Simpson v. Commonwealth of Virginia — Nighttime-search authorization did not have to be served with warrant

Case
Gregory Leonard Simpson v. Commonwealth of Virginia
Court
Court of Appeals of Virginia
Judge
MARY GRACE O’BRIEN (elected 2015); Friedman; Frucci
Date Decided
October 27, 2026
Docket No.
1595-25-4
Topics
Search warrants; Nighttime searches; Child pornography; Statutory interpretation
Source
Read the full opinion

Background

After Google reported uploads of child abuse material associated with Simpson’s account and Verizon linked the relevant IP addresses to him, a Culpeper County detective obtained a warrant to search Simpson’s home for child pornography. The warrant initially authorized execution only between 8:00 a.m. and 5:00 p.m.

When deputies could not find anyone home during those hours, and a neighbor said the residents typically did not return until 7:00 p.m., the detective submitted a separate affidavit seeking authorization for a nighttime search. A judge authorized execution “at any time.” Deputies executed the warrant at 5:32 a.m. and gave Simpson the warrant and its probable-cause affidavit, but not the separate nighttime-search authorization. After the circuit court denied his exclusion motion, Simpson entered a conditional guilty plea to possession of child pornography.

The Court’s Holding

The Court of Appeals affirmed. Code § 19.2-56(B)’s requirement that officers give the person searched “a copy of the search warrant and affidavit” refers to the probable-cause affidavit that, under subsection A, becomes part of the warrant and must be served with it.

The statute did not likewise make the affidavit supporting a nighttime-search authorization part of the warrant or require officers to serve it. The court emphasized that the statute distinguishes between “the” probable-cause affidavit and “an” affidavit establishing particularized good cause for a nighttime search. Simpson did not challenge probable cause or the sufficiency of the nighttime authorization itself.

Key Takeaways

  • Virginia law requires service of the search warrant and its probable-cause affidavit, not the separate affidavit supporting a nighttime-search authorization.
  • A nighttime-search authorization is an additional judicial approval for execution timing, not an extension of the warrant that must be served with it.
  • The exclusion provision in Code § 19.2-56(B) did not apply because officers complied with the statute’s service requirement.

Why It Matters

In this first-impression ruling, the court clarified the documents officers must provide when executing a residential search warrant authorized for nighttime execution. The decision rejects suppression based solely on the failure to furnish the separate affidavit establishing good cause for the nighttime search.

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