Virginia Lawyers Weekly VA Lawyers Weekly
Where a man sued a sheriff and employee in the sheriff’s office for their alleged roles in the issuance of a search warrant, the suit was stayed. The civil discovery required in this action would threaten the ongoing criminal investigation related to the search warrant by potentially requiring defendants to disclose confidential investigatory information.
Background
On Oct. 3, 2022, a Virginia magistrate issued a search warrant for plaintiff Samuel Orlando’s residence. Plaintiff alleges that at least 20 officers arrived at his residence to execute the warrant and seized hundreds of items, documents and electronic evidence. Plaintiff’s complaint alleges several counts arising out of and related to this search warrant.
Donald Smith (Augusta County Sheriff) and Brian Jenkins (a major in the sheriff’s office) are defendants in this suit. They have moved to stay the suit, and Smith has filed a motion to dismiss.
Stay
Defendants have filed motions to stay on the grounds that, pursuant to Younger v. Harris, 401 U.S. 37 (1971), the court must not improperly interfere with the pending Virginia criminal investigation of plaintiff including the administration of the contested search warrant. Abstention is appropriate when a case “falls into one of the three settled categories” to which Younger applies. Those categories include (1) “pending state criminal proceeding”; (2) “civil proceedings that are akin to criminal prosecutions” and (3) civil proceedings that “implicate a State’s interest in enforcing the orders and judgments of its courts.”
Ongoing state proceeding
First, though the plaintiff is not under indictment, search warrants are administered and supervised by the state court. A state magistrate is responsible for issuing the warrant in the first place. Once it has been issued, the administration and subsequently seized property are overseen by the circuit court. Simply put, a search warrant cannot be issued or executed without a state court proceeding.
Second, this is consistent with other courts’ understanding of pre-indictment functions under supervision of a state court. The civil discovery required in the federal action would threaten the ongoing criminal investigation related to the search warrant by potentially requiring defendants to disclose confidential investigatory information.
Additionally, failure to stay the case would present significant challenges to conducting meaningful discovery in the federal action. Because of the ongoing state criminal investigation, the ability to meaningfully take depositions or obtain records would be substantially hampered by both parties’ and nonparties’ Fifth Amendment privileges.
Important state interest
For purposes of Younger abstention, Virginia’s interest in supervising search warrants constitutes an important state interest. This is consistent with Supreme Court decisions that instruct federal courts not to hear challenges to searches and seizures related to pending criminal investigations.
Judicial review
Plaintiff argues that because he seeks only monetary damages, rather than injunctive or declaratory relief, he does not have an opportunity for judicial review of his claims in state court. However, Younger’s principles have been consistently extended to actions for damages, and it is appropriate to do so in this case.
If criminal charges were brought in this case, the validity of the search warrant would certainly be an issue in the state proceedings. And in Virginia, a target of a search warrant has an adequate remedy at state law to challenge the seizure of evidence even if charges are not filed under Virginia Code § 19.2-60, which allows a person to request return of property or suppress its use as evidence. While it is true that damages would not be available in the state system for plaintiff’s claim, the abstention doctrine is equipped for such a situation: the doctrine calls for staying of the case, not dismissal.
However, the court does share plaintiff’s concern that because no indictment has been brought, there is no end date in sight for when the state court proceedings will conclude. To that end, the court will stay this case but require an update regarding the state court proceedings from defendants within six months. Younger principles dictate a stay in this case, but they do not allow for an indefinite delay.
Defendants’ motions to stay granted. Defendant’s motion to dismiss denied without prejudice.
Orlando v. Smith, Case No. 5:22-cv-062, May 8, 2023. WDVA at Harrisonburg (Urbanski). VLW 023-3-242. 9 pp.
