CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-1. Search warrant -- Who may issue.
A search warrant authorized by this article may be issued by
a judge of a court having jurisdiction to try criminal cases in the
county, or by a justice of the county, or by the mayor or judge of
the police court of the municipality, wherein the property sought
§62-1A-2. Same -- Grounds for issuance; property defined.
A warrant may be issued under this article to search for and
seize any property
(a) Stolen, embezzled or obtained by false pretenses; or
(b) Designed or intended for use or which is or has been used
as a means of committing a criminal offense; or
(c) Manufactured, sold, kept, concealed, possessed,
controlled, or designed or intended for use or which is or has been
used, in violation of the criminal laws of this state heretofore or
The term "property" shall include documents, books and papers
and any other tangible objects.
§62-1A-3. Same -- Issuance and contents.
A warrant shall issue only upon complaint on oath or
affirmation supported by affidavit sworn to or affirmed before the
judge or magistrate setting forth the facts establishing the
grounds for issuing the warrant. If the judge or magistrate is
satisfied that there is probable cause to believe that grounds
therefor exist, he shall issue a warrant identifying the property
and particularly describing the place, or naming or particularly
describing the person, to be searched. The warrant shall be
directed to the sheriff or any deputy sheriff or constable of the
county, to any member of the department of public safety or to any
police officer of the municipality wherein the property sought is
located, or to any other officer authorized by law to execute
search warrants. It shall state the grounds or probable cause for
its issuance and the names of the persons whose affidavits have
been taken in support thereof. It shall command the officer to
search forthwith the person or place named for the property
specified, to seize such property and bring the same before the
judge or magistrate issuing the warrant. Such warrant may be
executed either in the day or night.
§62-1A-4. Same -- Execution and return with inventory.
The warrant may be executed and returned only within ten days
after its date. The officer taking property under the warrant
shall give to the person from whom or from whose premises the
property is taken a copy of the warrant and a receipt for the
property taken; or if the person from whose premises the property
is taken is not present at the time, the officer shall leave the
copy and receipt at the place from which the property is taken. The
return shall be made promptly and shall be accompanied by a written
inventory of any property taken. The judge or magistrate shall
upon request deliver a copy of the inventory to the person from
whom or from whose premises the property was taken.
§62-1A-5. Breaking and entering premises.
The officer may break into a house, building or structure, or
any part thereof, or anything therein, or any vehicle, vessel or
other conveyance, to execute a search warrant, or commit such
breaking as may be necessary to liberate himself or a person aiding
him in the execution of the warrant. If the place to be searched
is a dwelling he shall not attempt a forcible entry until he shall
have given notice of his authority and purpose and shall have been
§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. 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. 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 shall not 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-7. Disposition of seized property.
Property taken pursuant to the warrant shall be preserved as
directed by the court or magistrate for use as evidence and
thereafter shall be returned, destroyed or otherwise disposed of as
the court or magistrate may direct.
§62-1A-8. Purpose of article; construction of other provisions
dealing with search warrants; repeal of inconsistent
It is intended that this article govern the issuance and
execution of all search warrants, and no subsequent legislation
shall be held to supersede or modify the provisions of this article
except to the extent that such legislation shall do so specifically
and expressly. It is recognized that throughout this code there
are many provisions dealing with the issuance and execution of
search warrants, and it is not possible at this time to amend and
reenact or to specifically repeal those provisions. Accordingly,
all such provisions shall be construed so as to conform to and be
consistent with the pertinent provisions of this article. In the
event that there are provisions in this code so inconsistent with
the provisions of this article as to preclude such construction,
such other provisions are hereby repealed to the extent of such
If any provision of this article or the application thereof to
any person or circumstance is held invalid, such invalidity shall
not affect other provisions or applications of the article which
can be given effect without the invalid provision or its
application, and to this end, the provisions of this article are
declared to be severable.
WVC 62 - 1 A- 10
§62-1A-10. Motor vehicle searches.
(a) A law-enforcement officer who stops a motor vehicle for an
alleged violation of a traffic misdemeanor law or ordinance may not
search the vehicle unless he or she:
(1) Has probable cause or another lawful basis for the search;
(2) Obtains the written consent of the operator of the vehicle
on a form that complies with section eleven of this article; or,
(3) Obtains the oral consent of the operator of the vehicle
and ensures that the oral consent is evidenced by an audio
recording that complies with section eleven of this article.
(b) Notwithstanding the provisions of subsection (a) of this
section, should a form meeting the requirement of section eleven of
this article or an audio recording device be unavailable a
handwritten consent executed by the vehicle operator and meeting
the consent requirements of section eleven of this article will
(c) Notwithstanding the provisions of subsection (a) or (b)of
this section should a court find that the officer had a reasonable
suspicion of dangerousness to his or her safety which precluded
recordation of the consent the recordation requirements of this
section shall be found inapplicable.
(d) Failure to comply with the provisions of this section
shall not, standing alone, constitute proof that any consent to
search was involuntary.
(e) A finding by a court that the operator of a motor vehicle
voluntarily and verbally consented to a search of the motor vehicle
shall make the recordation requirements of this section
(f) Nothing contained in this section shall be construed to
create a private cause of action.
(g) This section takes effect on January 1, 2011.
WVC 62 - 1 A- 11
§62-1A-11. Rules for certain evidence of consent to vehicle
(a) To facilitate the implementation of section ten of this
article the Governor's Committee on Crime, Delinquency and
Corrections shall promulgate emergency and legislative rules in
accordance with article three, chapter twenty-nine-a of this code
to establish the requirements for:
(1) A form used to obtain the written consent of the operator
of a motor vehicle under section ten of this article; and
(2) An audio recording used as evidence of the oral consent of
the operator of a motor vehicle under section ten of this article.
(b) The form required under subsection (a) of this section
(1) A statement that the operator of the motor vehicle fully
understands that he or she may refuse to give the law-enforcement
officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is
freely and voluntarily giving the law-enforcement officer consent
to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may
withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) The make and the registration number of the vehicle to be
(6) The name of the law-enforcement officer seeking consent.
(c) The rules adopted under subdivision (2), subsection (a) of
this section must require the audio recording to reflect an
affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the
operator may refuse to give the law-enforcement officer consent to
search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving
the law-enforcement officer consent to search the motor vehicle;
(3) The operator of the motor vehicle was informed that he or
she may withdraw the consent at any time during the search.
(d) The Governor's Committee on Crime, Delinquency and
Corrections shall promulgate the emergency and legislative rules
required by this section no later than December 31, 2010.