VA: Filing wrong version of affidavit in the return fatal error under statute

The version of the affidavit filed with the clerk after the search was not the one issued by the judge, and this is a fatal error, considering the statute on the subject. The statute being violated, the Fourth Amendment doesn’t even come into play. Campbell v. Commonwealth, 2016 Va. App. LEXIS 277 (Oct. 25, 2016):

Unlike in Quintana and Lockhart, the incomplete affidavit that was filed in this case was not the same one upon which the determination of probable cause was based. Obviously, a second page, containing Begley’s statements to support probable cause, was missing. In addition, the one page of the affidavit that was filed did not contain the handwritten notations regarding Madison Heights that appeared on the copy of the affidavit later produced by Begley at a suppression hearing. In the course of the proceedings in the trial court, the Commonwealth was unable to produce the original affidavit certified by the magistrate.

As earlier noted, the final paragraph of Code § 19.2-54 states:

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.

“The primary objective of statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). In pursuit of this objective, “[c]ourts are required to apply the plain language of a statute when possible and may not rewrite it.” Parker v. Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007).

The final paragraph of Code § 19.2-54 is no model of clarity regarding the consequences intended by the General Assembly upon a failure to comply with the statutory filing requirement. But, it provides implicitly that a search is invalid if the failure to file the required affidavit continues for thirty days. To interpret the statute otherwise would give no meaning to the word “unless.” “[W]e … presume that the legislature chose, with care, the words it used when it enacted the relevant statute.” Seabolt v. Cnty. of Albemarle, 283 Va. 717, 720, 724 S.E.2d 715, 717 (2012) (quoting Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404 (2011)).

Accordingly, we find that, pursuant to the higher standard set in Code § 19.2-54 by the General Assembly, see Moore, 553 U.S. at 173, a search is invalid and evidence obtained in the search is inadmissible if the search warrant affidavit, including the sworn statements providing probable cause, is not filed with the clerk for a period of thirty days from the issuance or execution of the warrant. Having reached the conclusion that the evidence obtained pursuant to the search warrant should have been suppressed by operation of state statute, the question of whether the search and seizure of evidence also violated the Fourth Amendment is irrelevant. As a matter of state law, the evidence was inadmissible. “The doctrine of judicial restraint dictates that we decide cases ‘on the best and narrowest grounds available.'” Commonwealth v. Swann, 776 S.E.2d 265, 267, 776 S.E.2d 265, 267 (2015) (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010)).