40.1-49.9 - Issuance of warrant.
§ 40.1-49.9. Issuance of warrant.
Administrative search warrants for inspections of workplaces, based upon apetition demonstrating probable cause and supported by an affidavit, may beissued by any judge having authority to issue criminal warrants whoseterritorial jurisdiction encompasses the workplace to be inspected orentered, if he is satisfied from the petition and affidavit that there isreasonable and probable cause for the issuance of an administrative searchwarrant. No administrative search warrant shall be issued pursuant to thischapter except upon probable cause, supported by affidavit, particularlydescribing the place, things or persons to be inspected or tested and thepurpose for which the inspection, testing or collection of samples fortesting is to be made. Probable cause shall be deemed to exist if either (i)reasonable legislative or administrative standards for conducting suchinspection, testing or collection of samples for testing are satisfied withrespect to the particular place, thing, or person, or (ii) there is cause tobelieve that there is a condition, object, activity, or circumstance whichlegally justifies such inspection, testing or collection of samples fortesting. The supporting affidavit shall contain either a statement thatconsent to inspect, test or collect samples for testing has been sought andrefused or facts or circumstances reasonably justifying the failure to seeksuch consent in order to enforce effectively the occupational safety andhealth laws, regulations or standards of the Commonwealth which authorizesuch inspection, testing or collection of samples for testing. In the case ofan administrative search warrant based on legislative or administrativestandards for selecting workplaces for inspection, the affidavit shallcontain factual allegations sufficient to justify an independentdetermination by the judge that the inspection program is based on reasonablestandards and that the standards are being applied to a particular workplacein a neutral and fair manner. For example, if a selection is based on aparticular industry's high hazard ranking, the affidavit shall disclose themethod used to establish that ranking, the numerical basis for that ranking,and the relevant inspection history of the workplace to be inspected and thestatus of all other workplaces within the same territorial region which aresubject to inspection pursuant to the legislative or administrative standardsused by the Commissioner. The affidavit shall not be required to disclose theactual schedule for inspections or the underlying data on which thestatistics were based, provided that such statistics are derived fromreliable, neutral third parties. The issuing judge may examine the affiantunder oath or affirmation to verify the accuracy of any matter in theaffidavit.
(1987, c. 643.)