                                 CODE OF VIRGINIA

ISSUANCE OF WARRANT (§ 40.1-49.9)

Administrative search warrants for inspections of workplaces, based upon a
petition demonstrating probable cause and supported by an affidavit, may be
issued by any judge having authority to issue criminal warrants whose
territorial jurisdiction encompasses the workplace to be inspected or entered,
if he is satisfied from the petition and affidavit that there is reasonable and
probable cause for the issuance of an administrative search warrant. No
administrative search warrant shall be issued pursuant to this chapter except
upon probable cause, supported by affidavit, particularly describing the place,
things or persons to be inspected or tested and the purpose for which the
inspection, testing or collection of samples for testing is to be made. Probable
cause shall be deemed to exist if either (i) reasonable legislative or
administrative standards for conducting such inspection, testing or collection
of samples for testing are satisfied with respect to the particular place,
thing, or person, or (ii) there is cause to believe that there is a condition,
object, activity, or circumstance which legally justifies such inspection,
testing or collection of samples for testing. The supporting affidavit shall
contain either a statement that consent to inspect, test or collect samples for
testing has been sought and refused or facts or circumstances reasonably
justifying the failure to seek such consent in order to enforce effectively the
occupational safety and health laws, regulations or standards of the
Commonwealth which authorize such inspection, testing or collection of samples
for testing. In the case of an administrative search warrant based on
legislative or administrative standards for selecting workplaces for inspection,
the affidavit shall contain factual allegations sufficient to justify an
independent determination by the judge that the inspection program is based on
reasonable standards and that the standards are being applied to a particular
workplace in a neutral and fair manner. For example, if a selection is based on
a particular industry&#8217;s high hazard ranking, the affidavit shall disclose
the method used to establish that ranking, the numerical basis for that ranking,
and the relevant inspection history of the workplace to be inspected and the
status of all other workplaces within the same territorial region which are
subject to inspection pursuant to the legislative or administrative standards
used by the Commissioner. The affidavit shall not be required to disclose the
actual schedule for inspections or the underlying data on which the statistics
were based, provided that such statistics are derived from reliable, neutral
third parties. The issuing judge may examine the affiant under oath or
affirmation to verify the accuracy of any matter in the affidavit. After issuing
a warrant under this section, the judge shall file the affidavit in the manner
prescribed by § 19.2-54.

HISTORY: 1987, c. 643; 2014, c. 354.