§ 3.2-3942. Right of entry; warrant requirements; procedure.
A. The Commissioner may enter any public or private premises operating as apesticide business at reasonable times, with the consent of the owner ortenant thereof, and upon presentation of appropriate credentials for carryingout the purposes of this chapter.
B. If the Commissioner is denied access, he may apply for an administrativesearch warrant from a judge with authority to issue criminal warrants or amagistrate whose jurisdiction encompasses the premises.
1. No warrant shall be issued except upon probable cause and supported by anaffidavit particularly describing: (i) the place, things, or persons to beinspected or tested; and (ii) the purpose for which the inspection, testing,or collection of samples is to be made.
2. Probable cause shall exist if either: (i) reasonable legislative oradministrative standards for conducting inspection, testing, or collection ofsamples are satisfied with respect to the particular place, thing, or person;or (ii) there is cause to believe that a condition, object, activity, orcircumstance legally justifies the inspection, testing, or collection ofsamples.
3. The supporting affidavit shall contain either: (i) a statement thatconsent to inspect, test, or collect samples has been sought and refused; or(ii) facts or circumstances reasonably justifying the failure to seekconsent. If probable cause is based upon legislative or administrativestandards for selecting places of business for inspection, the affidavitshall contain factual allegations sufficient to justify an independentdetermination by the court that the inspection program is based on reasonablestandards and that the standards are being applied to a particular place ofbusiness in a neutral and fair manner.
C. Any administrative search warrant shall be effective for a period of notmore than 15 days unless extended or renewed by the judicial officer whoissued the original warrant. The warrant shall be executed and returned tothe issuing officer within the time specified or within the extended orrenewed time. The return shall list any records removed or samples takenpursuant to the warrant. The warrant shall be void after the expiration oftime unless executed or renewed.
D. No warrant shall be executed in the absence of the owner, tenant,operator, or custodian of the premises unless the issuing judicial officerspecifically authorizes that such authority is reasonably necessary to affectthe purposes of the law or regulation. Entry pursuant to such a warrant shallnot be made forcibly. The issuing officer may authorize a forcible entrywhere the facts: (i) create a reasonable suspicion of an immediate threat tothe health and safety of persons or to the environment; or (ii) establishthat reasonable attempts to serve a previous warrant have been unsuccessful.If forcible entry is authorized, the warrant shall be issued jointly to theCommissioner and to a law-enforcement officer who shall accompany theCommissioner during the execution of the warrant.
E. No court of the Commonwealth shall have jurisdiction to hear a challengeto the warrant prior to its return to the issuing judicial officer, except asa defense in a contempt proceeding or if the owner or custodian of the placeto be inspected submits a substantial preliminary showing by affidavit andaccompanied by proof that: (i) a statement included by the affiant in hisaffidavit for the administrative search warrant was false and made knowinglyand intentionally or with reckless disregard for the truth; and (ii) thefalse statement was necessary to the finding of probable cause. The court mayconduct in camera review as appropriate.
F. After the warrant has been executed and returned to the issuing judicialofficer, the validity of the warrant may be reviewed either as a defense toany Notice of Violation or by declaratory judgment action brought in acircuit court. The review shall be confined to the face of the warrant,affidavits, and supporting materials presented to the issuing judicialofficer. If the owner or custodian of the place inspected submits asubstantial showing by affidavit and accompanied by proof that: (i) astatement included in the warrant was false and made knowingly andintentionally or with reckless disregard for the truth; and (ii) the falsestatement was necessary to the finding of probable cause, the reviewing courtshall limit its inquiry to whether there is substantial evidence in therecord supporting the issuance of the warrant and shall not conduct a de novodetermination of probable cause.
(1975, c. 377, § 3.1-249.18; 1989, c. 575, § 3.1-249.58; 1993, c. 773; 2008,c. 860.)
§ 3.2-3942. Right of entry; warrant requirements; procedure.
A. The Commissioner may enter any public or private premises operating as apesticide business at reasonable times, with the consent of the owner ortenant thereof, and upon presentation of appropriate credentials for carryingout the purposes of this chapter.
B. If the Commissioner is denied access, he may apply for an administrativesearch warrant from a judge with authority to issue criminal warrants or amagistrate whose jurisdiction encompasses the premises.
1. No warrant shall be issued except upon probable cause and supported by anaffidavit particularly describing: (i) the place, things, or persons to beinspected or tested; and (ii) the purpose for which the inspection, testing,or collection of samples is to be made.
2. Probable cause shall exist if either: (i) reasonable legislative oradministrative standards for conducting inspection, testing, or collection ofsamples are satisfied with respect to the particular place, thing, or person;or (ii) there is cause to believe that a condition, object, activity, orcircumstance legally justifies the inspection, testing, or collection ofsamples.
3. The supporting affidavit shall contain either: (i) a statement thatconsent to inspect, test, or collect samples has been sought and refused; or(ii) facts or circumstances reasonably justifying the failure to seekconsent. If probable cause is based upon legislative or administrativestandards for selecting places of business for inspection, the affidavitshall contain factual allegations sufficient to justify an independentdetermination by the court that the inspection program is based on reasonablestandards and that the standards are being applied to a particular place ofbusiness in a neutral and fair manner.
C. Any administrative search warrant shall be effective for a period of notmore than 15 days unless extended or renewed by the judicial officer whoissued the original warrant. The warrant shall be executed and returned tothe issuing officer within the time specified or within the extended orrenewed time. The return shall list any records removed or samples takenpursuant to the warrant. The warrant shall be void after the expiration oftime unless executed or renewed.
D. No warrant shall be executed in the absence of the owner, tenant,operator, or custodian of the premises unless the issuing judicial officerspecifically authorizes that such authority is reasonably necessary to affectthe purposes of the law or regulation. Entry pursuant to such a warrant shallnot be made forcibly. The issuing officer may authorize a forcible entrywhere the facts: (i) create a reasonable suspicion of an immediate threat tothe health and safety of persons or to the environment; or (ii) establishthat reasonable attempts to serve a previous warrant have been unsuccessful.If forcible entry is authorized, the warrant shall be issued jointly to theCommissioner and to a law-enforcement officer who shall accompany theCommissioner during the execution of the warrant.
E. No court of the Commonwealth shall have jurisdiction to hear a challengeto the warrant prior to its return to the issuing judicial officer, except asa defense in a contempt proceeding or if the owner or custodian of the placeto be inspected submits a substantial preliminary showing by affidavit andaccompanied by proof that: (i) a statement included by the affiant in hisaffidavit for the administrative search warrant was false and made knowinglyand intentionally or with reckless disregard for the truth; and (ii) thefalse statement was necessary to the finding of probable cause. The court mayconduct in camera review as appropriate.
F. After the warrant has been executed and returned to the issuing judicialofficer, the validity of the warrant may be reviewed either as a defense toany Notice of Violation or by declaratory judgment action brought in acircuit court. The review shall be confined to the face of the warrant,affidavits, and supporting materials presented to the issuing judicialofficer. If the owner or custodian of the place inspected submits asubstantial showing by affidavit and accompanied by proof that: (i) astatement included in the warrant was false and made knowingly andintentionally or with reckless disregard for the truth; and (ii) the falsestatement was necessary to the finding of probable cause, the reviewing courtshall limit its inquiry to whether there is substantial evidence in therecord supporting the issuance of the warrant and shall not conduct a de novodetermination of probable cause.
(1975, c. 377, § 3.1-249.18; 1989, c. 575, § 3.1-249.58; 1993, c. 773; 2008,c. 860.)
§ 3.2-3942. Right of entry; warrant requirements; procedure.
A. The Commissioner may enter any public or private premises operating as apesticide business at reasonable times, with the consent of the owner ortenant thereof, and upon presentation of appropriate credentials for carryingout the purposes of this chapter.
B. If the Commissioner is denied access, he may apply for an administrativesearch warrant from a judge with authority to issue criminal warrants or amagistrate whose jurisdiction encompasses the premises.
1. No warrant shall be issued except upon probable cause and supported by anaffidavit particularly describing: (i) the place, things, or persons to beinspected or tested; and (ii) the purpose for which the inspection, testing,or collection of samples is to be made.
2. Probable cause shall exist if either: (i) reasonable legislative oradministrative standards for conducting inspection, testing, or collection ofsamples are satisfied with respect to the particular place, thing, or person;or (ii) there is cause to believe that a condition, object, activity, orcircumstance legally justifies the inspection, testing, or collection ofsamples.
3. The supporting affidavit shall contain either: (i) a statement thatconsent to inspect, test, or collect samples has been sought and refused; or(ii) facts or circumstances reasonably justifying the failure to seekconsent. If probable cause is based upon legislative or administrativestandards for selecting places of business for inspection, the affidavitshall contain factual allegations sufficient to justify an independentdetermination by the court that the inspection program is based on reasonablestandards and that the standards are being applied to a particular place ofbusiness in a neutral and fair manner.
C. Any administrative search warrant shall be effective for a period of notmore than 15 days unless extended or renewed by the judicial officer whoissued the original warrant. The warrant shall be executed and returned tothe issuing officer within the time specified or within the extended orrenewed time. The return shall list any records removed or samples takenpursuant to the warrant. The warrant shall be void after the expiration oftime unless executed or renewed.
D. No warrant shall be executed in the absence of the owner, tenant,operator, or custodian of the premises unless the issuing judicial officerspecifically authorizes that such authority is reasonably necessary to affectthe purposes of the law or regulation. Entry pursuant to such a warrant shallnot be made forcibly. The issuing officer may authorize a forcible entrywhere the facts: (i) create a reasonable suspicion of an immediate threat tothe health and safety of persons or to the environment; or (ii) establishthat reasonable attempts to serve a previous warrant have been unsuccessful.If forcible entry is authorized, the warrant shall be issued jointly to theCommissioner and to a law-enforcement officer who shall accompany theCommissioner during the execution of the warrant.
E. No court of the Commonwealth shall have jurisdiction to hear a challengeto the warrant prior to its return to the issuing judicial officer, except asa defense in a contempt proceeding or if the owner or custodian of the placeto be inspected submits a substantial preliminary showing by affidavit andaccompanied by proof that: (i) a statement included by the affiant in hisaffidavit for the administrative search warrant was false and made knowinglyand intentionally or with reckless disregard for the truth; and (ii) thefalse statement was necessary to the finding of probable cause. The court mayconduct in camera review as appropriate.
F. After the warrant has been executed and returned to the issuing judicialofficer, the validity of the warrant may be reviewed either as a defense toany Notice of Violation or by declaratory judgment action brought in acircuit court. The review shall be confined to the face of the warrant,affidavits, and supporting materials presented to the issuing judicialofficer. If the owner or custodian of the place inspected submits asubstantial showing by affidavit and accompanied by proof that: (i) astatement included in the warrant was false and made knowingly andintentionally or with reckless disregard for the truth; and (ii) the falsestatement was necessary to the finding of probable cause, the reviewing courtshall limit its inquiry to whether there is substantial evidence in therecord supporting the issuance of the warrant and shall not conduct a de novodetermination of probable cause.
(1975, c. 377, § 3.1-249.18; 1989, c. 575, § 3.1-249.58; 1993, c. 773; 2008,c. 860.)
