c. 495.)
§ 19.2-114. Written waiver of extradition proceedings.
Any person arrested in this Commonwealth charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in §§ 19.2-92 and 19.2-93 and all other procedures incidental to extradition proceedings by executing or subscribing in the presence of a judge of a circuit or district court within this Commonwealth a writing which states that he consents to return to the demanding state. However, before the waiver is executed or subscribed by the person, it shall be the duty of the judge to inform the person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in § 19.2-95 .
If and when such consent has been duly executed, it shall forthwith be forwarded to the office of the Governor and filed therein. The judge shall direct the officer having the person in custody to promptly deliver him to the duly accredited agent of the demanding state, and shall deliver or cause to be delivered to such agent a copy of the consent.
This section shall not be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an executive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this Commonwealth.
(Code 1950, § 19.1-78; 1960, c. 366; 1975, c. 495; 1992, c. 306.)
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).
Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 16.
§ 19.2-115. Nonwaiver by this Commonwealth.
Nothing in this chapter contained shall be deemed to constitute a waiver by this Commonwealth of its right, power or privilege to try such demanded person for crime committed within this Commonwealth, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this Commonwealth, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this Commonwealth of any of its rights, privileges or jurisdiction in any way whatsoever.
(Code 1950, § 19.1-79; 1960, c. 366; 1975, c. 495.)
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).
§ 19.2-116. No right of asylum; no immunity from other criminal prosecutions while in this Commonwealth.
After a person has been brought back to this Commonwealth by, or after waiver of, extradition proceedings he may be tried in this Commonwealth for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.
(Code 1950, § 19.1-80; 1960, c. 366; 1975, c. 495.)
Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).
§ 19.2-117. Interpretation of article.
The provisions of this article shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact statutes similar thereto.
(Code 1950, § 19.1-81; 1960, c. 366; 1975, c. 495.)
§ 19.2-118. Short title.
This article may be cited as the Uniform Criminal Extradition Act.
(Code 1950, § 19.1-82; 1960, c. 366; 1975, c. 495.)
Applied in Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).
Chapter 9. Bail and Recognizances.
Bail.