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Failure to Follow Virginia Search Warrant Statute Not Fourth Amendment Violation

A Newport News U.S. District Court denies defendant’s motion to suppress two plastic bags containing cocaine and marijuana discovered on his person when police stopped the vehicle in which defendant was a passenger and had the occupants exit when they smelled marijuana; the alleged failure by police to attach the affidavit to the warrant served on defendant is not fatal to the search.

After all three of the vehicle’s occupants were detained, police searched the vehicle, finding suspected cocaine residue inside the center console. All three occupants were arrested for cocaine possession. In the search of defendant incident to the arrest, the officer felt what he believed to be a bag of narcotics in the area of defendant’s buttocks. After advising defendant of his Miranda rights, the officer inquired whether defendant was hiding anything in his buttocks. Defendant advised that he was not.

The sergeant attempted to see if the suspected bag of narcotics was loose in defendant’s underwear, and saw a clear plastic bag protruding from defendant’s buttocks. He then tucked defendant’s t-shirt and sweatshirt into his pants, secured defendant’s belt above his waist, and tucked his pant legs into his socks, taping them with duct tape to make certain that nothing would fall out. Defendant vomited over the highway guardrail prior to being placed in the police unit. A cell phone and $440 in currency were recovered from defendant’s right front pocket.

Defendant was transferred to police headquarters and observed visually while a search warrant was obtained. Police executed the warrant and saw a plastic bag with marijuana in it and a plastic bag with cocaine in it inside defendant’s buttocks. A doctor removed the bags, causing them to fall into defendant’s pants, and the officer retrieved them. Defendant was discharged from the hospital and transported to city jail.

Virginia Code § 19.2-54 requires an affidavit prior to the issuance of a search warrant and § 19.2-56 requires that the magistrate attach to the search warrant a copy of the affidavit, which then becomes part of the warrant and is to be served along with it. Thus, it appears that under applicable Virginia law, the affidavit should have been attached to and served with the search warrant.

However, even if this court were to accept that the officer’s failure to attach the affidavit to the warrant was in fact a violation of applicable Virginia law, it does not necessarily follow that this violation of state law rises to the level of a violation of defendant’s Fourth Amendment rights, which might warrant suppression of the drug evidence. The Newport News police’s alleged failure to attach the affidavit to the search warrant at the time it was served on defendant cannot, in and of itself, be considered a violation of defendant’s Fourth Amendment rights. Further, it appears that Virginia law does not require suppression of evidence merely because of a violation of Va. Code § 19.2-56. A Virginia circuit court reached the same result in a similar situation in Commonwealth v. Hoverstadt [VLW 001-8-051]. This determination is also consistent with relevant federal and Supreme Court jurisprudence.

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