(a)Authority to issue warrant. – Upon the request of a law enforcement officer or an attorney for the state, a search warrant authorized by this rule may be issued by a magistrate or a judge of a circuit court within the county wherein the property or person sought is located. (b)Property which may be seized with a warrant. – A warrant may be issued under this rule to search for and seize any:
(1) Property that constitutes evidence of the commission of a criminal offense; or (2) Contraband, the fruits of crime, or things otherwise criminally possessed; or (3) Property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (4) Person for whose arrest there is probable cause, or who is unlawfully restrained. (c)Issuance and contents. – A warrant shall issue only on an affidavit or affidavits sworn to before the magistrate or a judge of the circuit court and establishing the grounds for issuing the warrant. If the magistrate or circuit judge is satisfied that grounds for the application exist, or that there is probable cause to believe that they exist, that magistrate or circuit judge shall issue a warrant identifying the property or person to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the magistrate or circuit judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses the affiant may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to the sheriff or any deputy sheriff of the county, to any member of the department of public safety, or to any police officer of the municipality wherein the property is located, or to any other officer authorized by law to execute such search warrants. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant may be executed either in the day or night. It shall designate a magistrate to whom it shall be returned. (d)Execution and return with inventory. – The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. (e)Motion for return of property. – A person aggrieved by an unlawful search and seizure may move the circuit court for the county in which the property was seized for the return of the property on the ground that he or she is entitled to lawful possession of the property. The judge 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 to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the circuit court of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12. (f)Motion to suppress. – A motion to suppress evidence may be made in the court of the county of trial as provided in Rule 12. (g)Return of papers to clerk. – The magistrate before whom the warrant is returned shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk of the magistrate court for the county in which the property was seized. (h)Scope and definition. – This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrant in circumstances for which special provision is made. The term property is used in this rule to include documents, books, papers and any other tangible objects. The phrase law enforcement officer is used in this rule to mean any state agent, other than an attorney for the state as defined in Rule 54(c), who is engaged in the enforcement of the criminal laws and is within any category of officers authorized by law to request the issuance of a search warrant.
W.Va. R. Crim. P. 41
Effective October 1, 1981; amended effective July 1, 1990;September 1, 1995.
