H. B. 2425
(By Delegates Perry, Stemple,
Crosier and Beach)
February 16, 2005
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §62-1A-6 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §62-1A-10, all relating to providing
a statutory good faith exception for evidence obtained during
the execution of a search warrant, arrest warrant or capias,
which is later determined to be invalid.
Be it enacted by the Legislature of West Virginia:
That §62-1A-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §62-1A-10, all to read as
ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-6. Motion for return of property and to suppress evidence.
A person aggrieved by an unlawful search and seizure may move
for the return of the property and to suppress for use as evidence anything so seized on the ground that: (1) The property was
illegally seized without a warrant; or (2) the warrant is
insufficient on its face; or (3) the property seized is not that
described in the warrant; or (4) there was not probable cause for
believing the existence of the grounds on which the warrant was
issued; or (5) the warrant was illegally executed, unless the
applicable court determines that section ten of this article
If the offense giving rise to the issuance of the warrant
be one which a magistrate has jurisdiction to hear and determine,
the motion may be made to him or her.
If the offense is cognizable
only before a court of record the motion shall be made to the court
having jurisdiction. The judge or magistrate shall receive
evidence on any issue of fact necessary to the decision of the
motion. If the motion is granted, the property shall be returned
unless otherwise subject to lawful detention and it
be admissible in evidence at any hearing or trial. The motion may
be made before trial or hearing upon three days' notice, or, the
motion may be made or renewed at the trial or hearing.
§62-1A-10. Good faith exception to improper search warrant.
Anytime a search warrant, arrest warrant or capias has been
issued, and a law-enforcement officer executes the search warrant
reasonably relying in good faith on the issuance of the search
warrant, arrest warrant or capias, any evidence obtained may not be
excluded based upon a search warrant, arrest warrant or capias that is later determined to be invalid, unless failure to apply the
exclusionary rule would compromise a defendant's constitutional
NOTE: The purpose of this bill is to provide a statutory good
faith exception to the exclusionary rule when evidence has been
obtained during an execution of a search warrant, arrest warrant or
capias, which is later determined to be invalid, as long as the
officer obtaining the evidence has relied in good faith on the
search warrant, arrest warrant or capias.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
§62-1A-10 is new; therefore, strike-throughs and underscoring
have been omitted.